Being sued by contractor in Oregon

[jeajack21]

My husband and I are being sued by a heating and air conditioning contractor whose contract states that they will be paid 50% at the first day of work and 50% at completion. They are suing us even though they have not completed the work. Because of no fault of either party the work has been postponed just over a year and they have not been able to complete the work.

We communicated with the heating and air conditioning company that the project has been stalled and we will let them know when it continues. They did not seem to have an issue with this.

They sent the debt to a collection company in which we sent a debt validation and cease and desist letter too. The collection company sent a response to the debt validation letter which did not validate the sum of money requested. The contract shows approximately $4700 due upon completion and the collection company was requested over $5200 plus interest and fees not agreed upon nor stated in the initial contract. The interest that was being assessed was 1.5% per month before it went to collections. The heating and air conditioning company then referred the account to a debt collection lawyer.

The lawyer contacted us after the cease and desist and debt validation. He by FDCPA law is a debt collector. He then proceeded to collect on the same account. I advised him that I was unwilling to pay outside of the contract and that the work has not been complete. In addition, I advised him that the principal balance was incorrect according the contract. This information was also advised to the collection company and the owner of the heating and air conditioning company.

The lawyer and the owner of the heating and air conditioning company are now trying to collect over $6200 on a contract that says we owe $4751.50 upon completion.

The lawyer has already filed in Oregon Circuit Court and we of course are required to file an answer in order to avoid a judgement.

I also might add that the signature on the contract only bears my wives signature.

Questions:

1. Should I file a counterclaim along with my answer?

2. What FCRA, FDCPA and / or ORS trade practice laws have they violated in my counterclaim?

3. Where should I bring up the contract soley bearing my wives signature? In the counterclaim, answer, affirmative defense or all three?

4. Does anyone have any examples on what verbiage they would use in the answer, affirmative defense and counterclaim?

Thank you all so much for reading this lengthy post!!

[cracrap]

are they licensed with the oregon state board of contractors?

first of all, you need to go to the contractors board website and research the contractor and the state's contract requirements,

its possible that they "breached" the contract by failing to abide by and performing the terms and time requirements as outlined in the contract if provided

if so you would file a counterclaim based on their "breach"

never go into court solely as a defendant,always have a counterclaim

i cant tell you how the oregon cslb handles things but i do know how california's would..i suspect oregon is similiar for some things

50% down is not legal in cali and could expose a contractor to some harsh penalties if not license revocation

1.5% interest per month included in the contract ? does this exceed the state usury rate?...

these things could possibly void the contract on its face if this was written into the contract

you need to go to the board's website and get crackin

save the fdcpa claims for federal court, not your state trial court, this will only cloud the issues

your main focus is on defending a simple breach of contract case

[newryman]

I think you are getting in to more complex areas of contract law than a simple debt issue here and would be well advised to go see an attorney. They are almost certainly going to raise the issue of frustration and attempt to hold you liable on that basis. This is not as straightforward as it may first appear.

[admin]

For one thing, your dispute with the contractor is a whole other fight in court. You can't take this up with the collection agency. They don't know anything about it, don't have the power to fix it, nor do they care.

I also recommend you find an attorney.

[cracrap]

im thinkin it was a pisspoor contract as written which is how most contractors write contracts

speakin from personal experience here, ive been in court on this issue before, frustration notwithstanding, the court will also consider unjust enrichment against the plaintiff. they didnt perform the work, they dont get paid for it..

[henry1018]

The court won't consider unjust enrichment unless the Plaintiff can prove that the Defendant has been unjustly enriched. Nearly impossible to do without an admission by the Defendant!

[cbairey]

im thinkin it was a pisspoor contract as written which is how most contractors write contracts

speakin from personal experience here, ive been in court on this issue before, frustration notwithstanding, the court will also consider unjust enrichment against the plaintiff. they didnt perform the work, they dont get paid for it..

did you claim satifaction and accord?

they didnt finish the work, but in consideration of what was done , you call it even they did 1/2 got paid 1/2. now your stuck with half a job done and will just get someone else to finish the work

[jeajack21]

Thank you all for all of your advice and suggestions.

I would like to add the contractor is stating that 99% of the work has been completed, but is requested for 100% payment prior to completion. In addition to the fees, interest, etc. I do not agree that it is 99% complete, however, the point is that it is not complete!

I looked up Oregon statues and found out that the contractor can not collect 1.5% per month unless the account is set up on progress payments. I have not been able to locate whether or not it is legal or not in Oregon for contractors to get paid 50% before work has started or completed. I also found out that they did enclose disclosures of consumer rights along with the contract that is required.

They are licensed Oregon Contractor's with the Oregon Contractor Board.

So, should my counterclaim be a breach of contract? Do I have to state an amount?

Any other suggestions, assistance, advise, etc, would be wonderful?

[jeajack21]

One last thing, we did not claim satisfaction and accord. Is it too late to do that now?

[cracrap]

The court won't consider unjust enrichment unless the Plaintiff can prove that the Defendant has been unjustly enriched. Nearly impossible to do without an admission by the Defendant!

1. the court will look at what was supposed to have been performed in the contract,

2. then will look at pictures or any other evidence if available to determine roughly the percentage of work that has been completed,

3. it will take the percentage of work completed and apply it to the total contract amount and the amount that has been paid already

4. if 90% of the work is completed then the contractor will be entitled to 90% of the contract price, if 10% of the work has been completed, then 10% of the contract price and any amount paid over that amount will be paid back to the defendant if there's a breach counterclaim

5. who gets to determine the percentage of work completed in a "he said, she said case" ? the judge, based on the evidence presented before him

6. ...been there, done that...L.A. Superior Court, more than once

[jeajack21]

Did the courts award attorney fees even if the Plantiff received a reduced award?

[cracrap]

each party bore their own costs

[henry1018]

Guarenteed the contractor doesn't have pictures that speak to the "level of completion"- The only evidence he has will speak to the amount his 'loss' but that is worthless in an unjust enrichment claim- he must be able to prove the defendant's enrichment at his expense. Now, the burden in a breech of contract claim is different- I'm sure his attorney will pursue the breech arguement. Pretty much as cracrap said.