I signed a contract to replace my old shower back on Feb. 17 and was told that due to work load Re-Bath will not be abe

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Customer: I signed a contract to replace my old shower back on Feb. 17 and was told that due to work load Re-Bath will not be abe to start work for 8 to 10 weeks. Due to covid-19,they advised me that the installation of the new shower is now in limbo and they will advise of new installation date. I gave then a $1000. deposit back in February. How can I cancel it and get a refund now that I decided to just move to a new house?
JA: What state is this in? And just to clarify, when was the purchase made?
Customer: California
JA: Have you contacted the seller or manufacturer?
Customer: Feb. 17, 2020
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I also paid a 1st installment payment of $601. with EnerBank for a " same as cash loan" Can I also get this back?
Answered by Eric Vander Arend in 2 mins 2 years ago
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Eric Vander Arend
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Eric Vander Arend
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Eric Vander Arend
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Eric Vander Arend, Expert

Hello: My name is***** I have been a licensed and practicing attorney for almost 30 years, I have a 100% customer satisfaction rate on JustAnswer ("JA"), and I would like to work on answering your question today. If that's OK, I'll take a few more moments to look at it more closely. When I come back, I may have some questions of my own. I do that to make sure you get an accurate answer.

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Eric Vander Arend, Expert

You probably signed a contract for the construction work. Do you still have it and is it in digital form? Contracts are generally the first place I look in this instance regarding your rights.

Customer
I have the copy of the contract in my hand and it is not in digital form.
Customer
Can't afford spending more money just to find out if I can recover my deposit money.
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Eric Vander Arend, Expert

You got a pop-up asking whether you want to upgrade to Premium Service. I don't control that, and we can stay in Q&A chat.

OK. I just did a search and found that Enerbank USA is a finance company which provides loans for home improvement, and works with contractors who are selling home improvement services.

I imagine you also have a loan agreement with Enerbank. Do you have that and is that in digital form?

Customer
I have a loan agreement with EnerBank. I have copies of it in paper.
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Eric Vander Arend, Expert

Do either the contractor or loan agreements have cancellation provisions?

Customer
I looked over the EnerBak documents and did not find it. As for re_bath it says that if client cancels after 3 days of signing contract I forfeit the deposits left or monies paid for contract.
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Eric Vander Arend, Expert

OK. Let me check on a few things.

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Eric Vander Arend, Expert

One more question. Does the EnerBank loan allow payment in full prior to the end of the term, or do they charge a fee or penalty for early repayment?

Customer
EnerBank allow payment in full prior to the end of the term w/o penalty.
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Eric Vander Arend, Expert

Just curious. What's the amount and term of the loan?

Customer
The loan is for $10,820.00 ( 18 monts loan). The first loan advance is $5,410. and second loan is $5,410. I paid $601. towards the first loan.
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Eric Vander Arend, Expert

Has the contractor received the first loan advance?

When is the 2d advance scheduled to be made, if at all?

Customer
According to EnerBank they gave the contractor the full first loan amount so the contractor can buy the materisl need. However, back in March that's when I got a call from Re-Bath telling me that they cannot schedule the work within the 8 to 10 weeks ( as they indicated back in Feb.) due to the covid-19. I spoke to them again and they cannot still tell me definitely the time frame. They just said they still buying the materials need. Granted it's not their fault ad think I waited enough and it's not my fault either.
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Eric Vander Arend, Expert

I have located a California Code Section that may be helpful to you, although generally you would relegated to the 3-day rescission rule, or 7-days in the case of a home repair contract entered into as a result of damages caused by a disaster. I'm going to link to the Code Section with comments in my next post.

Customer
Mr. Arend, I have to put our chat on hold for at least 10 mins. to pick my dogs up from the groomer. Be right back.
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Eric Vander Arend, Expert

OK. I'll write up on the Code while you're gone.

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Eric Vander Arend, Expert

This is a link to the applicable Code Section -- https://law.onecle.com/california/civil/1689.html

I have cut and pasted from it the following which describe instances in which you may be able to rescind the contract.

CA Civ Code § 1689 (2017)

(a) A contract may be rescinded if all the parties thereto consent.

(b) A party to a contract may rescind the contract in the following cases:

(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.

(2) If the consideration for the obligation of the rescinding party fails, in whole or in part, through the fault of the party as to whom he rescinds.

(3) If the consideration for the obligation of the rescinding party becomes entirely void from any cause.

(4) If the consideration for the obligation of the rescinding party, before it is rendered to him, fails in a material respect from any cause.

(5) If the contract is unlawful for causes which do not appear in its terms or conditions, and the parties are not equally at fault.

(6) If the public interest will be prejudiced by permitting the contract to stand.

(b)(1) as your consent was based on specific expectations of scheduling the construction. While Covid has interfered with business operations, construction has generally continued as an essential service. Your contractor should have been, and should still be able to give you accurate scheduling information.

(b)(2) to the extent that your contractor's failure to give you accurate scheduling information is his fault, at least in part, rather than the pandemic. "Consideration" is an essential component to form any contract. In this case, consideration has failed at least partially, because of the significant delay in the contraction.

(b)(4) is similar to the above. Under this sub-section, the consideration for your obligation to go forward to complete the contract, before work has started, fails in a material respect from any cause, in this case because of the inability of the contractor to schedule it.

(b)(6) is a catchall provision. The public interest is prejudiced if your contractor is doing the same thing to others, holding on to customer's money while not scheduling or staring the contracted for construction work. he public interest will be prejudiced by permitting the contract to stand.

It might be well worth your while given the amount of the obligation to contact a CA attorney to made a rescission demand.

Customer
Hi I'm back. My reason for canceling the contract is because of the uncertainty of when the installation will start due to covid-19 . Also when I signed the contact back in February, the agent told me that if I allow them to put their sign on my property for advertisement I will get an additional discount for $500. If they do not return my $1000. deposit I feel that they got a free advertisement and I got nothing for $1500.
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Eric Vander Arend, Expert

OK. You may be able to rescind the contract given the multiple bases I suggest above. In addition to rescinding, the demand should include a demand for return of your deposit given that the contract has failed, and the ordinary cancellation provision in the contract should not apply.

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Eric Vander Arend, Expert

In summary, I think you have a legal basis for rescinding and demanding a return of your deposit. You may have to battle for it, however.

Customer
Ok, thanks for your legal advise.
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Eric Vander Arend, Expert

I'm sorry that I can't give you a more certain answer. There is another CA code section which makes a home improvement contract unenforceable, but it applies if you would have rescinded within the 3-day window after signing which is a right ensured both the CA code as wall as the federal Truth-in-Lending Act.

While maybe not as comforting as i or you might like, I have given you information, not legal advice. I can't create an attorney-client relationship through JustAnswer.

I ask that you accept my answer, and after that, rate the session. Acceptance is in the upper right corner on a laptop and at the bottom of the screen on a phone or tablet. After that, JA will ask you to rate the session. 3-stars or higher gives me credit and compensation. I always strive for 5-star service.

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