Responding to GC bond company's affirmative defenses

[Proserpina]

(Texas? Washington, surely?)

 

[justalayman]

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.

But until the BK is filed they don't have that same issue. First come first served (although we have no idea if there are any other claimants and if so, how much they seek).

As well; Sometimes a claim one is filing BK is nothing more than a claim.

 

[quincy]

But until the BK is filed they don't have that same issue. First come first served (although we have no idea if there are any other claimants and if so, how much they seek).

As well; Sometimes a claim one is filing BK is nothing more than a claim.

True. Until a bankruptcy is filed, it is just a claim. It could possibly be a way for the defendant to move the plaintiff into settling the matter quickly for less than what the plaintiff might otherwise be entitled.

Then again, if the defendant does file for bankruptcy and szbenne doesn't settle, szbenne may have nothing to collect.

A Washington attorney could determine if the threat is a legitimate one or not.



(I see now what your reference was to, Proserpina ... I am changing "Texas" to "Washington" in my earlier post ).

 

[tranquility]

But until the BK is filed they don't have that same issue. First come first served (although we have no idea if there are any other claimants and if so, how much they seek).

As well; Sometimes a claim one is filing BK is nothing more than a claim.

The $12K is total bond. For any and all claims against it.

(4) The surety upon the bond shall not be liable in an aggregate amount in excess of the amount named in the bond nor for any monetary penalty assessed pursuant to this chapter for an infraction. The liability of the surety shall not cumulate where the bond has been renewed, continued, reinstated, reissued or otherwise extended. The surety upon the bond may, upon notice to the department and the parties, tender to the clerk of the court having jurisdiction of the action an amount equal to the claims thereunder or the amount of the bond less the amount of judgments, if any, previously satisfied therefrom and to the extent of such tender the surety upon the bond shall be exonerated but if the actions commenced and pending and provided to the department as required in subsection (3) of this section, at any one time exceed the amount of the bond then unimpaired, claims shall be satisfied from the bond in the following order:
(a) Employee labor and claims of laborers, including employee benefits;
(b) Claims for breach of contract by a party to the construction contract;
(c) Registered or licensed subcontractors, material, and equipment;
(d) Taxes and contributions due the state of Washington;
(e) Any court costs, interest, and attorneys' fees plaintiff may be entitled to recover. The surety is not liable for any amount in excess of the penal limit of its bond.
A payment made by the surety in good faith exonerates the bond to the extent of any payment made by the surety.
(5) The total amount paid from a bond or deposit required of a general contractor by this section to claimants other than residential homeowners must not exceed one-half of the bond amount. The total amount paid from a bond or deposit required of a specialty contractor by this section to claimants other than residential homeowners must not exceed one-half of the bond amount or four thousand dollars, whichever is greater.

 

[justalayman]

The $12K is total bond. For any and all claims against it.

Yes, I am aware of that. That is why I also included the " we don't know if there are any other claimants and if so, the amount of their claims".

Waiting for something to happen, especially if there is no reasonable belief there may be other claims, is also called stalling. Obviously we don't have all the facts. That is something. Op needs to investigate. I'm simply trying to give the op some things to consider.

You did post something extremely important though. The op is in the #2 position to be paid (group wise anyway)

 

[szbenne]

Thanks for the responses. The contractor said he was going to file bankruptcy last fall but haven't see anything yet. 12,000 is the amount of the bond and the most we can get from the bond. There are others suing but so far we are the only homeowners and we get first shot before anyone else. I have computed the bid, the amount paid to the original contractor, new contractor bid, payments and it far exceeds the 12,000. So no damages sought just as much as possible to at least get some of what we are out thanks to job abandonment.

 

[szbenne]

Over my head? Definitely but is worth a shot. And I'm a she lol there are too many people taking advantage of others, whether a contactor abandoning his contractual obligations or the help needed being way to expensive for my mother, a recently widowed and retired person. I appreciate the input! Keep it coming.

 

[quincy]

Over my head? Definitely but is worth a shot. And I'm a she lol there are too many people taking advantage of others, whether a contactor abandoning his contractual obligations or the help needed being way to expensive for my mother, a recently widowed and retired person. I appreciate the input! Keep it coming.

Sorry for referring to you as a "he." It is hard to tell with user names.

I hope you were not offended by my comment about you being in over your head. The majority of pro se litigants are in over their heads. It is very difficult to pursue a legal action outside of small claims (and sometimes even IN small claims) if you are not familiar with all of the court rules and procedures. And there are a LOT of rules and procedures.

As a warning: You need to be really careful helping your mother with this legal action if she is the one who hired the contractor and is suing him for a breach of the terms. You do not want to cross from gathering information for her to consider, to practicing law without a license. Unless you are a legitimately named party in this action or you are an attorney, you should not be signing any agreements for your mother or drafting, signing or submitting any court papers for her.

Again, see if you can find a low-cost attorney in your area for a review and assistance, before this legal action gets so messed up that even an attorney cannot save it. Good luck.

 

[justalayman]

So no damages sought just as much as possible to at least get some of what we are out thanks to job abandonment.

This kind of shows why it appears you are in over your head. Everything you seek are damages. If you had no damages you would have nothing to sue for.

 

[szbenne]

No, not offended in the least. The contract does include myself as does the lawsuit. My mom will be making some calls tomorrow to look for low cost assistance. I really had no idea of what all would be involved but im not a lawyer so thats to be expected. The L & I website gives just enough information to start a lawsuit and that's it, so I should have known better...but as I said it's worth a try.

 

[quincy]

No, not offended in the least. The contract does include myself as does the lawsuit. My mom will be making some calls tomorrow to look for low cost assistance. I really had no idea of what all would be involved but im not a lawyer so thats to be expected. The L & I website gives just enough information to start a lawsuit and that's it, so I should have known better...but as I said it's worth a try.

I think you and your mother are smart to look for personal legal assistance in your area. Your lawsuit has enough oddities that any information or guidance we can provide at this point probably won't be enough to help you adequately.

It is always far easier to start a lawsuit than it is to continue with it, especially if your defendant has an attorney who can confuse you with the law. I agree with you, though, that a lawsuit is worth a try if you and your mother believe you have a reasonable claim to pursue against the contractor. It would have been better to determine the reasonableness of a claim before the suit was filed but ... it is what it is.
Good luck.

 

[szbenne]

I wish I had found this forum sooner but it is what it is. Thank you for the well wishes. I'm defintely learning alot

 

[quincy]

I wish I had found this forum sooner but it is what it is. Thank you for the well wishes. I'm defintely learning alot

Learning is good.

Good luck.