What if a business lied about being "Incorporated"?

[mitchelt]

I am going to be suing a company that represented themselves as ---- Painting, Inc. (a one man operation)

I just went to the Colorado Secreteray of State web site to see who the registered agent is, and it did not have the company listed. I then called the Secretary of State to verify, and they said the company was not listed.

She recommended that I request a "Fact of no current record" report from them, to take to court.

My question is who do I sue in small claims court, the PERSON (John Doe), or the company ---- Painting, Inc?

I'm pretty sure the person owns a few rental homes/properties in the local area.

Can I use the fact that he lied about being Incorporated to my benefit? It sure seems like he has opened up his personal property to being sued.

 

[T3C]

the person

 

[T3C]

and im not sure on the second question

 

[OutHouse]

what is the lawsuit about?

 

[mitchelt]

He tried to refinish the kitchen cabinets are ruined the frames, and abondoned the drawers and doors on my driveway without telling me. By the way, the doors and drawers look even worse than the frames.

Everything being ruined has been verified by 2 additional contractors, neither of them are trying to sell me new cabinets.

Thanks,

Mitch

 

[JetsFanatic]

Well
I believe you should be made whole and not profit from the situation
So it really would not make a difference

 

[rahvin]

Originally posted by: mitchelt
I am going to be suing a company that represented themselves as ---- Painting, Inc. (a one man operation)

I just went to the Colorado Secreteray of State web site to see who the registered agent is, and it did not have the company listed. I then called the Secretary of State to verify, and they said the company was not listed.

She recommended that I request a "Fact of no current record" report from them, to take to court.

My question is who do I sue in small claims court, the PERSON (John Doe), or the company ---- Painting, Inc?

I'm pretty sure the person owns a few rental homes/properties in the local area.

Can I use the fact that he lied about being Incorporated to my benefit? It sure seems like he has opened up his personal property to being sued.

When you searched the records did you search the Corporation records and the DBA records? If someone is claiming to be a business and isn't, that's one thing if they are filed as a DBA and using the Inc. accronym that is another. It may or may not be illegal in your state to claim corporate standing (C or S corp) by using the Inc. in the name.

Basically what I'm trying to say is make sure the guy has an actual business license and is filed with the state. If he isn't you will have to sue the individual and the court would look very unfavorably on him claiming to be a business and doing business without a license. You could use the lack of a license to do business as a valid claim for punative damages. It would be a mitigating factor that would make his initial breech worse. Punative damages are difficult to get but it never hurts to ask the court for them.

Make sure you check with your city as well to see if he has a valid business license.

 

[mitchelt]

rahvin,

Great advice!!

I will check on the DBA and City status.

DBA Status : The Secretary of State web site let's you look up by the persons name, his last name does not come up, I then called the Sec. of State and they confirmed that is how you search a DBA.

City Status: I just talked to the licensing of his city and they have no record for him.

Also JetsFanatic, I am not trying to make a profit on this, I am trying to right the wrong that was done to me and my family.

thanks,

Mitch

 

[JetsFanatic]

Sorry if you took "a fence" to my comments

I was only stating what I believe.

I do believe you should be made whole.

No hard feelings

 

[arcas]

I'm curious. Did the Sec. of State's office sound interested that this guy is possibly mis-representing his "company" as a corporation? Similarly, did the city's licensing administrator sound interested that this guy might be operating without a license?

If he's indeed misrepresenting himself and is operating without a license, it seems safe to assume also he's operating without liability insurance (surely any reputable insurance company will verify that an individual is licensed to practice a trade before underwriting a liability policy).

 

[mitchelt]

arcas,

To tell you the truth, the City seemed a lot more interested than the Sec. of State did.

Hopefully the judge gets upset.

Mitch

 

[ElFenix]

Originally posted by: mitchelt

Can I use the fact that he lied about being Incorporated to my benefit? It sure seems like he has opened up his personal property to being sued.

since hes not incorporated, yes, his assets are the ones on the line.

 

[NogginBoink]

Yes, it's illegal to represent yourself as a corporation when you're not.

The fact that he's not a corporation answers your first question: sue the individual, because his business has no separate legal identity. As far as the law is concerned, the individual and the company are one and the same. (Unless the buisniess is a de jure partnership, LLC, or LLP... but given the fact that they used inc. inappropriately it's highly unlikely they know what any of those are, either.)

Whether or not the person represented himself as a corporation has no bearing on that person's personal liability. The simple fact that he's not incorporated (no matter how he presented himself) means he's open to personal liability.

However, there is a concept in law known as 'estoppel' that comes into play here. If you dealt with the individual believing that he's a corporation, he can actually enjoy some of the protections of a corporation in some circumstances. (Not in this case, I think.)

Representing himself as a corporation probably opens him up to ciriminal liability, if the state decides to go after him.

Having said all of that: my interpretation comes from one semester of graduate business law and I am in no way shape or form a legal expert, and everything I say here could be absolutely wrong, and if you want good legal advice, seek the counsel of a lawyer instead of a bunch of Internet-geek-teenagers.

 

[rahvin]

Originally posted by: mitchelt
rahvin,

Great advice!!

I will check on the DBA and City status.

DBA Status : The Secretary of State web site let's you look up by the persons name, his last name does not come up, I then called the Sec. of State and they confirmed that is how you search a DBA.

City Status: I just talked to the licensing of his city and they have no record for him.

Also JetsFanatic, I am not trying to make a profit on this, I am trying to right the wrong that was done to me and my family.

thanks,

Mitch

Report him to the city for operating a business without a license. Report him to the state for doing business under a non-registered name. Report him to the county for failure to pay business taxes. Report him to the state for failure to pay sale/use tax. Report him to the IRS for failure to pay taxes. Sue for the damages and ask for triple punative damages. I don't know if you are over the small claims limit but if you are sue everyone involved and ask for the punative damages and lawyer fees.

 

[rahvin]

Originally posted by: NogginBoink
Yes, it's illegal to represent yourself as a corporation when you're not.

A lot of people make statements like this on the forum and I always have the same response.

It depends on the state.

Unless of course you claim to know all states laws. I don't know all states laws so I phrase my response to indicate that the law should be checked for your local jurisdiction because all these laws vary from state to state and there could be a state out there where it isn't illegal to put Inc. in the name and not be a registered corp.

 

[mitchelt]

Thank you everyone for the GREAT advice, yes I am also working with a lawyer, I just wanted to know your opinion.

rahvin - Yes, in the state of Colorado a corporation who wants to do business in Colorado, must have a registered agent to receive legal papers.

 

[rahvin]

Originally posted by: mitchelt
Thank you everyone for the GREAT advice, yes I am also working with a lawyer, I just wanted to know your opinion.

rahvin - Yes, in the state of Colorado a corporation who wants to do business in Colorado, must have a registered agent to receive legal papers.

Anyone wishing to do business in any state must register with that state an agent to recieve legal documents. My previous post was about the different kinds of businesses there are and what names they can use. There are C and S corporations, limited liability companys and sole proprieterships. The abreviation Inc. would indicate incorporation in the form of an S or C corp, LLC. or LL as part of a name indicates a limited liability company. Use of these acronyms may or may not be indicative of wether the company actually is an entity as specified. In Utah if you are an LLC you must use that LLC as part of your name and it must be present on all business papers. On the other hand I know of no restrictions or requirements to use an Inc. abbreviation either for companies that are or are not incorporated. Without more investigation I do not believe it is illegal in Utah to use Inc. as part of your business name if you are a sole proprietership. This was the essence of my comment and it no way impacted your situation. The guy is obviously operating an unlicensed business and you should sue his pants off.

 

[mitchelt]

rahvin,

Thanks!

In Colorado the max small claims amount is $7500, that should be enough to cover the cost of new cabinets, install, touch of the faux finsih he messed on the wall, court costs and some misc. stuff.

I think it is safe to "assume" that he is not an Incorporated company, if it turns out to be a sole proprietership, that's bad news for him seeing that he will not be able to "hide" behind the laws and benefits that come with becoming a real company, so his personal assets are now vulnerable.

That's why I hired a lawyer to do all the paperwork required for my company to be 100% legit, money well spent if it saves me from losing my house and personal property.

Mitch