Freshwater Instruments close down

[pgrose]

A few months ago I posted asking if anyone knew why Freshwater Instruments had gone quiet. I waited 9 months for an octave mandola I was assured by Dave Freshwater was finished. His initial estimate was 9 weeks from order to delivery. But there always seemed to be an excuse as to why it had not arrived. This morning I received the following email. So.... no octave mandola, I guess! For other reasons, I feel pretty badly let down.

Hello,
Now that our trustee has allowed us to do this we are sadly writing to let you know that it is with much regret that Freshwater Instruments has been forced into bankrupcy ( liquidation), due to our bank and also the effect of the recession.

We sincerely apologise for the waiting you have endured , without the outcome of an instrument at the end of this, but unfortunately the situation is unavoidable.

If you have paid by credit card, you are able to contact your card company to make a claim under Section 75 of the Consumer Credit Act , and by law,they have to reimburse you the full amount , even when liquidation is involved. There is more info at; www.wheresmyrefund.co.uk.

Freshwater Instruments.

[Jill McAuley]

Oh no! Did you pay in full or just put a deposit down with him? So sorry to hear about this unfortunate situation.

Cheers,
Jill

[pgrose]

I lost the purchase price. Dave had rung several times (only after repeated inquiries from me), always with assurances that everything was fine and the last time a couple of months ago to say it was finished. But even by then I had growing doubts. I feel quite deceived and there's a personal dimension to this, too as I had a special intention for this instrument. And even if the partly-finished instrument was sent to me COD I'd settle for that because I would finish it here. But the Freshwater website is gone as well.

[Daithio]

This is the first I've heard--he didn't send me an email. Perhaps it's coming. I'm more than a little angry about this. He strung me along for 2 1/2 years. That was about 800 bucks lost. There wasn't anything I could do from across the ocean. He probably won't answer, but his name on here is Stringer.

[DerTiefster]

Bankruptcy laws are interesting. Customers obligations are (to my limited knowledge) generally treated as unsecured obligations, and the products they order are generally treated as assets of the producer until they are shipped. Other groups of suppliers to the producer have their claims viewed as superior, and I can see how it developed. The suppliers of a producer are "in the business" and common law, with such concepts as the journeyman's lien, essentially developed to ensure that the wheels of commerce don't fall off immediately. The government has a continuing interest in keeping the rest of things moving even when one party collapses.

This works logically when you are dealing with a commodity supplier, such as a bakery or lumber mill. But when you are dealing with a custom order business, in which the customer contracts for a particular instrument with particular characteristics, and especially when he makes "progress payments," cannot he argue successfully that he is indeed in the first rank of -secured- creditors on the basis of the construction agreement as a contract, and possibly in truth is the -owner- of the item as it is built? While maybe this is not the place for a discussion of legal philosophy, it -may- be possible to make such a case. Of course, the other creditors would disagree, as this position removes assets from their pot of recoverable money. Perhaps it is a question of the nature of proof required to substantiate such a position.

i am sorry for Mr. Freshwater, for his unsatisfied creditors, and for his customers such as you, who are left without recourse.

[Ron McMillan]

As a fellow Scot, I am embarrassed and ashamed by this fiasco. Bankruptcy can affect any business, and Freshwater is almost certainly a victim of the recession, but stringing along customers for years and in the end never delivering products long ago paid for is unforgiveable.

If he comes back into business, I'd avoid him like the plague.

rm

[Clement Barrera-Ng]

I was very close in ordering one from Dave one year or two ago, and spoke with him a couple times on the phone. He was always friendly, sincere and helpful, and in the end I was almost sorry that I did not go through with my order. When some of the cafe members started asking questions a few months back, I thought to myself no way would Dave disappear just like that and not make good on his obligations. I am both saddened and disappointed to be proved wrong this time around.

I really hope that those who had given money to Freshwater can find some kind of recourse to recoup some, if not all, of their money. I was not around when the Ron Oates affair happened, so I didn't know how that whole ordeal worked out, except that there was a Attorney General case of some sort. Is there anything that people had done in the Ron Oates case that could be helpful here?

[michaelpthompson]

It's hard to say what's really going on without more information than has been presented here. Many business fail financially despite the best intentions. He may sincerely have been trying to make good on those orders, but when you're in a hole, it can be difficult to find the resources to deliver on your promises. But you can't tell your customers that, or they may deprive you of the very resources you need to deliver their orders. Kind of like a run on the bank. It may be triggered by actual financial instability, or just as easily by rumours of that same instability.

[Ron McMillan]

Someone from Freshwater used to post here on the forum occasionally. I seem to recall that perhaps it was Dave's daughter.

This thread is a chance for Freshwater to clear the air and, if possible, to send some reassurances to customers who are rightly feeling hard done by. I will be very interested to see if they have the decency to respond.

ron

[Jill McAuley]

It was his daughter if I remember correctly - every so often she'd post, but generally only in response to any negative posts about her dad that might show up on that long thread about Freshwater instruments.

Cheers,
Jill

[mandofun]

Bonjour à tous . Je suis français. J'espère me faire comprendre
En septembre 2010 j'ai commandé et payé une mandole (octave mandola) à David Freshwater (via le site). Hésitant au début à cause de la distance, je me suis laissé convaincre par sa notoriété et ses coups de fils. Fin décembre, ne voyant rien venir , j'ai demandé des nouvelles par mail. On me répond que du retard a été pris en raison du mauvais temps (sic), mais que cela allait s'arranger. Je me renseigne de nouveau en mars : même réponse par téléphone de D.F. me disant de ne pas me faire de soucis et me promettant l'instrument pour avril. Fin mai , après un nouveau mail de ma part, je reçois de nouveau un coup de fil de D.F me disant que l'instrument est prêt , que je serai satisfait et qu'il sera envoyé par UPS le 2 juin. Le 18 juin, n'ayant toujours pas reçu cet envoi, je me renseigne par mail. Et quelle est ma (mauvaise) surprise de recevoir ce mail en retour :
<< Now that our trustee has allowed us to do this ; we are sadly writing to let you know that it is with much regret that " Freshwater Instruments" have been forced into liquidation, partly due to our bank and also the effects of the recession .
We sincerely apologise for the waiting you have endured , without the outcome of an instrument at the end of this, but unfortunately the situation is unavoidable now.
If you have paid by credit card , you are able to contact your card company to make a claim under Section 75 of the Consumer Credit Act , and by law they have to reinburse you the full amount , even when liquidation is involved . There is more info at; www.wheresmyrefund.co.uk .
If you have paid by debit card, you can put in a claim to the bank that provides your card , which is called a "chargeback" ,and you should still get your money back , even with liquidation involved . >>

Je considère que j'ai été trompé et victime d'un abus de confiance. Je vais porter plainte, mais sans véritable espoir de récupérer mon argent. Jusqu'à présent je trouvais l'Ecosse plutôt sympathique !

[mandofun]

Hello to all. I am French. This is a (bad) translation of my precedent post

In September, 2010 I ordered and paid a mandole (octave mandola) to David Freshwater (via the site).Hesitating at the beginning because of the distance, I was allowed convince by its fame and its phone calls.At the end of December, seeing nothing coming, I asked for news by e-mail. We answer me that of the delay was taken because of the bad weather (sic), but that it was going to arrange. I inquire again in March: the same answer by telephone. D.F. telling me not to worry and promising me the instrument for April. At the end of May, after a new e-mail of my part, I receive again a phone call of D.F saying to me that the instrument is ready, that I shall be satisfied and that it will be sent by UPS on June 2nd. June 18th, not having still received this sending, I inquire by e-mail. And which is my (bad) surprise to receive this e-mail in return:

<< Now that our trustee has allowed us to do this ; we are sadly writing to let you know that it is with much regret that " Freshwater Instruments" have been forced into liquidation, partly due to our bank and also the effects of the recession .
We sincerely apologise for the waiting you have endured , without the outcome of an instrument at the end of this, but unfortunately the situation is unavoidable now.
If you have paid by credit card , you are able to contact your card company to make a claim under Section 75 of the Consumer Credit Act , and by law they have to reinburse you the full amount , even when liquidation is involved .
There is more info at; www.wheresmyrefund.co.uk . If you have paid by debit card, you can put in a claim to the bank that provides your card , which is called a "chargeback" ,and you should still get your money back , even with liquidation involved .>>

I consider that I was deceived and victim of a breach of trust.

I am going to lodge a complaint, but without real hope to get back my money.

Until now I found the Scotland sympatico !

[Ron McMillan]

Mandofun provided a translation before I could post my own, rather poor, effort at translating for him.

In my opinion his story reflects very poorly on Freshwater.

[Bertram Henze]

It's hard to say what's really going on without more information than has been presented here. Many business fail financially despite the best intentions. He may sincerely have been trying to make good on those orders, but when you're in a hole, it can be difficult to find the resources to deliver on your promises. But you can't tell your customers that, or they may deprive you of the very resources you need to deliver their orders. Kind of like a run on the bank. It may be triggered by actual financial instability, or just as easily by rumours of that same instability.

Second that - a good luthier does not neccessarily make a good businessman, and that is what you need to be to know the exact moment to pull out; it is a skill that involves seeing the future and is therefore hard to find. Probably, Mr. Freshwater is the one to feel worst about it, there's no reason to suspect fraud. Some poor businessmen become better businessmen by experience - after your 4th or 5th bankrupcy you get the knack - but customers are not inclined to bear with that. Giving money in advance is always a risky thing, and business risks are not abstract accidents happening to other people: they mean you, yes, you are bound to lose money every now and then. You should be aware of that and only do it if you have no other, safer use for the money.

[Dagger Gordon]

I'm sorry to hear this.

Freshwater operated from a town only about half an hour from me, but curiously I have never met him.

There was something about last winter having been very bad in Scotland given as a reason for a delay on one of these threads. I have to say I wasn't convinced by that at the time, and I wondered if all was well.

It is embarrassing to have a Scotsman letting people down in this way, though as Bertram points out he probably feels the worst about it. That's obviously no consolation to those who have been affected though.

I hope most of you will continue to find 'the Scotland symatico'.

[Bertram Henze]

I hope most of you will continue to find 'the Scotland symatico'.

I sure will. The masters of long-term business (think: Single Malt) have my trust.

[Tavy]

I'm very very sorry to hear about all the folks that have lost out here, but a word of caution here before blaming Dave for being dishonest: Bankrupsy laws here in the UK are pretty strict; businesses are pretty much required to continue to take money from customers, and tell everyone that everything is just fine right up to the last second. If the owner does anything else, they can quite literally end up in jail. So no matter what the owner may wish to do for his customers, often they are prevented in law from doing so once the business is in trouble.

I should add, that I've never met or done business with Dave, just a heads up that businesses can be constrained in unfortunate ways from the point of view of the customer. One can only hope that some of you will see some money back, but I'm afraid customers are at the end of the list of creditors under UK law

[Ivan Kelsall]

Bad news all round !. From Tavy - "businesses are pretty much required to continue to take money from customers, and tell everyone that everything is just fine" . For 2 1/2 years as in the case of Daithio ?. If that really is the case,then it's almost collusion between the receivers & the company going into receivership to 'deceive' people - that's fraud,pure & simple.
If i were to take money from say,6 people on here to build an instrument of their choosing,whilst unable to do so for 'whatever' reason,i'd be guilty of 'obtaining money under false pretences'. It's exactly the same as offering goods for sale that you haven't got & taking money for them.
Whilst feeling sorry for Dave Freshwater,i'm sure he wishes things were other wise,it's hard to think that he couldn't have made (tried) some recourse to reimburse the customers that he knew wouldn't be getting their instruments. It's hard to make a judgement without knowing all the facts,but it's a sorry case indeed,
Ivan

[Silly Moustache]

Hi, I'm no legal eagle, but I guess that for some time this business was in trouble. Unpayable debts and insufficient income etc.

At such times the bank trends to take over, and would be instructing the business to get in all the income possible, and probably take all income against the bank's debt.
At this time the business , it's proprietor or directors would be working hard to find some way out of the mess. At some point the bank or the largest claimant would take action to take over the administration of the business. This may also mean taking ownership of products, facilities and all other assets.
I guess they don't call it "receivership" for nut'n.

The owner may well find themselves in a helpless position, and effectively working for the claimants on his debts.

It's tricky, vicious and soul destroying. I used to have a lot of dealings with small businesses, I've seen them fail, and I've seen people, their dreams and their finances destroyed. This is part of the risk of running a business that many don't understand.

I wouldn't be surprised if this business had been struggling with an increasing overdraft and/or business loan, and we know that banks aren't keen to lend at present (unless it is obvious that you donlt need it!)

Your friendly bank will always put their loans at the top of the priority heap, and can become quite ruthless.

Andy

[Elliot Luber]

The end of a company is nearly always messy. It's sad that there is one less mandolin maker in Scotland, one who wants to make mandolins, and patient folks who still want them. It's a lose-lose situation, save for the banks (I won't get political).

[pgrose]

I am angry at the deception. I was always assured everything was OK (but only after I left numerous messages on an answering machine) and, like others, I also received occasional telephone calls explaining that the bad weather had cut off power or that the cold made it impossible to lacquer the instrument and then, two months ago, that it was finished (as Mandofun pointed out, there was always an excuse) but that Dave needed to organise a new contract with couriers etc etc etc
I always opted for patience but it's hard to see how it was never anything else but deception. I am beginning to suspect that there was never an octave mandola made at all, just a notebook with names and telephone numbers and a phone call every three months or more to say that everything was progressing. I had a very special purpose for that instrument and I had always given him the benefit of the doubt on time delays. I doubt I'll be hearing from Freshwater Instruments again.

[Bill James]

"but when you're in a hole, it can be difficult to find the resources to deliver on your promises."

That my friends, is the difference between an ethical businessman and a shark. When the going gets tough, the shark will always take good people down with him because that's his nature. I especially love the suggestion that you force the credit card company take the burden for your misdeeds and thus stick it to the rest of us.

"It's a lose-lose situation, save for the banks (I won't get political)."

It's easy to vilify the bank but the fact is that they are nothing more than businesses made up of good people. Most of the time they get taken for a ride as well as everyone else. Frequently it's a win-lose situation because the bad guy gets a whole lot of money and has to provide nothing in return for it.

[Daithio]

I agree with pgrose on this. We both listened to a lot of stories. Can't say I feel much pity for his legal troubles.

[thistle3585]

I can see both sides of the issue, the customers and Freshwater's, and it is an unfortunate situation. When a business is going under you literally feel like you're drowning and there is a lot of hopelessness and helplessness as you are at the mercy of the banks and courts. However, I have seen three builders go through similar situations in the last couple years and all three turned things around and began making reparations. Obviously not as quickly, and smoothly, as many would hope but they have put forth the effort so I'm still willing to give Dave the benefit of the doubt. I think that people need to remember that there is always a risk when putting a deposit down. What I don't understand is why a retailer would charge a credit card before the product is shipped. My credit card contract prohibits that for this very reason.

[Tavy]

I especially love the suggestion that you force the credit card company take the burden for your misdeeds and thus stick it to the rest of us.

Sigh, this is the issue with international transactions - over here it's the law that anything bought on credit must insure you against this very situation. Therefore all consumer groups here strongly recomend that major purchases are made on credit cards: getting your money back from the card company when things go wrong is common practice here, albeit not something any of us would ever want to have to do.

That said, IMO no builder should be taking money up front for something that hasn't been built yet!!