Responding to GC bond company's affirmative defenses

[szbenne]

Washington-I'm suing my out of business GC bond company for breach of contract. I am not sure how to respond to the false affirmative defenses stating they don't have enough information and to barr the case because of the statute of frauds. They are false because I provided the contract for their contractor, receipts, new contractor contract to complete the job, etc back in Nov at their request and doesnt the statute of frauds apply when there is no contract?

 

[tranquility]

Washington-I'm suing my out of business GC bond company for breach of contract. I am not sure how to respond to the false affirmative defenses stating they don't have enough information and to barr the case because of the statute of frauds. They are false because I provided the contract for their contractor, receipts, new contractor contract to complete the job, etc back in Nov at their request and doesnt the statute of frauds apply when there is no contract?

Unless the "affirmative defenses" end the case right now, you probably won't "respond" at this time. However, since no one has access to the complaint or answer, we really cannot help you too much. You desperately need to get or access a book on procedure as I suspect you don't have the knowledge to successfully prosecute your case. Are you in small claims?

 

[quincy]

Washington-I'm suing my out of business GC bond company for breach of contract. I am not sure how to respond to the false affirmative defenses stating they don't have enough information and to barr the case because of the statute of frauds. They are false because I provided the contract for their contractor, receipts, new contractor contract to complete the job, etc back in Nov at their request and doesnt the statute of frauds apply when there is no contract?

After four tries, I am happy to finally see text in one of your threads.

You generally do not need to respond to an answer to your complaint. The defendant is providing, with his answer to your complaint for breach of contract, the defenses to your allegations. These are what you will argue against in court, using your evidence to support your claims.

You will, however, want to respond to any counterclaim or cross claim, and to any motion made by the defendant.

Here is a link to court rules: https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=CR

Here is a link to defenses and objections: http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=cr&ruleid=supcr12

What the defendant is apparently saying in using the statute of frauds as an affirmative defense is that there is nothing in writing that has been signed to indicate an agreement has been formed. Here is a link to RCW 62A.2-201 Formal requirements, Statute of Frauds: http://app.leg.wa.gov/rcw/default.aspx?cite=62A.2-201

You would be smart to consult with an attorney in your area for a review of the facts that have led to your breach of contract action against the company and for a personal review of your complaint and the answer to the complaint.

Good luck.

 

[szbenne]

Me too

Thank you, I will check this out.

 

[quincy]

Thank you, I will check this out.

You're welcome, szbenne. Thanks for the thanks.

Good luck in court.

 

[szbenne]

Response to tranquility

We are not in small claims court but in the superior court for my county because we are suing for 12,000, the amount of the bond. And it has cost more than that to get the job fonished. The court actually told us they like for these cases to settle outside of court but the defendant won't return our call. We have a signed contract with the contractor, receipts for work and materials proof that we sent a demand letter, and an email from the contractor that asks how much he owes us for the incomplete job so he can claim in bankruptcy. We are trying this without an attorney because of the amount of money we have already lost between the this contractor and the current contractor.

 

[tranquility]

We are not in small claims court but in the superior court for my county because we are suing for 12,000, the amount of the bond. And it has cost more than that to get the job fonished. The court actually told us they like for these cases to settle outside of court but the defendant won't return our call. We have a signed contract with the contractor, receipts for work and materials proof that we sent a demand letter, and an email from the contractor that asks how much he owes us for the incomplete job so he can claim in bankruptcy. We are trying this without an attorney because of the amount of money we have already lost between the this contractor and the current contractor.

You have a more difficult case than you might think. I assume YOU did not purchase the bond, right? I think you have to add the surety as your suit is really against the contractor. Your "breach of contract" is not against the surety alone. I believe you gain standing through statute.

http://app.leg.wa.gov/rcw/default.aspx?cite=18.27.040

 

[quincy]

We are not in small claims court but in the superior court for my county because we are suing for 12,000, the amount of the bond. And it has cost more than that to get the job fonished. The court actually told us they like for these cases to settle outside of court but the defendant won't return our call. We have a signed contract with the contractor, receipts for work and materials proof that we sent a demand letter, and an email from the contractor that asks how much he owes us for the incomplete job so he can claim in bankruptcy. We are trying this without an attorney because of the amount of money we have already lost between the this contractor and the current contractor.

The contractor is filing for bankruptcy?

 

[tranquility]

The contractor is filing for bankruptcy?

Good point for a number of reasons. If there is BK, I'm not sure the bond would even hold up under the statutory requirements. The OP may have to implead the surety with the argument he is a third party beneficiary if the statute does not stand up for statutory impleader. There may be a stay on any actions if there is a BK begun. The OP may have to join any other potential plaintiffs as the bond does not apply to each one hurt, but to all. (Interpleader-type action; although it may be the surety that might have to do that.)

If the OP is facing a real lawyer, from the first question asked by the OP, I suspect this is a LONG way from having much of a chance.

 

[quincy]

Good point for a number of reasons. If there is BK, I'm not sure the bond would even hold up under the statutory requirements. The OP may have to implead the surety with the argument he is a third party beneficiary if the statute does not stand up for statutory impleader. There may be a stay on any actions if there is a BK begun. The OP may have to join any other potential plaintiffs as the bond does not apply to each one hurt, but to all. (Interpleader-type action; although it may be the surety that might have to do that.)

If the OP is facing a real lawyer, from the first question asked by the OP, I suspect this is a LONG way from having much of a chance.

If the contractor files for bankruptcy, it certainly complicates what seems an already complicated situation for szbenne. I recommend szbenne seek personal help from an attorney in Washington. If this is a matter worth pursuing legally, it is worth pursuing correctly.

 

[justalayman]

We are not in small claims court but in the superior court for my county because we are suing for 12,000, the amount of the bond. And it has cost more than that to get the job fonished.

what does it having cost over $12k to finish it have to do with anything?

You seek damages. Damages are not what it cost to have the work completed unless you have already paid the original contractor in full for a "contracted bid" job and the scope of work was not completed. In a contracts bid job, if you had not paid them in full you would have to subtract the balance of what you owed from the cost to compete the work.

Beyond that, damages are the amount over what you would have paid the original contractor to complete the job or to have work redone due to a contractor caused issue.

 

[quincy]

Once the contractor files for bankruptcy, the lawsuit will be stayed and szbenne may find it is not possible to collect any damages, regardless of the amount.

It could be best for szbenne to reach a settlement before this happens and the best way to resolve the matter quickly will be with the help of a Washington attorney.

In other words, I do not see that szbenne can learn enough in what time might be remaining to handle this without personal legal assistance. What can be offered on a forum is not adequate for his/her needs.

 

[justalayman]

Not disagreeing with ya there Quincy. Just a suggestion op review his claim and make certain what he seeks is in fact actual damages. The bond agency would be (most likely) be more willing to consider a payout if it is a valid claim as opposed to an inflated one.

 

[tranquility]

Not disagreeing with ya there Quincy. Just a suggestion op review his claim and make certain what he seeks is in fact actual damages. The bond agency would be (most likely) be more willing to consider a payout if it is a valid claim as opposed to an inflated one.

I don't think the bond agency is going to pay anything out until it knows the full potential of any liability to all customers of the contractor. (Assuming they have liability at all.) The bond is $12K. If the company favors one over other plaintiffs, they may have to come up with more than that $12K.

 

[quincy]

Not disagreeing with ya there Quincy. Just a suggestion op review his claim and make certain what he seeks is in fact actual damages. The bond agency would be (most likely) be more willing to consider a payout if it is a valid claim as opposed to an inflated one.

I didn't see what you posted as a disagreement, justalayman.

I just saw your post as one additional indicator that szbenne may be in over his head with this lawsuit and really requires assistance from an attorney that is local to him.

I don't think we can gather nearly enough facts from him, or he can gather nearly enough information from us, to be of much benefit.