late payer/ comments on need for LOI / comment on record retention June 12, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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late payer/ comments on need for LOI / comment on record retention
June 12,  2017
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late payer
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Ken,
    We have a customer that is late on his payment and has not responded to recent phone calls to clear this matter up. We disconnected his monitoring services June 1st for non payment and he is not aware of this. He called today and left a message to return his call which I am going to do in a few minutes. My question, is before I call him back, is if he wants to make the payment and continue services now, do I need to get a new contract signed or can we continue with the old. He still has about a year left on the original contract.
    Thank You,
Anonymous
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Response
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    The scenario does have legal implications [and no doubt difference of opinions] because of the way you terminated service.  Cutting off services without any notice isn't a great idea.  Even if the contract permits that action, it's not recommended procedure.  You have two choices when it comes to terminating a late payer.

• A letter noting the default and giving opportunity to cure before services are terminated
• A letter terminating service, no cure opportunity, setting a specific date and time for termination of services

    If you do intend to terminate services then there should be no opportunity to cure and you must terminate on the date and time specified.  Do not continue to service [and that means monitor also] after that time.  If you have followed this procedure and the subscriber makes contact and wants to continue your service, then you'll need to either

• reinstate the old contract that you already terminated, or
• require the subscriber to entered into a new contract [better choice if you can get a new updated contract signed]

    But the above question places the alarm company in limbo [or purgatory, neither here nor there].  The subscriber doesn't even know his contract and services were canceled.  If you want to deem him in default and the contract terminated then you need to let him know and tell him that service will be continued only if he signs a new contract [hopefully for your sake it's a new updated Residential All in One].  If he doesn't know the service was canceled you can also just tell him to make payment,  You can let him know service has been suspended and will be restored when payment is made or you can just restore service [and hope that no loss occurred while you suspended the service]. 
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comments on need for LOI from June 3, 2017 article
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Ken-
    A handshake?  That was from a different era.  Do Victor Harding's give those? Victor gets my vote [for using LOI]
Regards
Dennis Stern,Esq
Of Counsel to Kirschenbaum & Kirschenbaum PC
DStern@Kirschenbaumesq.com
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Ken
    I agree 100% in avoiding the LOI. By agreeing you are setting the deal terms without seeing the details. With sales, the devil is always in the details. You might agree to a purchase price, but not the payment schedule. You might agree to the payment schedule but not the interest if the amount is being paid over time. You might agree to the multiple but not the holdback. You might agree to the holdback but not the acceptable terms of offset as a result of an undefined attrition rate. I could go on and on. Would you by a car based on model make and color without checking the engine? If so, you're right, maybe an LOI is for you. Doing the deal yourself without lawyer is probably in your bag of tricks as well.  I always wondered what makes a person built with an aptitude of risk to lick a frozen flagpole. Kind of the same crowd in my mind. 
Jennifer Kirschenbaum, Esq.
Kirschenbaum & Kirschenbaum, P.C.
(516) 747-6700 x. 302
www.kirschenbaumesq.com
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Response
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    See, great minds can differ.
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comment on record retention from June 2, 2017 article
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Ken:
     See SHRM record retention advice attached.  
https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Documents/Federal%20Record%20Retention%20Chart.pdf
Stanley Oppenheim
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Response
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    Another great mind.  I think the chart essentially substantiates the 2 to 7 years I recommended, depending on the records.
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Kirschenbaum & Kirschenbaum PC adds two new attorneys to its Alarm Division:  Jonathan Rogoff, Esq., has been promoted from Law Clerk to Staff Attorney in the Alarm Licensing Division.  Kieran Bastible,Esq. has joined the firm as counsel in the Complex Litigation Division.
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THE ALARM EXCHANGE

Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com
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