NOTICE OF DEFENDANTS MOTION TO DISMISS

IN THE MAGISTRATE COURT OF ROCKDALE COUNTY

STATE OF GEORGIA

CERTIFIED ROOFING & GUTTERS      )

Plaintiff,      )

)

v.      ) Case No. 2022-MAG-M15

)

LORENZO KILGORE      )
Defendant.      )

NOTICE OF DEFENDANT’S MOTION TO DISMISS

You are notified that on _______________ (date), at _______ (time), or as soon thereafter as the Defendant can be heard, in Courtroom ___ of the Magistrate Court of Rockdale County, Georgia, the Defendant will bring on for hearing his Motion to Dismiss Plaintiff’s Complaint for the reasons stated in the attached Motion.

Dated this ____ day of April, 2022.

Respectfully Submitted,

___________________________________

Lorenzo Kilgore,

Defendant in pro per

IN THE MAGISTRATE COURT OF ROCKDALE COUNTY

STATE OF GEORGIA

CERTIFIED ROOFING & GUTTERS      )

Plaintiff,      )

)

v.      ) Case No. 2022-MAG-M15

)

LORENZO KILGORE      )
Defendant.      )

DEFENDANT’S MOTION TO DISMISS

NOW COMES Lorenzo Kilgore, Defendant, and files this Motion to Dismiss Plaintiff’s Statement of Claim, and hereby avers as follows:

  1. A motion to dismiss pursuant to O.C.G.A. § 9-11-12(b)(6) will not be sustained unless (1) the allegations in the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. State v. Singh, 291 Ga. 525, 529 (2012).
  2. In deciding a motion to dismiss for failure to state a claim, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. Quarters Decatur, LLC v. City of Decatur, 347 Ga. App. 723 (2018).
  3. Plaintiff’s claim is that Lorenzo has refused to pay the balance for new roof installation. Plaintiff has no evidence to support the false claim that Lorenzo has refused to pay the balance for new roof installation because such evidence does not exist.
  4. On August 31, 2021, Plaintiff filed a claim of lien against Lorenzo’s property.
  5. On September 14, 2021, Lorenzo filed a notice of contest of lien.
  6. Plaintiff did not respond to the notice of contest of lien filed by Lorenzo. GA Code § 44-14-368 provides in pertinent part as follows: “The clerk of the superior court shall cross-reference the notice of contest of lien to the lien. The owner or his or her agent or attorney, or the contractor or his or her agent or attorney, shall send a copy of the notice of contest of lien within seven days of filing by registered or certified mail or statutory overnight delivery to the lien claimant at the address noted on the face of the lien. Service shall be deemed complete upon mailing. The lien shall be extinguished by law 90 days after the filing of the notice of contest of lien if no notice of commencement of lien action is filed in that time period. No release or voiding of such liens shall be required. This subsection shall not be construed to extend the time in which a lien action must begin.”
  7. Plaintiff’s deadline for filing a notice of commencement of lien action was in December 2021.
  8. Plaintiff did not file a notice of commencement of lien action within 90 days after Lorenzo filed a notice of contest of lien.
  9. Plaintiff’s lien should be extinguished in accordance with GA Code § 44-14-368.
  10. Plaintiff is not entitled to the relief requested because it has no evidence to support its claim.
  11. This Motion must be construed to favor Defendant and all doubts in this Motion must be resolved in favor of Defendant.

REASONS WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests this Honorable Court to GRANT this Motion and DISMISS Plaintiff’s Statement of Claim with prejudice.

Dated this ____ day of April, 2022.

Respectfully Submitted,

___________________________________

Lorenzo Kilgore,

Defendant in pro per

VERIFICATION

I, Lorenzo Kilgore, being duly sworn depose and say that I have read the foregoing Motion to Dismiss and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this ___ day of April, 2022.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

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