I have a few different questions to ask here.
First, I had my boys in a sitter's care for 5 weeks. During those 5 weeks 3 of those weeks after she received her payment something would come up to where she couldn't watch them, but she already had her payment. So we decided to pull them from her care since she was unreliable. Well my DH and I signed a contract stating we would give a 2 week notice or pay the 2 weeks. However, if she didn't hold up her end of the contract of being there to watch them and provide the service as she states would that still be a breach of contract?
Second, my children didn't go there at all last week, they were sick Mon and Tues (which I have no problem paying) and then something came up yet again and she is now stating that we owe her $120 or she is going to sue us. Well...I had originally misread the contract and thought that she had 10 sick days that she would be paid for. Well when going back and re-reading it, those 10 days are not paid and she has used 5 of those days of which she is arguing she has not. The second week with them she text me on a tues night to say her and her son were sick and throwing up..to me that means that she is unable to watch my children, but she is stating she was open that day, which was a Wed. That Wed night I text her to see what was going on and she said she had laid in bed all day and couldn't get out of bed and went to urgent care and had strep, and it would take 24-48 hours for the antibiotics to take effect, so that Thurs was her ONE sick day she claimed she has but not that Friday even tho she was still sick and contagious. So there is 3 days by my calulations that were paid that should not have been paid. Then a week later she text me at 3AM stating she was just leaving the ER and asked if my grandparents could watch them since she had not slept and they gave her a pain shot. But now she is stating that she was open for business that day as well. Then the following week her grandfather passed away, which she didn't charge us for, which was also last week. So now she states we owe her for 4 days last week which is $96 and $24 for Mon when she watched the boys. But according to her contract, I have 4 days that I paid that shouldn't have been paying for, so I technically only owe her $24 for Monday. But she is still demanding the full $120 or else she will file suit with her attorney for a hot check (which is the check I used on Monday to pay her for this week and we decided to not continue with her services so we put a stop payment on the check), for her unpaid bills, and for breach of contract. All the while she is blowing up mine and my DH's phone with texts all through the day and nite, as late as 11PM, telling us that we are worthless, bad parents because we pulled from her care, and all kinds of other instults to try and get a rise out of me and my husband. Does she have any grounds to stand on with these allegations? And is she able to say I need to pay by a certain date or else she will file criminal charges against me...basically on what grounds would she be able to file criminal charges and was this really a breach of contract seeing as she was unable to keep up her end of the deal to be available to watch the boys throughout the week.
1 Answer from Attorneys
A private citizen can make a complaint through the Police department or other public officials, but a citizen cannot bring a criminal case against another citizen. It is up to the Prosecutor in the city or county where the acts occurred whether to charge the alleged check writer with a crime. It is not an absolute rule, but prosecutors tend not to bring criminal charges for stopped payment checks that represent a disputed debt. Most feel they are too busy to address what they consider civil matters.
Your former landlord can sue you in civil court. There are statutory damages that can make it worthwhile for an attorney to bring a small check case. But, They are tough to prove with a stop payment based upon a dispute as to the underlying debt. Therefore, I doubt that it would be profitable for your former baby sitter to have an attorney enter his appearance, unless your written sitting arrangement includes a clause wherein you agreed to pay her collection costs and attorney fees. Even then, the judge may be hesitant to grant more than a small percentage of the check amount as attorney fees. If she sues you and wins, you will be ordered to recompense her filing and service of process costs.
Based upon the facts you described, it sounds like she will likely either hound you for a while or bring a small claims case. You can still have an attorney represent you in small claims or assist you in getting prepared to litigate the case Pro Se (by yourself). If she sues you, based upon the facts you described, you may have grounds to bring a counterclaim.
If she continues to harass you, or has someone else contact anyone about the debt, or your are sued, you should immediately consult directly with a civil practice attorney in your area. Many offer a free or low cost initial consultation. You may only have to pay them to send a letter to the former sitter explaining the relevant legal stance of each side. you might hire them to defend you in a suit brought by the former sitter. They might bring a wrongful debt collection action against someone other than the former sitter.
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