Contact Me for a Free Consultation 405-310-9890

Blog

Home Repair Fraud

Posted by E. W. Childers | Oct 10, 2019 | 0 Comments

In Oklahoma a number of acts related to running a commercial home repair business are illegal. 15 O.S. §765.2 sets forth the following as specific violations:

A person commits the offense of home repair fraud if the person knowingly or with reason to know:

1. enters into a consumer transaction for home repair and knowingly or with reason to know:

a. misrepresents a material fact relating to the terms of the consumer transaction or the preexisting or existing condition of any portion of the property involved, or creates or confirms an impression of the consumer which is false and which the violator does not believe to be true, or promises performance which the violator does not intend to perform or knows will not be performed; or

b. uses or employs any deception, false pretense or false promises in order to induce, encourage or solicit such consumer to enter into any consumer transaction; or

c. requires payment for the home repair at a price which unreasonably exceeds the value of the services and materials needed for the home repair;

2. damages the property of a person with the intent to enter into a consumer transaction for home repair; or

3. misrepresents himself or another to be an employee or agent of any unit of the federal, state, county, or municipal government, or an employee or agent of any public utility, with the intent to cause a person to enter into, with himself or another, any consumer transaction for home repair.

Immediately, the deck is stacked against the prosecutor in that the offense requires the prosecutor to prove, beyond a reasonable doubt, that the defendant is "knowingly" doing something that amounts to a violation. The jury is allowed to make inferences but it can be very difficult to demonstrate (without a reasonable doubt remaining) that a person knew or had reason to know a thing.

Prosecutors typically know almost nothing about home repair and so they tend to hesitate before filing a charge on the basis of (A)(1)(a) which relies on proving a misrepresentation or confirmation of an impression of the consumer of a material fact which the defendant does not believe to be true. It is, in fact, hard to know what somebody else thinks is true or what somebody else thinks is false if you are ignorant of the material reality of the profession which you are being called to judge. The defense to such a charge is for the defendant to state that they believe the material fact to be true. Helpful in the defense is documentation such as reports and pictures that support a belief in the material fact. Prosecutors are loathe to hire experts to disprove the defendant's position.

Prosecutors are generally on much sounder ground when they prosecute on the basis of (A)(1)(b). They merely need to show false promises and it's much easier for the jury to look at the evidence of a promise and look at the result and make a sound conclusion regarding whether the promise was false or not. Again, for a the defense, documentation is necessary to show the reasons why the promise wasn't kept. Characterizing the "promise" as an "estimate" is helpful as is rigorous documentation when the homeowner demands changes that change the price of the transaction. 

To prosecute a home repair fraud charge predicated on (A)(1)(c) the prosecutor will have to provide evidence of the value of the home repair. This amounts to finding experts or at least competent contractors to essentially review the work done and conclude that the price charged was not only more than the value of the repair but "unreasonably" more. The value of a service is remarkably difficult to determine except by viewing on a large scale what the market will bear for repairs of the type of which any charged case will serve as an example. An "unreasonably" high price will generally have to be fairly obvious for a prosecution to be able to prove its case beyond a reasonable doubt.

The remaining bases for prosecution, damaging the property with intent to charge for repairing it, and presenting yourself as a government employee to induce a contract for repair are, in comparison relatively easy for the prosecution to prove if the basic evidence exists. They are relatively easy to defend if the basic evidence does not.

The consequence of conviction on a home repair charge in Oklahoma is a misdemeanor conviction on the first offense and a felony conviction for the second. The real consequence for a going business concern facing this charge is the loss of licenses and the reputational damage that will arise if the case is publicized.

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Menu