Paid retainer fee, now wedding videographer is very unresponsive, advice!?

Hello, I'm searching for some assistance on an issue I'm having, and before I take the legal route I figured I'd share my situation on here and see if anyone has any insight they could offer.

 

So in November of 2016 my fiance and I secured a photographer/videographer with a retainer fee of $1,500, and up front everything seemed great as we initially went over exactly what we would be getting out of this company. So we signed the contract, but he didn't (not sure if that matters), and we parted ways after meeting up to hand over the $1,500 check and to discuss our photography and videography options. Well in February my fiance told him we were going to be doing engagement photos so we could send them out in our wedding invites that we planned on sending out in June (this month), and he said he would actually do our engagement photos for us for free, which we assumed was just a friendly gesture since he is somewhat of an acquaintance of my fiance (they have mutual friends) and she has seen him out and about over the years. Well on two separate occasions since then, he would text and say "this weekend I'm free to do your photos", but those weekends came and went without one call or text, and our texts and calls went unanswered for weeks at a time following these instances. It was about this time in the end of February that we saw an ABC news segment about a wedding photographer who was failing to deliver on his end of the contract, and sure enough, it was the same one we went with! Well our wedding is in December, it's now almost July and we have been delaying on sending our invites since we were waiting on this guy to do our engagement photos, and even though he said he'd do those for free, I'm getting a bit perturbed and we now are planning on just sending the invites without photos. I'm thinking of just calling him to cancel and ask for our deposit back, but that leaves me faced with a few questions. He didn't sign the contract, does that make it any less valid of a contract since only we signed it and he didn't? We've asked him to sign it and send over a copy and he has yet to do so, even after texting back and saying that he would. We will send texts and voicemails and get no replies for weeks at a time, than other times we will randomly get an "I'll call you after work tonight, sorry been really busy" text message, which also ends up with no communication being made. I definitely am concerned with losing my $1,500 deposit, but I want to relay to him that if he is too busy that's fine, just please return our money and we will take our business elsewhere. Is there an easy way to go about this, as I've never had to secure someone for an event, and then let them go as their communication was just beyond horrid. There are multiple people on his WeddingWire page now leaving comments saying that it's been almost a year since their wedding and they still are unable to get a hold of him to obtain their photos, whereas before November of last year he had a perfect 5 star review. But the most mind blowing thing is that there are a few reviews within those negative reviews, that are very positive, so it makes me think he's picking and choosing and his priorities are just completely out of wack. I plan on calling and most likely leaving a voicemail this weekend, but just want to make sure I don't say anything that I shouldn't or that may discourage him from just being like "screw these people" and taking off with our money. In the news segment about him, it said that he refunded the money to the people so I hope it goes well, but just want to make sure I'm not completely overreacting as I've never been in this situation.

 

I didn't put any names on this post as I don't want to burn any potential bridges, but just trying to proactively fix this as I can see it going very bad already and our wedding isn't even here yet.

 

Thanks in advance!

Edited June 29, 2017 by William Michael

I am not a lawyer, but I have been in business for many years.

 

Within what you have written there are discrepancies, the key discrepancy is that you refer to the $1500 firstly as a “retainer fee” and then later as a “deposit”. Which is it?

 

There is also a lack of key information, primarily you need to disclose:

 

1. Do you have a copy of the Contract that you signed?

 

2. What does the Contract stipulate about your rights to cancel the contract and the return of the retainer fee / deposit?

 

3. The choices that you have available are dependent upon where you live, (ergo laws are applicable and what rights you have as a consumer). So we need to know that, too.

 

***

 

Based upon no particular local law, which you might need to know if you get legal about this, my broad brush answers are:

 

> it probably really doesn’t matter that much that the photographer didn’t sign the contract

 

> if the photographer said he would take the engagement photos then that is very likely a binding contract, but that is more difficult to prove than having it stated in a written contract

 

> the fact that a News service has run a story on this photographer is a red flag and it is probably in your better interest to quit

 

> it is better to get out sooner, rather than later

 

> if the business is shonky, then it will probably be difficult to get the $1500 returned even if you have the legal entitlement to have it returned: in the case of the photographer becoming difficult to return the money you will need to assess the costs of chasing that money compared to the likelihood of success. Advice on this particular point is very much dependent upon where you live and also whether the payment was a “Retainer Fee” or a “Deposit”

 

WW

Small Claims is cost effective and works (to an extent) no lawyer needed. An individual in a different service business did not complete work we paid for. The first time in a long life I had to go to court. Pretty much cut and dried -- we told our story as did the other party. The Judge ruled in our favor. We had a bit of fooling around and follow up, and got most of the money back at no added cost. You will need to find out what is required in your jurisdiction.

I am not a lawyer, but I have been in business for many years.

 

Within what you have written there are discrepancies, the key discrepancy is that you refer to the $1500 firstly as a “retainer fee” and then later as a “deposit”. Which is it?

 

There is also a lack of key information, primarily you need to disclose:

 

1. Do you have a copy of the Contract that you signed?

Yes I have a copy of it, it was actually done through the companies website, after being referred to them via WeddingWire.

 

2. What does the Contract stipulate about your rights to cancel the contract and the return of the retainer fee / deposit?

It calls it a "retainer" on the contract, and it does state that it's non refundable, but the reason I'd request a refund is for no reason other than the photographers sudden disinterest in his obligations.

 

3. The choices that you have available are dependent upon where you live, (ergo laws are applicable and what rights you have as a consumer). So we need to know that, too.

I live in South Florida, Lee County to be exact.

 

Thank you for such a quick reply, much appreciated.. Also I greatly understand that nobody here is technically able to give legal advice, I'm only asking for suggestions as I've never been down this road before with somebody and I assumed that many on this site would have been and been able to offer guidance..

 

1. Do you have a copy of the Contract that you signed?

Yes I have a copy of it, it was actually done through the companies website, after being referred to them via WeddingWire.

 

2. What does the Contract stipulate about your rights to cancel the contract and the return of the retainer fee / deposit?

It calls it a "retainer" on the contract, and it does state that it's non refundable, but the reason I'd request a refund is for no reason other than the photographers sudden disinterest in his obligations.

 

3. The choices that you have available are dependent upon where you live, (ergo laws are applicable and what rights you have as a consumer). So we need to know that, too.

I live in Lee County, Florida.

 

Also, his mentioning of the engagement photos being offered as an addition free of charge is still stored in the text on my fiance's phone. She has the entire conversation saved from the very first text, up until the last "i'll call you later i'm really busy" text from just last night.

Small Claims is cost effective and works (to an extent) no lawyer needed. An individual in a different service business did not complete work we paid for. The first time in a long life I had to go to court. Pretty much cut and dried -- we told our story as did the other party. The Judge ruled in our favor. We had a bit of fooling around and follow up, and got most of the money back at no added cost. You will need to find out what is required in your jurisdiction.

 

Thank you for your insight sir I appreciate it.. I have pondered the idea of possibly going that route, even though I hope it doesn't have to go down that road because this seems like he should just do the right thing and either return our money because he's too busy, or just start showing up when he says he's going to show up.. It's literally like he just says little one liners to keep us from thinking he's totally disappeared off the grid.. But it is a pretty cut and dry scenario here as well, so hopefully we get this figured out soon! Thanks again!

The worst case scenario here is, you lost $1500 to a crook. If you start with that, you only can gain from there. Even if you sue and are awarded a settlement or judgment, collecting it is another matter entirely. You paid by check, which unfortunately, limits your options. If you had paid with a credit card you might have had some sort of buyer protection. I know that isn't helpful, but might be if someone else reads this.

 

At this point, it would seem (based purely on your one side of the story) that someone just cheated you out of $1500. So the question becomes, other than that $1500, what do you have to lose by going after him? Probably not a lot. Look at your contract and see what your options are if you cancel. If he called it a retainer, then he is "retained" to photograph your wedding. Will he show up? Will he deliver the photographs? Good questions.

 

It is certainly an unenviable position to be in. If he's a crook, then you just lost $1500. All you can do is have him (hopefully) shoot your wedding or replace him entirely and lose the $1500. If he's NOT a crook, getting him on the telephone and expressing your concerns over the news story and what you're experiencing will make him pony up and either refund your money or do the right thing and shoot your wedding (and deliver the images).

 

Finally, and this is probably the advice you (may not) want to hear, but confronting him about it might solidify that he's a crook and that you've lost that $1500. That way, you're no longer in this "limbo" state. You'll at least know the money lost and you can then move on and hire someone which a much better reputation and history.

Edited June 30, 2017 by michaelchadwickphotography

Yes I have a copy of it, [the contract]

 

Good.

 

Also, his mentioning of the engagement photos being offered as an addition free of charge is still stored in the text on my fiance's phone. She has the entire conversation saved from the very first text, up until the last "i'll call you later i'm really busy" text from just last night.

 

Very good.

 

[in the contract] It calls it a "retainer" . . . and it does state that it's non refundable, but the reason I'd request a refund is for no reason other than the photographers sudden disinterest in his obligations. I live in Lee County, Florida.

 

Understood. Thank you

 

Photo.net has had quite a few questions from USA people about “non-refundable retainers”. I don’t work in the USA. There are many (experienced) folk who do.

 

From my memory, I think that in some circumstances the “retainer” can be/should be refunded. That depends mainly on how far out from the engagement date and whether or not the Photographer can reasonably secure (or should be able to secure) another booking. That’s why I mentioned that if you have misgivings about this Photographer then it will be better to act sooner rather than later.

 

I agree with Michael Chadwick in that if the business is shonky then requesting / demanding the return of the retainer and release from the contract will probably solidify the shonkiness and result in a battle.

 

I think that another question that you need answered is can you void the contract (i.e. get out of it). What I mean is, you might choose to lose the retainer down the drain, but what if the contract is NOT voided (dissolved and you are released from it) and the Photographer turns up on the appointed day and performs the necessary duties . . .you need to know if you can be held liable for the full costs as per the contract.

 

“Small Claims Court” as mentioned by Sandy, is suggested often and I understand that such a type of court operates in every State and Commonwealth of the USA, so the best value for money legal route would probably be to go there: again my view is to make a choice and then definitive move sooner, rather than later.

 

Obviously, before you make a choice you should confirm exactly where you stand legally.

 

Good luck.

 

WW

Edited June 30, 2017 by William Michael

Thank you very much for all of your input and insight on this matter.. As you guys' had stated, and as I told my fiance, I feel if we just go to the guy and straight up demand a refund, we'll probably hear from him a lot less than we do now (if that's even possible) so I'm not sure if that's the best route to go without thinking it through first.. But then again, it does sound like he's kinda shafting us already by literally never responding or calling when he says he will.. I know the photography industry is very time consuming, but I doubt every photographer out there treats their clients like this.. We still owe him $1000 to satisfy the contract as it was a $2500 contract, so if we only paid $1500, and the rest is due before the wedding, I'd hope he doesn't show up on the wedding day and try to pull a stunt of some sort..

 

I just think this is totally asinine, it makes it seem like anyone can just pose as a vendor, take your money, than disappear..

Process to prepare for small claims (here at least) requires reasonable efforts to resolve the situation. Notes on phone calls, saved EMails, Copy of Registered / Return Receipt letter each requesting resolution of the dispute. Wouldn't hurt as you move forward to do something similar, just in case. As to showing up at the wedding, his pattern failure to communicate and follow through would suggest to any reasonable person you cannot count on the individual and need other reliable arrangements. Good Luck!

Process to prepare for small claims (here at least) requires reasonable efforts to resolve the situation. Notes on phone calls, saved EMails, Copy of Registered / Return Receipt letter each requesting resolution of the dispute. Wouldn't hurt as you move forward to do something similar, just in case. As to showing up at the wedding, his pattern failure to communicate and follow through would suggest to any reasonable person you cannot count on the individual and need other reliable arrangements. Good Luck!

 

Well in the most recent news story they said that he didn't even show up in court for two cases, which by default led to a victory for the defendants but the attorney said now is the hard part, tracking him down and getting him to pay.. I wonder what happens if someone loses in court like that and just refuses to pay..

 

Thank you for the additional input, I have gathered all that stuff up this morning and will plan on sending over our email of intent to cancel..

Out here, the court issues an order to the Sheriff who can often find the individual. If they are employed, their wages are garnisheed, and the employer issues a check which you receive from the Sheriff. Property can also be seized. There is no way to stop the individual from "skipping" -- leaving the jurisdiction. I think that is unlikely over a comparatively small sum.

Out here, the court issues an order to the Sheriff who can often find the individual. If they are employed, their wages are garnisheed, and the employer issues a check which you receive from the Sheriff. Property can also be seized. There is no way to stop the individual from "skipping" -- leaving the jurisdiction. I think that is unlikely over a comparatively small sum.

 

I was hoping that it wouldn't just lead to a dead end even if we won in court, which I'm sure we would as we have no reason not to.. I guess in the interim it's time to start shopping around for a new photographer/videographer..

 

Side note, i just found the guys Instagram and seems like he's been on the road traveling and having a great old time, as of yesterday, smh..

Sorry to hear all this it makes me angry/sad that people do this kind of thing if we lived near you we would offer to jump in and save your big day we do hope you get this mess sorted and enjoy your wedding

I am curious. (and playing devil's advocate here)

 

Aside from the lack of/questionable contact, has he actually violated any of the terms of the contract you signed?

 

While he offered to do the engagement photos for free, is there any mention of them or reference to them in the contract?

 

Is there a requirement in the contract for contact, and/or a specified manner to discuss or plan for changes in plan?

 

Is there any mention of shooting requirements/preferences for the day of? (as in something like 'he will be in charge/ the only photographer')

 

 

The reason I ask these is because they relate to your options at this point. From the post, it sounds like you are still obligated to hold up your end of the contract. While he may not have been in appropriate contact, if he is not contractually obligated to it, he can blow you off until the day of the wedding. Same goes for the engagement pics. If they are not mentioned in the contract, you have no agreement with him that he has violated. Unfortunately, unless he violated the terms of the contract, you need to be prepared for him to a) show up on the wedding day, b) shoot on the wedding day, c) demand payment per the contract's specifications. I mean, obv. at this point you do NOT want that, but while some texts and/or emails can be used in court as supporting documentation, and, in some cases, a contract, in this case, the contract itself will be the primary 'agreement' referred to by any court you seek remedy from - IT will be the decider - not ambiguous texts or an 'ill get back to you' email/voicemail. The last question is because if a), b), and c) occur and his contract specifies his priority on the big day, even if you hired another photog, he could still effectively ruin your pictures from the other photog (it would obv. be incredibly unprofessional, but yeah, hypothetically possible). The thing is, if he hasn't violated any of the terms of your agreement, and YOU do, he can legitimately sue you for damages. Do I think he'd be successful? meh, probably not so much, but you'd likely at a minimum, end up owing him the remainder.

If you lose faith in the videographer, you can cancel your contract at any time, whether before or during his performance of the contract. You could be liable for paying for any contracted work already carried out but not for the work not yet done. As for the "retainer", that depends on the law in your jurisdiction. The whole question of retainers, deposits, down payments and liquidated damages is controversial and often misunderstood.

 

With respect to a "retainer", in many jurisdictions, one must determine whether the fee is a "true" ("classic") retainer or an ordinary retainer. In most jurisdictions, a true retainer is the immediate and non-refundable property of the service provider. Today, true retainers are very rare, ever for lawyers. Ordinary retainers are applied against work actually performed. If the client cancels the contract before any work is done, the entire amount must be refunded. This is also generally the case with "deposits", but depends on the specific wording of the contract and the law in your jurisdiction.

 

The worst case scenario is that you might lose the $1500 "retainer", if you back out of the contract before any work is done. If no work is done, the usual legal position is that you can not be required to pay the entire amount of the contract, unless there is a clause specifically providing for payment "as liquidated damages" of the entire contract value of $2500.

 

The foregoing information is simply my opinion, not legal advice to be relied on. I am not an attorney but have been a legal and government translator for over 25 year, and I believe that my opinion is informed.

 

I cannot tell you what to do, but you might want to dicuss your situation with a lawyer. If I were in a similar situation, I would probably send the service provider a registered letter telling him that I had lost faith in his ability or intention to carry out the contract and that I considered the contact to be revoked, cancelled, null and void. I would demand the immediate refund of the initial payment. I would add that if no refund was made, I reserved my rights to any appropriate legal recourse.

 

If no refund was received in say ten days, I would immediately institute proceedings in small claims court against the service provider.

The small claims court usually helps people understand and properly file a complaint. A small claims filing fee is usually under $100 and is added to the judgment for damages, if you win. Generally, pre-judgment interest at the rate prescribed by law is added to the award for the period from the date of filing to the date of the court's ruling. (In some jurisdictions, there are long delays before a case is heard.)

 

Often, a defendent who knows he is on thin ice will pay immediately upon receipt of the summons or will not show up and the plaintiff wins by default.

 

If I understood correctly, you made and signed the contract, drafted by the service provider, over the Internet, without any real possibility to negotiate the terms. Since the contract was drafted by the service provider, any ambiguity or lack of clarity will be interpreted in YOUR favour. Also where the terms are non-negotiable, the contract is called an adhesion (standard form or boilerplate) contract and the adherer, not the service provider, has more protections.

 

Once you give notice of cancellation, the videographer has absolutely no right whatsover to show up an start filming. In fact, even if you gave no notice of cancellation before the event, you could require him to leave the premises at any time, even if you allowed him to begin and then decided he should leave. Refusal to leave would constitute criminal trespass and a 911 call should quickiy get him removed. The maximum compensation would be limited to the value of work done before being ejected, unless the contract has a "liquidated damages" clause specifically requiring full payment in the event of cancellation before or during the wedding.

Edited July 14, 2017 by DrBen

You stated that he didn't sign the contract...if this is correct...there is no contract. You just handed him 1,500 dollars. Did you make a notation on the check...'Payment for photography"? If not that's a tough one.