Non-payment by client on an invoice. What to do?

[atdemeo]

If anyone has advice or similar experiences which may be of assistance, I would greatly appreciate your input.

Some time around May 2013, I was approached by a representative for a small company looking to hire me as an LD/Programmer for a small concert lighting design. After a few repeat interviews/discussions, We agreed upon what services I would supply, and a given rate for each service. I was brought in for a site-survey, a 3D vector works CAD drafting of the Stage, and a programmed Lighting Design for the concert.

In short, the design was not as grand as we had hoped (due to circumstances out of my control, see background below for full explanation), but the show looked good, the audience loved it, and the client was happy. With the two added days of programming, my invoice went up as it was billed hourly, but the company agreed to the extra cost when we agreed to the extra days.

I submitted my invoice during the last week of September 2013. More than 3 months later, I have yet to receive payment for services rendered. I have made numerous calls to the company and my company contact, and left dozens of voicemails. In reply, I have received a number of texts saying something along the lines of "the check will be sent tomorrow" or "i'll take care of it soon" "let me check with the bookeeper," etc. My phone calls have never been answered, nor have they returned any of my calls.

I'm looking for advice on the best course of action to arrange for payment. Its looking like my best option is a NY Small Claims Court. I have records of emails, text messages, I'm trying to get my phone call history as well, all as supporting evidence. There is plenty of documentation of the actual concert as well. Unfortunately, we only had a verbal contract, no actual contract in writing. (I'm not sure on the legality of verbal contracts in NY) Is Small Claims court the best option? Has anyone had success in other ways? Recommendations on the best course of action?

Thanks for your help!



Here is the Background if you are interested:

The venue at which the concert was to be held was under construction when I was brought in for the site survey. The venue assured the company that there would be a fully operational professional grade lighting rig available for use. I brought up the potential challenges this presented (not knowing what the rig consisted of, the positions of the fixtures, etc.) but explained that as long as I had 2-3 days of programming time on a functioning rig, that I could still execute a proper Design. (It was clearly established that at the time of our use of the space, that the rig would be fully operational and ready for use). [DAY 1] When the programming day arrived, I was at the venue at the agreed time, with the company rep who hired me. It turned out that they failed to schedule the venue, and thus we were forced out of the building. The rep and I relocated to a coffee shop, and we compared cue lists, and worked through some offline programming. [DAY 2] I arrived on site to find that the house electrician was not scheduled to be on site, and thus I was unable to work for the first half of the day, until someone (a maintenance man) arrived to fire up the rig, and give me access to the control booth. As the House electrician was not on site, the second half of this day was in work light so that the band could rehearse, as the "maintenance man" only knew how to turn on half of the rig. I managed to patch and channel to my liking, and transfer some offline content onto the house desk. I should note that the "professional grade" rig consists of Chinese knockoffs of Elation fixtures.

In short, of the first two scheduled 10 hour programming days, I did little to no programming (only had about 4 hours behind the desk). The client was well aware for these setbacks, as they were onsite with me for the entire ordeal. It was agreed that I would come in for an additional Two 10 hour days of programming. [One of which days I had to call out of another gig]

[DAY 3] I arrive onsite to once again find that the House Electrician did not show as scheduled. After a few hours of troubleshooting, I discover that the fixture profiles were custom built and in most cases not built properly. It turns out that the House Electrician was also the "Programmer" and had custom built all the fixture profiles, as the fixtures were all knockoffs and did not have profiles available for download. So Day 3 consisted of rebuilding the profiles so that I could actually use the fixtures, and troubleshooting the fixtures which were plagued with manufacturing issues. (I'm talking the cheapest knockoffs you can find in all of China).
[DAY 4] The client and I mutually agreed to break away from the heavy cueing style and go with a more loose busking style for the show, due to the unforeseen setbacks in the programming process. Day 4 was fully utilized building effects and looks, and essentially creating the whole show.
[Day 5] Load-in/performance 1. Day 5 was a 16 hour day, beginning with load-in of risers, video/projection, Video recording gear, and sound check. The client insisted I be on site for all of this, despite the cost as these added hours pushed my day into OT. After a run through, there was a short meal and then the first performance, which went quite well given the circumstances.
[Day 6] Performance 2 - The last day of work, essentially a repeat of Day 5 from sound check through end of performance.​

 

[len]

1. Find the main number for the company.
2. Call and ask for Accounts Payable. Get the name of the person you speak with, and their title.
3. Explain the situation and send them an invoice, making it clear that the account is already significantly past due, and that full payment is due immediately. If you feel it necessary, send it certified. It's possible that this never got to AP. If they already have an invoice and are refusing, take them to small claims court.

 

[atdemeo]

I should explain that "Company" is more akin to a small Business in this case. A few individuals created a start-up management company. However I do have an "office" number I can contact and ask for accounts payable. I do know that they did receive the invoice. I would send it via certified mail, but as of yet I have been unable to get the business address for the company.

Thanks for your input!

 

[MNicolai]

I stopped reading after you said you didn't have a contract. A verbal agreement is generally looked upon as a legally binding agreement, but the problem is showing evidence of said agreement in a court of law. If all you've got as evidence is your word against theirs (without any texts, emails, recorded conversations, memos, what-have-you), you will find it's very difficult to prove you had any agreement of the sort in place.

You can try contacting the highest person in the food chain at this company. If in doubt, bother the president -- in a small business, sometimes this person doubles as Accounts Payable. Start by speaking kindly and saying your invoice is substantially past due, followed up by saying if they are unable to pay, you can work out some sort of payment plan, but if they fail to pay anything at all in the next (x) number of weeks, they should expect to be contacted by your lawyer.

And yes, you should have a lawyer involved. In this case, it may be the difference between not getting paid at all and getting paid less than you anticipated (after your unexpected legal fees). In the future, it'll be the difference between getting paid on time in full or getting paid late in full with interest and additional compensation for any of your legal fees so you don't need to pay for that out of pocket.

And whatever you do, don't send a heart-wrenching letter or try to bring emotion into this. The moment you do that, it says you have no more moves left and nobody is going to take you seriously.

If they just don't have the money and you can agree on a payment plan -- for whatever it's worth to you -- our experience with past due clients is that a client who will keep paying you regularly (even if it's only $1 at a time) is far more likely to pay you in full when they can than a client who outright refuses to pay you anything.

Lastly, shame on you for producing work without a signed contract.

 

[Dovahkiin]

If you end up in small claims court, make sure to bring any texts or emails that mention them paying you, especially if they say the amount. The ones saying they agree to paying for the extra days would also be helpful. If no amount is ever discussed, ask around and get documentation from other people with your job showing their typical rates so the judge can see that you're not just trying to hoodwink them.

 

[StradivariusBone]

Some nomenclature clarification here- you are talking about an oral agreement or contract. A verbal contract would imply that words were used, written or otherwise. Apparently, oral contracts are binding, provided there are witnesses and/or evidence of an agreement being reached. Googling turned this up- http://www.legalzoom.com/business-law/contract-law/oral-contracts-do-they-carry

I work part-time for my church and use oral contracts frequently when outside groups require audio or lighting services. There's no point to going to the trouble of a contract since the rate's pretty low and it's easier to handle everything over the phone/email. I've only had one instance of non-payment and it was resolved by having the church office call and threaten to hold their damage waiver.

It sounds like you do have a good deal of evidence in your favor. It's obvious you did the work and easy to prove that people get paid for that sort of work. I think some of the other posts on here give pretty good advice as to how to proceed. Good luck and shame on them for putting you on the ropes!

 

[lwinters630]

In light of you not having a signed contract, send a letter with the dates time and $$ amounts. it may be a cover letter and stamenti of account. Ask them to review the statement and reply in writing within 15 days if this is not correct. Otherwise send payment before xxx date to avoid additional collection costs.

Send registered mail.

A stated account, if not disputed, can be proof of debt.

Next time, get things in writing.