A contractor took $23K and didn’t do the work, homeowner alleges. Here’s how he fought back. (2023)

Last spring, Andrew Corwin decided it was time to rehab his backyard pool and patio.

His long-time pool service contractor wasn’t working during COVID, but he recommended a different contractor.

“He said this guy did good work,” Corwin said.

Corwin met the contractor for the first time in April and he signed a contract detailing the specs of the project. He said he wrote a $23,000 deposit check for the more than $44,000 job.

But in the weeks that followed, the contractor kept changing the start date, Corwin said. By the end of May, the contractor backed out of the job, Corwin said and text messages show. The contractor promised multiple times to refund the deposit, but the money never came, Corwin said.

Corwin filed a police report in August, but he said police suggested it should be a civil matter. But the homeowner didn’t want to get involved with a civil case, which he said would take time and cost more money.

“He took the money and ran with it,” Corwin alleged of the contractor, who according to the Division of Consumer Affairs does not have a Home Improvement Contractor registration with New Jersey, a violation of state law.

While there have been successful criminal prosecutions against some contractors, such as those who swindled multiple victims after Superstorm Sandy, there are not a lot of prosecutions when there is only a single complaint. That leaves homeowners with little recourse.

It’s all about how “intent” is written into N.J.S.A. 2C:20-4, the statute that covers “theft by deception,” prosecutors and legal experts said.

“If you and I engage in a deal with me delivering a horse to you, and you give me $5,000 to deliver the horse, the fact that I don’t deliver the horse isn’t enough for theft by deception but it would be enough for breach of contract — unless someone can prove that at the time I took the money, I had no plan to deliver the horse,” said Walter Dirkin, assistant prosecutor in the financial crimes unit of the Essex County Prosecutor’s Office. “

A contractor took $23K and didn’t do the work, homeowner alleges. Here’s how he fought back. (1)

UNDERSTANDING THEFT BY DECEPTION

The law says a person is guilty of theft by deception if he “purposely obtains property of another by deception.”

That includes creating a false impression or making a promise with no intention of following through. It specifically says that not following through on the promise alone is not enough to merit a charge, but instead, it’s based on the person’s intent at the time they take the money.

“With theft by deception, the theft occurs if at the time you accept the money... the mental state to take the money and do nothing has to exist at that moment,” Dirkin said. “The statute itself says failure to perform on a promise isn’t enough.”

While a contractor’s intent might seem obvious to consumers after-the-fact, proving it is another matter, experts said.

“If a contractor says, ‘I’ll fix your house,’ and they take a deposit and just hit the wind, that’s a pretty good showing of intent,” said former Monmouth County prosecutor Christopher Gramiccioni.

But because it’s hard to read someone’s mind, prosecutors need more evidence to prove intent, such as seeing if the contractor bought supplies for the job or booked several clients in a short time frame with no work or materials to show for it, he added.

Gramiccioni said contractor disputes sometimes happen without intent.

“The contractor may be overwhelmed with work. Prosecutors have to examine that closely,” he said. “They’re not in the business to criminally prosecute unless there’s a criminal element and they intend to deceive or steal and permanently take that property.”

Prosecutors said the law tries not to bring civil contract disputes into the criminal arena.

“There are circumstances where you have people who are victimized by contractors who are poor businesspeople,” Dirkin said, “They may be poor at managing money but not necessarily have criminal intent.”

Ocean County Prosecutor Bradley Billhimer, whose office has handled many Sandy-related contractor cases, agreed that Intent is what makes some theft by deception allegations hard to prove.

“Often times there is a difference of opinion — between the homeowner and contractor — as to what was expected out of the contract and so long as reasonable minds could disagree, it is a civil case,” he said, adding that if a contractor starts and doesn’t finish a job, or does poor work, it’s usually a civil case.

Prosecutors said there have also been cases where an attorney representing a homeowner in a civil case will seek a criminal charge to gain leverage for the civil side, but that’s something most prosecutors avoid.

Billhimer’s office handles cases involving allegations of individual theft or contractor fraud over $75,000, and for cases of a smaller monetary value, it will provide resources to municipal police.

“If there are multiple allegations against a contractor for theft or fraud in different jurisdictions for less than $10,000 to $15,000, we will assist and monitor the various developments in those investigations,” Billhimer said. “If the allegations of theft are larger or involve a repeat offender, we will assist until it is apparent that OCPO needs to run the investigation.”

If the theft by deception charge is hard to prove, what about a charge of just theft?

It’s not that simple, Dirkin said.

“The reason it’s not theft is you willfully gave it to him with the promise that something was going to happen after that,” he said.

Gramiccioni said it’s possible a grand jury could find a theft occurred, but again, it comes down to intent.

“If his intent is to willfully and purposefully take without intending to follow through on performance, a grand jury could find a theft occurred,” he said. “This is an element that a prosecutor would have to prove beyond reasonable doubt, which can be difficult.”

WHAT’S A HOMEOWNER TO DO?

If you can’t get a prosecutor to take your case, there’s little else to do but to file a civil case.

You can head to small claims court for amounts of $3,000 or less.

For amounts up to $15,000, it would be the Special Civil Part, and amounts over $15,000 are heard in the Civil Division of the Superior Court.

While you don’t need an attorney, if the contractor is convicted of violations of the Consumer Fraud Act, the person bringing the case will get treble damages and have attorney’s costs and fees covered.

You can learn more about collecting on the New Jersey Judiciary website.

All the uncertainty is why Corwin wanted to go the criminal route.

Corwin went back to municipal court, where a court administrator helped him with a complaint, and Corwin went before a judge in a Zoom meeting on Oct. 12.

“The judge agreed that it had criminal reason to proceed — as a sort of `take the money and run,’ rather than the more usual civil `inadequate, improper or substandard work,’” Corwin said.

The complaint was sent to the Essex County Prosecutor’s Office, where investigators met with Corwin.

“I indicated to them that I was going after this contractor because, while the money loss is real, the attitude that was expressed by the contractor, that he was essentially untouchable, was the problem,” Corwin said.

Reached by phone, the contractor told NJ Advance Media he was having trouble getting materials and he still planned to do the job, something that Corwin said was news to him. The homeowner said he sent several letters, the most recent on Oct. 18, and the contractor hasn’t responded.

After reviewing the case, the prosecutor’s office said it was charging the contractor with one count of theft by deception. He’s scheduled to be arraigned on Nov. 9, authorities said.

The contractor didn’t respond to subsequent messages left by NJ Advance Media.

Please subscribe now and support the local journalism YOU rely on and trust.

Karin Price Mueller may be reached at KPriceMueller@NJAdvanceMedia.com.

If you purchase a product or register for an account through one of the links on our site, we may receive compensation.

Top Articles
Latest Posts
Article information

Author: Horacio Brakus JD

Last Updated: 01/13/2023

Views: 6689

Rating: 4 / 5 (71 voted)

Reviews: 86% of readers found this page helpful

Author information

Name: Horacio Brakus JD

Birthday: 1999-08-21

Address: Apt. 524 43384 Minnie Prairie, South Edda, MA 62804

Phone: +5931039998219

Job: Sales Strategist

Hobby: Sculling, Kitesurfing, Orienteering, Painting, Computer programming, Creative writing, Scuba diving

Introduction: My name is Horacio Brakus JD, I am a lively, splendid, jolly, vivacious, vast, cheerful, agreeable person who loves writing and wants to share my knowledge and understanding with you.