Cashed rubber checks - now I want my money!

July 28, 2006 8:18 PM

I'm a newbie freelancer. Two of my clients, owing me money for services, wrote me checks that bounced.

Details:

I'm a web developer. My services were graphic design, initial administration, and HTML coding for each client. Neither client has been notified yet, as I just found out this afternoon about the returned payment. My bank charged me nothing and I do not have a cash crunch at the moment - I won't bounce anything I write myself. I just need my money!

I've never handled anything like this before so I'll lay out each situation and then indicate my current plan of action. If there's something I'm doing that's very wrong or insensible, or if there's a better way of doing what I aim to accomplish, that's why I'm here. Suggest away.

One client has a site that is completed and active, under her own hosting account (not on my own hosting server). The fee for the entire job was lost on the bounced check. The check was written off her and her husband's joint personal account (not that it matters). Probably is just a big mistake. This is a very personable and gracious client who seemed to be enthusiastic to pay. (Sent the check enclosed in a sweet and detailed thank-you note) She just finished a successful career project and her husband works in a well-paid profession. I was sloppy with the business side of things, unfortunately, and I operated under written email agreement. No official contract was written specifying action or penalties in a situation like this. Legally, I believe she owes the money and I would feel confident approaching small claims court if it came to that. I hope not, as she's a friend of a friend. Widespread awkwardness (with effusive apologies in my direction) would ensue.

The other client has a new business starting up soon. She paid her 50% up-front non-refundable deposit (specified by contract) with a business account check. BOINNG! If I had to walk away now, the contract guarantees me the deposit. Work has just begun on her website, so there's virtually nothing lost. The contract does not specify bounced-check fees or procedure, though. I believe this is just a financial hiccup, but I'm more wary of payment failure for this one - it's a sign of deep cash flow issues (her store ain't even open yet). She's also a friend of a friend, again making things awkward among multiple parties.

I kinda know what I have to do. Notify them politely that their checks bounced, ask for the money again, and explore legal options if payment cannot be made immediately. I believe I'm not entitled to additional fees or new payment terms legally, but I feel a bit jilted and inconvienienced. I'm deep in the red and recieving partial unemployment payments during my downtime, so I'm not taking this well. I plan to ask for the following:

Client one: firmly demand full payment immediately in cash. I can't take the site down effectively (I could delete the files from the host, but I'm sure the host would restore them for the client from backups if I did such a nasty thing) so I don't have that bargaining chip. If I asked for inconvience fees or interest, she probably would agree to pay them since she's already offered - all kinds of project deadlines were blown on her part. It does not hurt my chances of getting paid in full for the job, since she either has the money or she doesn't (and in the latter case, time to find a cheap lawyer).

Client two: Will not ask for inconvenience fees because I suffered no actual loss and I have half my fee left to earn if I patch things up nicely. To keep the project active I want to insist on the following revision of payment terms (none of this is in the original contract): $300 in cash due immediately for the deposit, and $300 deposited in an escrow account for the future project completion payment. She must pay any escrow fees. Harsh, but probably necessary.

Again, if I'm doing something wrong or if something could be done better, let me know. To reiterate, each client agreed in writing (via email or by contract) to pay the amounts in the bounced checks. I think it's all a terrible coincidence and I will get my money if I ask nicely, but I'm also confident that I can still get paid if I have to ask not-nicely.

posted by brianvan to work & money (27 comments total)

Your plan of attack sounds sensible. I'm sure it was merely bad coincidence this even happened. Just be polite, as they will likely (and should be) tripping over themselves trying to make it right with you.
posted by rinkjustice at 8:29 PM on July 28, 2006

Fellow web developer here, also a freelancer (well, setup as an LLC, but that does not matter for my reply).

Anything over $500, by law, is required to be in writing to be valid. This is from a law book and law professor.

Email counts, as long as you can prove it is standard for your line of business, which you can easily argue as a web developer.

So, you are entitled to the money in both cases, hands down.

With client 1: ouch. I either host my clients on my server (so I have the ability to pull the plug if they fail to pay and fail to make good after a second request for payment) or I have 100% of control of their hosting with their provider, so that I can essentially do the same thing. In your case, it sounds like it was a mistake on their part and they will pay you. I think requesting cash, as long as it is not an outrageous sum, is acceptable. I would not charge them any inconvenience fee, unless you were charged by your bank (I do not think you were though). If you do not want any future business from them, then you are free to try to charge them for the problem this time.

With client 2: I have had the exact same issue, sort of (defeats the phrase "exact same", lol). I had a startup waiting for their VC money. They agreed to pay when they got it. I did a lot for them and went for nearly a year without payment. Eventually they paid and we are on better terms now, but I still do not devote as much of my resources to their sites as I do to the ones that pay immediately.

So, if you are ever faced with a client you think may not pay, just do not devote your resources to them as much as to those who do pay on time every time. Sure, you may end up losing them, but if they were possibly going to stiff you, then what have you really lost other than a potential headache down the line?

Good luck!
posted by criticman at 8:35 PM on July 28, 2006

You're kind of lucky this happened to you this early in your career, you need to build up your billing and collecting muscles to run your own business.

Here's how Danny DeVito's character handled a similir situation in the movie "Casino"

You know... I think that you've gotten
the wrong impression about me. I
think in all fairness, I should
explain to you what it is that I do.
For instance, tomorrow morning I'll
get up nice and early, take a walk
down over to the bank and walk in
and see you, and, uh... if you don't
have my money for me, I'll crack
your fuckin' head wide open in front
of everybody in the the bank. And
just about the time that I'm comin'
out of jail, hopefully, you'll be
comin' out of your coma. And guess
what? I'll split your fuckin' head
open again. Because I'm fuckin'
stupid. I don't give a fuck about
jail. That's my business. That's
what I do. And we know what you do,
don't we, Charlie? You fuck people
out of money and get away with it.
posted by kaytrem at 8:38 PM on July 28, 2006

Nice answers so far. (Quick too!)

For reference, since numbers count: Client one's whole fee was $500. Client two's 50% deposit was $300; my plan will force her to come up with $600 cash altogether.

(Yes, I know I'm charging too little for boutique design in NYC. No, it's not quite paying the rent yet. My humility exceeds my financial acumen.)

Oh, and kaytrem, you're probably thinking of Joe Pesci. I'm of Italian heritage, so in discussing this with associates I've already beat the leg-breaking angle to death. All in good fun, of course.

Pop-culture coincidence: given the sums involved, if it got messy the only lawyer I could probably afford would have to be someone like "My Cousin Vinny", another Joe Pesci gem.
posted by brianvan at 8:55 PM on July 28, 2006

That was helpful, kaytrem. Thanks for sharing.

It's a small world brianvan. Sometimes it's word-of-mouth and your reputation that makes or breaks a business; and it sounds to me like you plan to handle this fairly. rinkjustice said it, be polite and assume that this is just an amazing coincidence. Treat your clients like you would want to be treated if you had made a financial slip-up. Remain positive and only if things go worse, hire the meanest lawyer your money can buy; but let them do the dirty work and you remain positive and keep smiling to your clients.

Relax, this is part of running your own business. Get an idea of your comfort zone so you can call the shots better in the future.
posted by peeedro at 8:59 PM on July 28, 2006

Yeah, that was the other thing I was going to say...you are charging too little! I did the same when I first started, sold myself short, etc. I felt bad charging, but I am learning after two $15k+ contracts back to back that even basic sites are worth a fair amount.

Once again, good luck!
posted by criticman at 9:12 PM on July 28, 2006

Always fire your least-profitable clients.
posted by five fresh fish at 9:12 PM on July 28, 2006

I gather it's been a few days since the checks have bounced. If the bank did not stamp "Do Not Resubmit" or something similar on the check, a second attempt to cash the checks should be your first step. Usually, the check-writer's bank will stamp the check on the second attempt to cash it. You might also think about calling the bank first and asking to verify funds in the account.

If that doesn't work, try a phone call... leters and emails don't have the personal touch and aren't very effective at all. Breach the subject as if you understand entirely... things happen. Follow that with a "but I'm sure you understand that, as a start-up, I simply can't afford to work for free." Then ask them (assuming they're local) when would be a good time to stop by today and collect the balance. If they're not local, get a commitmenton a reasonable date (4-5 days is reasonable) that you can expect to have cash or a money order in your hand.

You might also consider adding an "and, trust me, I know how hard things can be. With that in mind, if you are in a position to clear this today [or by whatever day], I'll eat the NSF charge the bank charges; otherwise, I won't have any choice but to add that $25 to your balance."

And a couple collections always's...
=> Always leave them a way to save face. You always "understand that..." or you're sure "it was just an oversight, but...". You'll have a lot more success than if you come on strong and paint the client as the low-life in the equation.

=> Always get a firm date. Never end a collection attempt with anything nebulous from the client. Don't fall for "I think I can do it Thursday," or "I should be able to come by Tuesday." In the debtor's mind, that's an escape hatch.

=> If the going gets tough, don't give in to the temptation to threaten or imply things you don't plan on doing. For example, unless you plan on turning the check over to the local prosecutor, don't remind them that it's illegal to write a hot check. Or don't mention the hassle of small claims court unless that actually is your next step.
posted by CodeBaloo at 9:13 PM on July 28, 2006

Next time, when you write a proposal (and you should be writing proposals if you aren't already), include payment at various points in the job (dependent on goals being met by you) as part of the proposal. For very long jobs or involved jobs there might several of these (not just one in the middle and one final payment). This will serve as a defacto contract and also let the other party know that the job will not be completed until most of it is paid for. The point of a proposal is that it sets expectations for your performance and for payment, and lets you ethically state that you cannot continue work until payment is forthcoming, because that what you both agreed to. Some people won't want to do this, drop them like hot rocks.
posted by doctor_negative at 9:18 PM on July 28, 2006

I'd just simply ask them to simply clear up the issue within the day, or within a couple of days. I wouldn't even demand cash yet, although people do tell me that I let people walk all over me. (I like CodeBaloo's idea of offering to not impose any fees if they clear it up by a certain time.)

But especially in an industry where word-of-mouth counts a lot, it can't help to be really polite/friendly at first.

And then make sure future contracts/proposals specifically cover issues like this, and allow for you to impose fees and halt work in the event of non-payment / bounces.

Don't threaten legal action (or anything negative, really) at this stage of the game; you'll just rub people the wrong way.
posted by fogster at 10:23 PM on July 28, 2006

Some small businesses I know of deal with problem clients like this by simply raising their rates by 10% then offering a 10% "discount" if client pays on time.
posted by ldenneau at 10:48 PM on July 28, 2006

I can't take the site down effectively (I could delete the files from the host, but I'm sure the host would restore them for the client from backups if I did such a nasty thing) so I don't have that bargaining chip.

Never delete files from the host. Ever. If something like that gets around, you will not be able to find work. As peeedro said, it is a small world.

Take the high road. Like others have suggested above, work under the assumption that it was an honest mistake. Treat these clients like you would your most valued clients.

If they do turn out to be deadbeat clients, minimize your time investment. Stop work and focus on paying clients.

Don't waste time on deadbeats. You will never get a good return on investment. Why waste hours/days/weeks/years trying to squeeze water out of rocks when there is an entire ocean of clients out there ready to spray you with money?
posted by cup at 10:57 PM on July 28, 2006

Yes, always quote your fee at amount+padding "...and since you're such a great|important|loyal customer, I can offer a [padding] Early Payment Discount off that if the check clears by [date substantially earlier, than makes your cashflow happy]." Everybody loves a good discount, and it's a routine practice among contractors.

A big second for breaking up payments. Never start work without at least 1/4 (generally 1/3 or 1/2) upfront, and never finish work without having at least 3/4 (generally it should be all, unless there's a good reason for an exception) already paid up. This is standard business practice, and anyone who balks at doing it this way is either naive or broke or a deadbeat. Either way, red alert!

Once you deliver the final product, motivation and urgency for paying off the balance diminishes fast as they move on to other stuff. So anything not paid off before delivery should definitely be collected VERY soon thereafter.

Your plan is good. Just make the call right away, and (in the friendliest possible way) give them a very short time to correct the mistake. Because while you may not be hurting for the money today, you will eventually and meanwhile collecting on a small claims court judgement (if you get forced to go that route) takes time.
posted by nakedcodemonkey at 11:10 PM on July 28, 2006

It's not just that you're undercharging. People who can't afford to pay you what you're worth are more likely not to be able to pay you at all. If a potential client says "I don't have much money" you should assume they really don't have any money. In my experience, though, when someone agrees to pay you, say, $10,000, they are quite likely to be able to pay.
posted by kindall at 1:16 AM on July 29, 2006

Anything over $500, by law, is required to be in writing to be valid. This is from a law book and law professor.

If you are talking about the Statute of Frauds as implemented in the Uniform Commercial Code §2-201, then I don't think that applies here, as the contract is still enforceable:

if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement

posted by grouse at 2:53 AM on July 29, 2006

I think you have a good handle on this issue. NSF checks are an unfortunate part of doing business unless you do all your transactions in cash or certified funds.

Although your clients seem to be willing to make good on their checks, you will want to consider a policy of only accepting certified funds (money order/cert. bank check) from clients who have bounced a check. Also, consider making up a stock contract to be signed by your customers. Include these key points:

--Your terms with any applicable discounts; in my industry, 1%-10 net 30 is standard but I don't work in technology.

--Your NSF policy, including penalties. $25 fee for bounced checks is standard but see what your bank would actually charge.

--That you own the work until paid in full. Check with a local lawyer on that one - some states have particular phrasing for this.

You may be freelancing but you'll look more professional using standard business practices like written contracts & will be taken more seriously.

In the worst case scenario (one of them doesn't make their check good), you're probably SOL for customer #1 in regards to most states' bad check laws. NSF checks written for existing debts usually aren't eligible. For customer #2, you might still have a case but look for your state's particular laws.

If you ever have a case of a customer bouncing a deposit check again, do yourself a favor and notify them (in writing & use registered, certified mail) within 10-30 days (it varies by state) just to CYA.
--
posted by jaimystery at 5:37 AM on July 29, 2006

In most places, writing NSF checks is against the law.
If they won't pay immediately, call your local law enforcement authorities.

You could sell the NSF checks to a collection agency. You'll probably only get a partial payment, but you would probably get something.

My friends wife works for an agency like this and she says they collect more NSF money than just the regular "your bill is late" money.
The reason they collect more is that the bad check is a violation of law, and late bills are not. They just tell people: "You can talk to us, or the Sheriff." It's usually enough to get them paying.
posted by whoda at 6:02 AM on July 29, 2006

Anything over $500, by law, is required to be in writing to be valid. This is from a law book and law professor.

About the $500 must be in writing thing. Most likely it's not going to need to be required. This requirment only applies to goods, and this will most likely be seen as a service contract. Not that it matters in this case but just for general knowledge.
posted by JakeLL at 7:47 AM on July 29, 2006 [1 favorite]

whoda: the offense is commonly called "uttering a worthless instrument", and prosecuting it requires proving mens rea, as far as I understand.

Lots of people bounce checks; not all of those bounced checks are crimes.
posted by baylink at 9:03 AM on July 29, 2006

From your description, the bounced checks are most likely simple errors on the part of the clients. The first step is direct personal contact (in person or by phone), explain honestly what has happened. My expectation would be that they would immediately apologize and ask about how they can rectify this, and they would appreciate the open, non-confrontational personal way you've approached them about this. An email followup that summarises your conversation and resolution (and thanks them for their assistance in resolving this) would be a good step, and good documentation.

In the second case, it's your call whether to proceed. I would hope that the client would assume that you won't be going ahead until the deposit has been properly paid.

In my off and on freelance career, I had only one client that was slow paying. I just brought it up monthly, using all the contacts I had, and they eventually made good.
posted by Artful Codger at 9:39 AM on July 29, 2006

When I used to do freelance web development, I had one particular client who was consistently late with her payments. After several months of waiting, I put a little snippet of code in the header of her website that fired a pop-up everytime she visited her site (based on her IP). The pop-up said, "Please pay your hosting bill." Simple and effective.
posted by bjork24 at 12:40 PM on July 29, 2006 [1 favorite]

peeedro you are welcome. As I think you must know a sense of humor is required in business. Good to see yours is intact.
posted by kaytrem at 5:58 PM on July 29, 2006

Don't freak out and overreact. One thing you need to do is remember that these are individual incidents, and it is just a coincidence that they happened at the same time. Client 1 has nothing to do with Client 2.

If the bank either check is drawn upon has a branch near you, take the bounced check in there in person and ask if it is good yet. If it is, get the cash. If it isn't, go back to each client and let them know what happened. At this point you don't need to take their sites down or threaten anything or give a deadline. Hopefully they'll be embarassed and fix you up right away. If they don't, you'll need to get tougher with them. But first give them a chance to own up to the mistake and make it good. You'll know by their responses if it is going to get ugly, just don't make it ugly before you have to.

My prediction: #1 will make things right very quickly, #2 will jerk you around a bit. Keep them on a short leash.
posted by spilon at 7:31 PM on July 29, 2006

Not only was kaytrem's post not helpful, but he doesn't know the difference between Danny DeVito and Joe Pesci.
posted by AmbroseChapel at 4:25 AM on July 30, 2006

LOL
...ok, but:

(A) Didn't Joe Pesci play Tommy DeVito in Goodfellas??? There's a connection...

(B) Both films portray a world where 'collections' has been elevated to an art form
posted by kaytrem at 7:23 AM on July 30, 2006

Hah, derailed by Joe Pesci.

Update: after asking each client nicely, both moved quickly and paid up in cash. Client #1 took a few days to contact and didn't stick to her original plan to mail a certified check ASAP, but made up for it by sending her husband on an errand with the money soon afterward. Client #2 responded immediately by meeting me the next day with the entire design commission for the site, not just the original deposit. And not only are we moving forward on the website, but we just collaborated yesterday on my very first fashion shoot as a digital still photographer. (Which I'll also get paid for.)

I can't stress enough how important it is, in the end, to get EVERYTHING in writing, including your rates, late payment fees, due dates, bounced check procedures, liability releases, etc. These are corners that, as a freelancer, you can't afford to cut.

Thanks everyone!
posted by brianvan at 8:24 AM on August 5, 2006

Just for the record here, there's a lot of quasi-legal advice that's incomplete, inapplicable or just plain wrong.

That's fair - I suck at web design; I don't expect non-lawyers to be Louis Brandeis. But anyone who's really trying to make a go at freelancing as a busienss needs to take some basic steps to educate oneself about the basic business law of the state (or states - even worse!) one does business in. Take a trip to the library where the books are free; if you really plan on making a living at it then an investment in consulting a business lawyer for some basic advice on deadbeat avoidance will pay itself back many times over.

Good luck to everyone!
posted by mikewas at 6:24 PM on September 12, 2006