Law Gurus: Need Help! edit 11/02: they filed Bankrupcy (not)

[FrustratedBride]

Hello, my name is Frustrated Bride and my fiance is a member of this forum. He suggested that I join and see what help we could get against our situation. (I need anonymity because I know that these people browse Internet Bridal Forums like theknot.com, etc...)

Basically, we interviewed many photographers for our wedding, and decided with one (I'll call them XY (male and female)). We interviewed XY, and signed a contract with them.

We interviewed them in person, and one of the questions we asked was that if they book more than one wedding a day, and XY said No. Another question we asked was that X and Y would do our wedding, and they said Yes. This information, along with many other questions, was recorded in a Wedding Photographer Questionnaire. Everything seemed fine, until certain events were uncovered.

A lot of people started speaking out against XY. People were saying that XY would constantly make excuses for being "late". "Late" means that they didn't show up to Engagement sessions, or the photographs that were ordered were very late. These excuses included: X/Y was sick, XY 's baby was sick, X/Y got in a car accident, XY hired an in-experienced assistant, X/Y forgot. I am a bride-to-be on other Bridal Forums, and after some coincidental searching, apparently they double-booked our wedding date (almost triple-booked, as far as we know).

There are also a lot of accounts from other people about XY's services. A bride said that X had a bad accident, so he ended up doing the Wedding on Vicodin. Another bride said that XY left early, when they specifically said that they will stay as long as it takes to get the pictures. One bride said that XY was using a Wedding Album from a different photographer, passing it off as their own, and that XY had been contacted by that photographer to stop using his photographs. When we found that out, we realized that, we, too, were shown photographs by another photographer, passed on as their own. Through all this chaos, XY's website went down, their email no longer worked, and their voice mailbox was full.

So now we are in a bind. We finally were able to get into contact with XY and confronted XY with this information to see their reaction. In our contract, we can cancel the contract, but then full payment is due. We wanted to cancel our contract with XY, based upon having them double-book us, and with them passing someone else's work as their own (showing unethical practices and the principle of "we hired you because we and a lot of other people thought your work was good"). During the interview, we asked XY if they would be the ones photographing our Wedding, the answer was Yes but with the clause "unless something happens". Well, apparently double-booking qualifies as something happening. Also, XY admitted to double-booking us, and also admitted to showing photography done by someone else to us.

So basically we're wondering, do we have enough information to take them to Small Claims Court to get our deposit back? What information can we extract from above be valid points to bring up?

If you read it this far, thank you for your time! And we appreciate any help anyone can give us

-Frustrated Bride

P.S. I wasn't sure if I should have used the actual names/business of the photographers. However, if you looked on other Bridal Forums, it's not too hard to find out who they are...


Cliffs:
- XY photography double-booking our Wedding Date
- XY passed on photography to us their own
- Grounds for Small Claims Court?



major edit (10/11/06, 10PM PST):

Some information has been miscontrued and needs to be clarified. I (the Fiance a.k.a. the AnandTecher) be taking over for writing our predicament, and try to present the information as accurately as possible. Therefore, the above will be edited to reflect the most current information, as of this edit date. I'll also be adding responses to the end of the OP, so people don't have to scroll in the middle of the thread for posts. Now the Following will be a collection of responses that we've made:

When we interviewed XY, we had a 5-page Wedding Photographer Questionnaire, a list of things to ask the photographer about their business. One of the questions was that if they book more than one wedding a day, and XY said No, which we wrote down. It's not stated in the contract, but we have it written during the interview process. Another question was that if XY would be doing our photography, and they said Yes (also written down).

I didn't think other people's experiences would be valid in court. But I can try to get statements if that would help. I'm in the process of obtaining the other girl's contract to show that they double-booked our date.

I didn't know you had a few minutes for explanation in Small Claims Court. Thanks for the info! My Fiance said (edit: after looking at the pictures from the originating photographer's website, he's positive that at least 2 of the pictures belonged to a different photographer than XY's)


We've tried, but they said that double-booking and questioning the validity/credibility of their work were not grounds for a contract cancellation. Also in the contract, they said they have the right to demand the entire fee if we didn't need their services and there was not a good reason. We gave a 50% deposit, to save that wedding date, and paid it a few months ago, as a check.

Everything's been pretty well-documented. I honestly doubt they'd pay back the deposit, even if we did win in Small Claims.

We asked them if they do more than one wedding a day, and they said No (written down on our interview sheet). They said we would have them for the entire day.

That is some good news. Just because we agreed with one thing orally, and if it differs slightly or not covered in the contract, it seems that we have a good chance in Small Claims.

We're already looking for other photographers. XY would cancel with us, but will not give us our deposit back (edit: and want full payment). They might be completely unethical and not give a damn about word-of-mouth/repeat business. We've complained to the IC3, but will probably do the BBB next.

We paid with a Check, less than $500. I don't want to give the exact amount of the Deposit, just for anonymity's sake.
We're already looking for another photographer, but it doesn't sit well knowing that someone else has our money for no good reason

We heard good things from at least 5-10 people. There's no way we would have hired someone without hearing from other people's experiences (whom said their pictures came out well). Also, the interview process went well. But all of a sudden, this stuff happened...

Sorry, after looking at the contract, there was no "good reason" clause for out. If we canceled their services (and still have the Wedding), they want full payment.

We're not suing (going to Small Claims) because we feel that something bad's going to happen on our Wedding Day. We want out because they double-booked us (when we recorded that they don't book more than 1 wedding a day, which means they lied to us), and misrepresented their work (showing another photographer's photos as their own to us).

The Deposit is less than $500, in the form of a Check (50%). I don't want to give the exact amount of the Deposit, just for anonymity's sake. I know they read other Bridal Forums (and who knows what other forums) in order to prepare their answers from questions or comments they read.


(Most likely) final edit 11/02/06: They declared Bankruptcy. Not sure which Chapter, but does it really matter now? So about 20 brides are screwed. Go justice system...

edit again: 12/02/06, bankruptcy most likely a lie

 

[Corporate Thug]

one of the questions we asked was that if they book more than one wedding a day, and XY said No.

is this in writing?

To be absolutely honest, it seems that all the stuff about their past practices is fairly irrelevant to your case unless you are planning to bring those people in court with you...

 

[bsobel]

Yes sue. Bring PROOF of the double/triple booking. Prebooking does not qualify as an emergency in your contract, regardless of what they claim. Now internet postings are not going to count as proof. Best bet is to contact the double/triple bookies and get items from them showing you were all booked for the same day/time.

As far as passing off other photos as your own, they didn't do that to you, so I would not persue that avenue. You're only going to have a few minutes in front of a small claims judge. You want your story to be brief and understandable. Claiming other wrong (but legally irrelevant) issues will waste your time and just confuse the issue.

Bill

 

[Corporate Thug]

Originally posted by: bsobel
Yes sue. Bring PROOF of the double/triple booking. Prebooking does not qualify as an emergency in your contract, regardless of what they claim. Now internet postings are not going to count as proof. Best bet is to contact the double/triple bookies and get items from them showing you were all booked for the same day/time.

As far as passing off other photos as your own, they didn't do that to you, so I would not persue that avenue. You're only going to have a few minutes in front of a small claims judge. You want your story to be brief and understandable. Claiming other wrong (but legally irrelevant) issues will waste your time and just confuse the issue.

Bill

but thats just the thing: how can the double booking be an issue at all unless there is a written clause that says they will not book more than one event per day?

 

[MotionMan]

Have you asked them to mutually agree to cancel the contract and return the deposit?

Also:

How much was the deposit? How long ago was it paid? How did you pay it?

MotionMan

 

[KarenMarie]

Make sure you document everything that has occured. Write down all the times you tried to contact them and what the results were. Include all the conversations you had with them, too.

You might just have to eat the deposit here, but if you are really sure you don't want to take the chance, it might be the price you will have to pay for not doing more checking before signing on the dotted line.

 

[bsobel]

but thats just the thing: how can the double booking be an issue at all unless there is a written clause that says they will not book more than one event per day?

Based on the post, they hired specific people to do the work. If they book say two weedings, one at 8am and one at 6pm and this person doesn't like that, your right tough. But if they are clearly booking multiple events within a small window were it is not likely they have an expectation of being able to complete the contract, the judge will see right to the issue.

Thats why I mentioned showing documentation that the dates/times were the same or very similar.

 

[PokerGuy]

An oral agreement is just as valid as a written one, but it's tougher to document. If you orally agreed to one thing, then signed a contract that said another, the written agreement is going to carry more weight.

Still, small claims court was made exactly for these kinds of situations. Document when you spoke to them, what the conversation was about (be specific, concise, avoid irrelevant details). Then document the double bookings (try to get written statements from the other folks that are booked on the same date / time etc.

If the photos shown to you were those made by some other photographer, you can *definitely* use that as a reason to void the contract, since your agreement is based on fraudulent information.

My guess is if you document things well and write up a clear short summary of the reasons for voiding the contract, a small claims court judge will likely allow you to void the contract and get your deposit back. Either way, you have nothing to lose (other than the small claims court fees, which are usually minimal.

 

[FrustratedBride]

Hello everyone! Thanks for your input. I'll try to answer any questions to clarify anything.

Originally posted by: Corporate Thug

one of the questions we asked was that if they book more than one wedding a day, and XY said No.

is this in writing?

To be absolutely honest, it seems that all the stuff about their past practices is fairly irrelevant to your case unless you are planning to bring those people in court with you...

When we interviewed XY, we had a 5-page Wedding Photographer Questionnaire, a list of things to ask the photographer about their business. One of the questions was that if they book more than one wedding a day, and XY said No, which we wrote down. It's not stated in the contract, but we have it written during the interview process. Another question was that if XY would be doing our photography, and they said Yes (also written down).

I didn't think other people's experiences would be valid in court. But I can try to get statements if that would help. I'm in the process of obtaining the other girl's contract to show that they double-booked our date.

Originally posted by: bsobel
As far as passing off other photos as your own, they didn't do that to you, so I would not persue that avenue. You're only going to have a few minutes in front of a small claims judge. You want your story to be brief and understandable. Claiming other wrong (but legally irrelevant) issues will waste your time and just confuse the issue.

Bill

I didn't know you had a few minutes for explanation in Small Claims Court. Thanks for the info! My Fiance said (edit: after looking at the pictures from the originating photographer's website, he's positive that at least 2 of the pictures belonged to a different photographer than XY's)

Originally posted by: MotionMan
Have you asked them to mutually agree to cancel the contract and return the deposit?

Also:

How much was the deposit? How long ago was it paid? How did you pay it?

MotionMan

We've tried, but they said that double-booking and questioning the validity/credibility of their work were not grounds for a contract cancellation. Also in the contract, they said they have the right to demand the entire fee if we didn't need their services and there was not a good reason. We gave a 50% deposit, to save that wedding date, and paid it a few months ago, as a check.

Originally posted by: KarenMarie
Make sure you document everything that has occured. Write down all the times you tried to contact them and what the results were. Include all the conversations you had with them, too.

You might just have to eat the deposit here, but if you are really sure you don't want to take the chance, it might be the price you will have to pay for not doing more checking before signing on the dotted line.

Everything's been pretty well-documented. I honestly doubt they'd pay back the deposit, even if we did win in Small Claims.

Originally posted by: bsobel

but thats just the thing: how can the double booking be an issue at all unless there is a written clause that says they will not book more than one event per day?

Based on the post, they hired specific people to do the work. If they book say two weedings, one at 8am and one at 6pm and this person doesn't like that, your right tough. But if they are clearly booking multiple events within a small window were it is not likely they have an expectation of being able to complete the contract, the judge will see right to the issue.

Thats why I mentioned showing documentation that the dates/times were the same or very similar.

We asked them if they do more than one wedding a day, and they said No (written down on our interview sheet). They said we would have them for the entire day.

Originally posted by: PokerGuy
An oral agreement is just as valid as a written one, but it's tougher to document. If you orally agreed to one thing, then signed a contract that said another, the written agreement is going to carry more weight.

Still, small claims court was made exactly for these kinds of situations. Document when you spoke to them, what the conversation was about (be specific, concise, avoid irrelevant details). Then document the double bookings (try to get written statements from the other folks that are booked on the same date / time etc.

If the photos shown to you were those made by some other photographer, you can *definitely* use that as a reason to void the contract, since your agreement is based on fraudulent information.

My guess is if you document things well and write up a clear short summary of the reasons for voiding the contract, a small claims court judge will likely allow you to void the contract and get your deposit back. Either way, you have nothing to lose (other than the small claims court fees, which are usually minimal.

That is some good news. Just because we agreed with one thing orally, and if it differs slightly or not covered in the contract, it seems that we have a good chance in Small Claims.

Thanks again everyone!

 

[Vic]

Just find another photographer, then cancel with XY and tell them you want your deposit back. The only reason you'd have to sue them to get it back would be if they are completely unethical and totally don't give a damn about word-of-mouth/repeat business. I admit that's a possibility however. However, before suing if that becomes necessary, I would recommend complaints to the BBB and state AG. Your primary reason for cancelling IMO should be that you paid for the professionals you interviewed, not their assistants.

 

[FrustratedBride]

Originally posted by: Vic
Just find another photographer, then cancel with XY and tell them you want your deposit back. The only reason you'd have to sue them to get it back would be if they are completely unethical and totally don't give a damn about word-of-mouth/repeat business. I admit that's a possibility however. However, before suing if that becomes necessary, I would recommend complaints to the BBB and state AG. Your primary reason for cancelling IMO should be that you paid for the professionals you interviewed, not their assistants.

We're already looking for other photographers. XY would cancel with us, but will not give us our deposit back. They might be completely unethical and not give a damn about word-of-mouth/repeat business. We've complained to the IC3, but will probably do the BBB next.

Actually, after looking through the picture again, my fiance distinctly remembers two of the photographs that were seen on other photographers' websites.

So are there any other actions that we can take? Thanks again.

 

[Lola]

i didnt see it anywhere... how did you pay them? cash? CC?

i would say that you could try and take them to court... make sure you emphasize that you cannot go back and redo a wedding if the photos turn out crappy.
also, I dont mean to pry, but how much is the deposite anyways?
i ask because the photog was the most important vendor to me. I wanted the best and i am sure you feel the same. If worse come to worse, it might be in your best interest to forgot the $$ and get a better company.

 

[cyclistca]

This is not going to help you but this would be a good example of why one should always get references and speak to them when hiring a professional.

 

[daveshel]

That transaction should fall under the Uniform Commercial Code provision that covers buyers when they have reason to believe a seller may be unable to perform. You ask for written assurances that they will be able to perform. This gives them notice of your apprehension and documents things in case there is a suit later. (The UCC is applies to contracts for the sale of goods, not services, but since the finished photographs are tangible goods it should apply here.)

 

[spidey07]

"In our contract, XY stated that we can void the contract "with good reason"."

If that is truly in the contract then that is your out. You have "good reason". If these reasons are not specifically stated then you have a wide open out.

 

[maziwanka]

it seems like misrepresentation. to tell you the truth, it's your wedding. hire another photographer and see about going to small claims court to get your deposit back.

 

[RKS]

Originally posted by: daveshel
That transaction should fall under the Uniform Commercial Code provision that covers buyers when they have reason to believe a seller may be unable to perform. You ask for written assurances that they will be able to perform. This gives them notice of your apprehension and documents things in case there is a suit later. (The UCC is applies to contracts for the sale of goods, not services, but since the finished photographs are tangible goods it should apply here.)

yup, OP should ask for adequate assurances that the contract will be followed through or they can take steps to protect themselves.

BTW if the contract is for over $500 (I know that our photographer was about 7 years ago) it should be in writing.

 

[daveshel]

But the bottom line is, you can't sue for a breach that hasn't happened yet.

 

[flot]

Originally posted by: daveshel
But the bottom line is, you can't sue for a breach that hasn't happened yet.

I was thinking the same thing. You don't KNOW that anything bad was going to happen. Instead you are just ASSUMING that something bad will happen. For all you know, both X and Y will show up at your wedding and send their assistants to the other wedding.

How much was the deposit?!

 

[Vic]

Originally posted by: spidey07
"In our contract, XY stated that we can void the contract "with good reason"."

If that is truly in the contract then that is your out. You have "good reason". If these reasons are not specifically stated then you have a wide open out.

I agree. Actually, I'm quite surprised that XY is withholding the deposit despite the fact that no services were ever rendered. That type of unethical business behavior alone IMO is reason enough not to do business with them.

 

[DigDug]

But the bottom line is, you can't sue for a breach that hasn't happened yet.

Right. And is precisely the nature of the situation at hand, namely the providing of photographs as a result of a photgraphic event not yet occuring, that would see a court viewing the transaction as one for services and not goods. The breach by anticipatory repudiation defense you mentioned above isn't tenable. Unlike a manufacturer whose production capacity may yield evidence of a failed delivery, there is NOTHING, from a legal perspective, other than speculation about their unreliability that you are relying on here.

What I would do is approach them and see if they are willing engage in a mutual rescision. This is the best thing that can happen.

In our contract, XY stated that we can void the contract "with good reason

This is amateurish drafting on their part - they clearly did not retain an attorney for drafting of that contract. "With good reason" means absolutely nothing and you can certainly argue in court that what you've learned about their past behavior -- print out every single thread from the Bridal Forums -- constitutes good reason.

Frankly, I'd take those print-outs and show them. Tell them that this is what a court would see, should they refuse to return the deposit upon your decision to void the contract. Ask them wether they can afford any more bad publicity.

 

[FrustratedBride]

Originally posted by: LolaWiz
i didnt see it anywhere... how did you pay them? cash? CC?

i would say that you could try and take them to court... make sure you emphasize that you cannot go back and redo a wedding if the photos turn out crappy.
also, I dont mean to pry, but how much is the deposite anyways?
i ask because the photog was the most important vendor to me. I wanted the best and i am sure you feel the same. If worse come to worse, it might be in your best interest to forgot the $$ and get a better company.

We paid with a Check, less than $500. I don't want to give the exact amount of the Deposit, just for anonymity's sake.

We're already looking for another photographer, but it doesn't sit well knowing that someone else has our money for no good reason

Originally posted by: cyclistca
This is not going to help you but this would be a good example of why one should always get references and speak to them when hiring a professional.

We heard from at least 5-10 people. There's no way we would have hired someone without hearing from other people's experiences (whom said their pictures came out well). Also, the interview process went well. But all of a sudden, this stuff happened...

Originally posted by: spidey07
"In our contract, XY stated that we can void the contract "with good reason"."

If that is truly in the contract then that is your out. You have "good reason". If these reasons are not specifically stated then you have a wide open out.

Sorry, after looking at the contract, there was no "good reason" clause for out. If we canceled their services (and still have the Wedding), they want full payment.

Originally posted by: flot

Originally posted by: daveshel
But the bottom line is, you can't sue for a breach that hasn't happened yet.

I was thinking the same thing. You don't KNOW that anything bad was going to happen. Instead you are just ASSUMING that something bad will happen. For all you know, both X and Y will show up at your wedding and send their assistants to the other wedding.

How much was the deposit?!

We're not suing (going to Small Claims) because we feel that something bad's going to happen on our Wedding Day. We want out because they double-booked us (when we recorded that they don't book more than 1 wedding a day, which means they lied to us), and misrepresented their work (showing another photographer's photos as their own to us).

The Deposit is less than $500, in the form of a Check (50%). I don't want to give the exact amount of the Deposit, just for anonymity's sake. I know they read other Bridal Forums (and who knows what other forums) in order to prepare their answers from questions or comments they read.

 

[alrocky]

Did they double book a wedding for the same time of day as your wedding? Do they have other photographers who work for them? If so you could insist that XY shoot yours and their staff shoot the other wedding. If it's just the two of them and they'd be both be unable to shoot both weddings, then that favors you in a court case.

They can lie in court. Saying to the SC judge that they double booked you and showed other photographer's work as their own is a case if FB said, XY said. Ask that photographer sign an affidavit or to testify on your behalf. Do you have a copy of the double booking?

It's unclear to me: does the written contract state under what grounds and terms you may cancel their contract? What exactly does the contract state regarding the balance due upon cancellation?

About how many months until your wedding? The sooner you cancel and the further away the time of the wedding the more likely you won't be liable for the full balance. There is a legal principle that one person should not be unjustly rewarded for work not done. If you cancel months in advance of the wedding date, XY has plently of time to book another wedding for that date and thus he is not "damaged" by your cancelllation and should not be compensated by retaining the full balance. Thus that wording (as I understand your post) in the contract is not enforceable.

Good luck! Hope you have a great wedding and hope you post great photos from a real photographer!

 

[FrustratedBride]

Originally posted by: alrocky
Did they double book a wedding for the same time of day as your wedding? Do they have other photographers who work for them? If so you could insist that XY shoot yours and their staff shoot the other wedding. If it's just the two of them and they'd be both be unable to shoot both weddings, then that favors you in a court case.

They can lie in court. Saying to the SC judge that they double booked you and showed other photographer's work as their own is a case if FB said, XY said. Ask that photographer sign an affidavit or to testify on your behalf. Do you have a copy of the double booking?

It's unclear to me: does the written contract state under what grounds and terms you may cancel their contract? What exactly does the contract state regarding the balance due upon cancellation?

About how many months until your wedding? The sooner you cancel and the further away the time of the wedding the more likely you won't be liable for the full balance. There is a legal principle that one person should not be unjustly rewarded for work not done. If you cancel months in advance of the wedding date, XY has plently of time to book another wedding for that date and thus he is not "damaged" by your cancelllation and should not be compensated by retaining the full balance. Thus that wording (as I understand your post) in the contract is not enforceable.

Good luck! Hope you have a great wedding and hope you post great photos from a real photographer!

Well, technically it wouldn't matter if they booked the same time or not; what matters is that they booked the same day, when they had told us that they do not book more than one Wedding a day. We recorded that question and answer in our Questionnaire.
We're working on obtaining the other contract that has them booked on the same day as ours.
In the contract, it states that if there is a Cancellation of the photography, they can demand full payment (the other 50% of the Deposit). I don't know if they'll follow being 'unjustly rewarded for work not done', but in the contract, they can.

 

[crystal]

Are you saying you expect them to be at your peck and call at 0:01 am in the morning till 12:00 pm on your wedding day? As other mention, if "xy" will be there and some else that work with/for them will cover the other wedding, then what's the problem.

You know what I think. I think you got buyer remorse. After you sign the contract and investigate the "xy" some more, you have doubt about their abilities & commitment. shrug.