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Clairification on Termination Clause in Contract - New Jersey


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I am getting sued by my garbage company (for my business). I'm hoping someone can help me understand if this termination clause from their contract will help my case.

DEFAULT, TERMINATION.  If, During the Term, either party shall be in breach of or default under any provision of this Agreement ("Default"), the other party may, at its option, (i)suspend its performance until such default is corrected and the non-defaulting party has been fully compensated for any loss resulting from such a fault, or (ii)terminate this Agreement, provided, however, that no termination shall be effective until the complaining party has given written notice of a Default to the other party and the other party has failed to cure such Default within ten (10) days of such notice  (with respect to a failure to pay) or within thirty (30) days (with respect to all other breaches or defaults). In the event that Customer fails to pay Company or fails to perform any other obligation under this Agreement, Customer shall pay, in addition to the amounts due, any and all costs incurred by Company as a result of any referral by Company to an attorney. Notice of termination shall be in writing and sent by certified mail, postage prepaid, return receipt requested at the addresses set forth on the reverse side.

Long story short, they terminated my service for non-payment.  I wasn't paying them because they were missing pick ups and still charging me. They never notified me of the termination in writing as described above. They simply picked up the trash container and left.

If this clause does help me what is my next step?  Should I just go to court and argue it?  Should I speak with the opposing council and ask for a copy of this termination letter?

Thank you in advance for any assistance you can provide me with this matter.

 

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Do you have a list of dates you can use to prove your side? Such as your previous payment had you paid up in full for service from __________ to ______________, garbage pickup discrepancies started on _______________, you contacted them on ____________________ by phone or in writing with no improvement in service.

During the times they didn't pickup, what did you do to get rid of the garbage? If you had to pay someone else, that would be a potential counterclaim.

Have you been served with a summons and complaint? Is this small claims?

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Unfortunately I do not have exact dates.  When they would miss a pickup we would call them to let them know.  They would always say, "OK, no problem we will send someone out to do an extra pickup".  No one ever came and then on the next pickup day the garbage was gone.  This left nothing to complain about until we got billed for all the pickups.  When we would complain they would just say we will give you an extra pickup this month.  We are a small company so the bin was never that full and we could not keep up with the missed pickups.  The service got worse when one day they came out to paint the trash bin and put it back in front of another office.  It took them over a week to get it back.

Normally I would have cancelled this service after the first few problems. Unfortunately the waste companies seem to have a monopoly in certain areas and they don't cross each others territory.  Interstate Waste is the only option in our complex.  The contract they make you sign if you want service is for 5 years with 3 year renewal.  If you cancel early you have to pay 50% of the remaining contract.  It is a horrible agreement but with no other choice for trash pickup this was our only option. 

After not getting anywhere with phone calls to them about the poor service we stopped paying because we were tired of being charged for service we were not getting.  Then one day they came and picked up the bin and left.  They never even told us.  We just went out back to put out the trash and it was gone.  Then we started to get collection calls asking for thousands of dollars for the 50% of the remaining contract.  There was no negotiating.  Ultimately it has ended up with them suing us for $1620.14.

Let me know if you need any other background info.  Thank you for your assistance with this matter!

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@FHIW If you've been served you'll want to show up in court or they get a judgment by default. If it's small claims, check the rules of civil procedure, in other states it's no need to answer, it's automatically denied just make your appearance. Usually informal rules of evidence where each party brings what they have and the Judge can hold a hearing at the time. You'll want to verify all that of course for your state. If it's not considered small claims, you'll need to prepare a written answer.

I'd definitely tally the total of extra pickups you were charged for. For proof of all the calls, your phone bill calling history or phone logs should come in handy. That contract is something I'd bring along with notes and bills on their failure to comply and compensate.

You can also look into your discovery rules. Again with small claims this may be something you need to ask the Judge for permission (leave of court). You could request all the detail you need, such as production of documents showing their call records from you and their notes on what they'd do.

Should I speak with the opposing council and ask for a copy of this termination letter?  If they didn't include it with the complaint, you could request it through discovery. See if New Jersey rules require the contract to be attached to the complaint. If so, motion to dismiss for not following that rule then they'll have to produce it or the case should be dismissed.

If you have time, check your city/county/state garbage pickup rules to see some formal laws you could use in your favor. New Jersey Dept Environmental Protection Division of Solid and Hazardous Waste making sure residential and business differences are taken into account. If you see something stating garbage is to be picked up twice weekly but it's only done weekly on an inconsistent basis and so-on.

 

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