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Sued in Small Claims, Defendant Served... then sends dunning letter?


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A few key points before moving forward:

  • I am in California
  • YuckCo is a company whom I hired to install internet service. They mailed a cablebox after I specifically asked that they NOT (I already had one that worked with their company) mail it, and later failed to send a technician to hook everything up. After 2 months of missed appointments, I wrote in and told them I am not going to pay monthly charges for something I couldn't use and I mailed back their box. (I had never opened the package.) I got new service through AwesomeCable, whose technicians confirmed YuckCo didn't even have service lines in my area to begin with. I verified this with an independent IT person I hired prior to filing to the Small Claims case against YuckCo. YuckCo continued to bill me, asserting the cable box was a noncancellable lease.
  • I sent a letter asserting my intent to send a check with a restricted endorsement to settle our charges and end the dispute which was received on January 10. YuckCo cashed my check with restricted endorsement Feb 15th. They continued to send me bills, despite this communication and their performance consistent with the contract established by my previous letter.
  • I, plaintiff served, YuckCo in small claims on behalf of my business, SoapySuds after YuckCo failed to provide services to me and claims the lease on my non-working cablebox/cable delivery unit was "Non-Cancellable".
  • As of today, it is known to me that YuckCo is in receipt of my small claims suit, as I now have proof of service.
  • YuckCo sent me a dunning letter/IntentToSue letter which I received today, dated 2 weeks ago, with a postmark of 2 days ago.

I forwarded to all 3 credit bureaus copies of the contract which YuckCo breached, AS WELL AS my letter and a copy of the restricted endorsement check they cashed, and asserted the debt is not owed and therefore should not be reported on my credit report.

 

In TODAY's letter YuckCo says that although the account was for SoapySuds, I am liable as guarantor, and they therefore intend to sue me for the balance of this "non-cancellable" lease. 

 

So, I'm not sure what my move is now. As a business, SoapySuds has already lodged a complaint in small claims, and on its own is probably going to be OK in moving forward in small claims. As an inidividual, I am not so sure.

 

What should I send to YuckCo? A copy of the business' small claims suit?

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YuckCo is over looking one thing: under contract law if one party is unable to perform under the contract then it is no longer valid.  Their inability to install internet service renders the lease for the equipment invalid.  

 

They CAN sue you individually as a personal guarantor for the LLC's debt.  

 

I would mail them a letter stating what I said above under contract law.  If they cannot provide the service WHY would you lease a router?  I would also enclose a copy of the lawsuit and state that I am filing a motion with the court to join the two cases together in one suit.  If they don't back down head off to the rodeo.

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