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June 1, 2018

Home-repair contractor must reimburse homeowners nearly $130,000, face new limits

West Des Moines man accused of violating Iowa Consumer Fraud Act

A West Des Moines home-repair contractor accused of taking money for jobs he never completed must pay $129,855 and comply with several requirements to continue doing business as part of an agreement with the Iowa attorney general’s office. 

Joshua Joseph Auten, owner of Over the Top Construction, is accused of violating the Iowa Consumer Fraud Act and other laws. According to a petition, the state’s allegations include that Auten made several misrepresentations to consumers on home-repair projects; failed to provide labor, materials or reimbursement of down payments; refused to respond to consumer complaints; failed to provided notices and follow procedures required by Iowa’s Door-to-Door Sales Act; failed to disclose that he had multiple civil judgments against him; and did business under false names. Auten worked under the name of Big Time Builders in Polk and Dallas counties, although that was not registered as a trade name in those counties. In addition, Over the Top Construction was not registered as a contractor with the Iowa Division of Labor.

Auten denied the allegations but agreed to the consent judgment, which was signed this week by Polk County District Chief Judge Arthur E. Gamble. As a result of the judgment, Auten must now follow several requirements, including that he:

  • Cannot take advance payments for labor or materials (although he can ask consumers to pay suppliers directly);
  • Cannot misrepresent the timeframe in which he will start or complete a project;
  • Must do business under his own name,  or else incorporate his business or register it as a trade name;
  • Comply with all requirements of the Iowa Door-to-Door Sales Act, the Residential Contractors Repairs and Insurance section of the State Building Code.

If a judge finds that Auten failed to comply with the requirements, he could be permanently banned from doing business as a contractor in Iowa, be assessed up to $5,000 in penalties a day for each day he is in violation, and be found in contempt of court -- which could result in jail and/or additional fines.

The $129,855 judgment is intended to reimburse 10 consumers who paid Auten money in advance but did not receive labor or materials as promised.

“Some of these consumers lost as much as $10,000, and one lost $45,000,” Attorney General Tom Miller said. “This case is a good reminder of why we advise consumers to never pay large sums of money up front.”  

Advice for Consumers

  • Check out the contractor before you sign a contract or pay any money.  Ask if the contractor is registered with the Iowa Workforce Development's Division of Labor.  You can check a contractor's registration online through the Division of Labor website, or call 1-800-562-4692 or 515-242-5871).  Be sure to check local references. Also, check Iowa Courts Online for past court cases, and see if there are complaints on file with the Better Business Bureau and the Attorney General's Consumer Protection Division.
  • Get it in writing.  Seek several written estimates for the job you want done. Before any work begins, agree on a written contract detailing work to be done, responsibility for permits, costs, and any other promises. Request a copy of the contractor's liability insurance certificate. Put start and completion dates in writing and consequences if the contractor fails to follow them (example: the contract could be nullified if the contractor doesn't start on time.)
  • Avoid paying large sums in advance to a contractor.  If you have to make a partial advance payment for materials, make your check out to the supplier and the contractor. Insist on a "mechanic's lien waiver" in case the contractor fails to pay others for materials or labor.
  • In most cases, Iowa's Door-to-Door Sales law gives you three business days to cancel a contract signed at your home.

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