DRAFT 12/6/24
Court rules vary by STATE and even COUNTY (local rules). #
My client is in California, one of the most consumer-friendly states. She recently received the Sunnova Notice of Default, so we are preparing to defend and submit our counterclaims.
A reader was recently served with the California Summons and Complaint, so I am looking up California resources and sample filings.
Answer, Counterclaims, or Motion to Dismiss #
I am focusing on how to file an ANSWER to avoid a DEFAULT JUDGMENT.
Most Sunnova customers have strong counterclaims, but that’s more complicated.
You could also file a MOTION TO DISMISS, but then Sunnova can file its OPPOSITION, and you then should file your REPLY in response to the likely many lies. More work for you and if you prevail, you get NOTHING.
It’s best to file an ANSWER with COUNTERCLAIMS.
Sunnova’s claims could be dismissed and you could get a check from Sunnova.
Since that’s more complicated, you can file just the ANSWER and either you or your attorney can AMEND your Answer to include your counterclaims later.
I found legal forms at Solosuit but do NOT recommend it as they are working for COLLECTORS!
Retain a lawyer, if you can find one!
It is tough to find attorneys willing to take your case on contingency (you don’t pay the lawyer upfront). Most lawyers prefer to work for thuggy corporations.
Representing consumers is very risky for attorneys because consumers sometimes misrepresent what happened (often not deliberately), don’t have good records, and might suddenly refuse to testify in court or attend a deposition because they are afraid and stressed, etc.
Many judges despise consumers and consumer lawsuits.
After all, judges get special treatment from credit bureaus and other corporations. Their dockets are full and the very last thing they want is 200 million consumers filing lawsuits against their benefactors (corporate campaign contributions and influence peddling as has been exposed in the US Supreme Court.)
I will make an effort to contact California debt collection CONSUMER attorneys and I will update here with the results.
I am NOT an attorney!
I have personal legal experience and helped many of my clients, but if at all possible you should retain a COMPETENT attorney. Sadly, many of my clients’ lawyers were only interested in quick settlements and their own payday.
Affirmative Defenses #
From the California Courts Self-help Guide
Respond to a debt lawsuit
https://selfhelp.courts.ca.gov/debt-lawsuits/respond
Common types of defenses for debt collection lawsuits
https://selfhelp.courts.ca.gov/debt-lawsuits/respond/defenses
I’m only posting the defenses applicable to our situation, so please read the entire page.
Breach of contract by Plaintiff
If the plaintiff did not do everything it was required to do according to the contract, then you may not be legally required to pay what you owe. You may be able to use breach of contract by Plaintiff as a defense.
This defense applies when Sunnova failed to monitor and repair the system or failed to comply with any other obligations under the contract.
Fraud, misrepresentation, or deceit by the plaintiff
If you feel you only entered into the contract because of misrepresentations, fraud, or deceit by the plaintiff, you could argue this defense.
This defense applies when you were LIED to about checks from your utility instead of bills before you signed the contract, but you never got checks and still get bills.
In our case, it appears that Sunnova altered the terms of the agreement with a fraudulent Amendment to the contract, lowering the guaranteed production.
Unclean hands
This argues that the plaintiff has committed wrongdoing and is attempting to benefit from this wrongdoing.
This defense applies to Sunnova’s failures to properly respond to inquiries, promises repairs but does not repair, countless calls or emails with no meaningful messages and no resolution to problems, etc. Ignoring emails and calls. Providing false information to BBB and regulators after you complained. Refusing to accept delinquent payments to bring the account current and instead filing suit.
Recoupment
This argues that the defendant could have sued the plaintiff, for example, under the Rosenthal Fair Debt Collection Act, and is therefore entitled to an offset of the amount that would have been recovered.
The CA Rosenthal Fair Debt Collection Act and the Federal Fair Debt Collection Practices Act (FDCPA) might also provide you with counterclaims.
Lack of privity
This defense argues that you and the plaintiff did not have a contractual relationship, or if the plaintiff is not the original creditor, that the contract was not properly assigned to the plaintiff.
This defense may apply to customers who originally signed up for solar with companies that were later acquired by Sunnova. Keep in mind that Sunnova’s monitoring and repairing of the system might establish a contractual relationship.
Offset
The amount asked for in the Complaint is too high because the Plaintiff did not credit you for the money you paid or the Plaintiff owes you money
Extended outages can result in significant damages. For example, if Sunnova paid you $300 at $.17/kWh for underperformance, but you pay $.34 to your utility company, the underperformance cost you $300 in utility payments (possibly more if there are taxes and late fees.)
Prevention of performance
If you tried to pay but the plaintiff would not let you, you may use the prevention of performance defense. For example, you offered payment in full, but the plaintiff would not accept it.
This defense applies to Sunnova customers who tried to pay, but Sunnova and/or their attorneys refused.
Failure of consideration
This argues that the goods or services received from the plaintiff were so poor that any further payment would be unconscionable.
This defense applies to substandard or incomplete installations, damages to your roof or other property, countless phone calls or emails to get to a resolution, etc.
I will update with a sample Answer.
