How do I dismiss breach of contract claim filed against me?
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How do I dismiss breach of contract claim filed against me?
I signed a contract with a former employer to repay a debt. Upon paying 70% on the debt, my former employer sent a email to me indicating the remaining 30% is forgiven. Then 3 years later, he filed a “breach of contract” lawsuit against me, claiming that I had refused to pay the remaining balance. Can I use the email he sent to me indicating the remaining 30% was forgiven to: show that I didn’t breach the contract; and to have the case dismiss in court?
Asked on May 7, 2012 under Employment Labor Law, Georgia
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
You probably cannot get the case dismissed: a complaint is dismissed when there is no legal basis for the claims, such as someone suing Bob for something Fred did, when Bob and Fred are wholly unrelated (common example: an apartment is broken into and the tenant sues the landlord; but landlords are not insurers, and not liable for the criminal acts of unrelated third parties). However, when there would be a cognizable legal claim, such as for default on a loan, and the defendant has a factual defense based on showing the loan was foregiven or repaid, the appropriate procedural response is generally not a motion to dismiss. That's because to show tha the loan was foregiven, you need to introduce evidence (e.g. the email), but motions to dismiss are decided just on the face of the pleadings.
Rather, the most appropriate way to respond would be to file an Answer to the Complaint. In the Answer, deny that you owe any money, because the balance was forgiven; then also raise as an affirmative defense "accord and satisfaction"--that there was an agreement to forgive the debt. Then after that, file a motion for summary judgment, asking that the court decide in your favor because the loan was forgiven; to the motion, attach a certification by yourself reciting the facts, including the forgiveness, and a copy of the email as an exhibit to the motion.
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