Proving a loan was made

[Crockpot]

This post isn't related to custody, but I'd like some opinions.  As posted earlier, my DH is trying to collect about $1000 from his ex for a loan after they were divorced.  She used the money to buy a trailer for her and the kids to live in.  He was also paying child support.  

He has a letter from when the loan was made (about 4 years ago) stating what the money is for and what the payment plan was.  His ex never signed the letter but she saw it.  He also wrote "loan for trailer" in the memo portion of the check.  

He plans on filing in small claims court and made one last attempt to collect.  She is now claiming she never got a loan from him.  He sent her a copy of the letter and she said she's never seen it before. She doesn't know he has a copy of the cashed check with the note on it.  

Is the note on the check enough to prove he made the loan to her?  Any opinions?

[MixedBag]

what the statute of limitations in terms of time that he must file in order to collect on an unpaid loan?

between the note and cashed check as long as the memo line supports that it was a loan, I think that memo line on the check will save dad's hide this time.

But did he wait too long to try and get his money back?

[Crockpot]

I think the statute in our state is six years.  I could be wrong, but whatever it is, I know we're within the limit.  

She kept promising to pay with her next tax return.  It never happened (obviously).  Then she was fired a few times and move a few times.  She finally has a steady job and address to contact her at.  And I've been on him to do it.

I know some might say choose your battles, but I'm tired of choosing my actions based on how BM will react.  

Thanks!  

[FatherTime]

Could this be proven in a child support hearing of some sort?  The Child Support hearings vary by state.

You could show the timeline and use it to reduce you CS by that amount. There's more than one way to skin a cat.

You could use that letter and a copy of the check.  The money was used for housing of the children.
Just a thought.

FatherTime

[Crockpot]

Court date set for 8/25.  

I got another perspective, wondering if anyone has a comment.  An attorney/friend said the judge could look at the loan as if it's part of dad's obligation to help kids have a place to live.  And that dad is just as responsible for finding kids a place to live.  I say that's what child support is for (he was paying it at the time of the loan).

In reality the loan WAS made because of the kids needing a place to live, but it wasn't a charitable contribution.  Dad expected his money back.  

[Kitty C.]

If a judge were to make a ruling like that, it could be taken that it's ALWAYS the dad's obligation to help the kids to have a place to live.  That makes for a very unsettling precedence.  Stand your ground...yes, part of the CS is for housing, along with food and clothing, the necessities.

Did she sign anything saying she would pay it back?  Because if she did, that makes it a binding contract.  And if she can afford an atty. to get her out of this one, what did she need the money for in the first place?

[Crockpot]

I agree with your thoughts.  But I guess we won't know until we know.  

She did not sign anything.  DH wrote up an agreement/payment plan but she didn't sign it.  But it's dated 2004, when the loan was made.  She saw it but she could lie and say she didn't.  The check is our biggest proof.  The memo line says 'loan for trailer.'

If she gets out of this I'm going to be peeved!

[Crockpot]

DH had his court date today.  We won't have the judgement for a while but it seemed to go well.  He presented his case very matter of factly.  Judge question BM asking her if she realized it was a loan.  She lied and said she didn't see the note in the memo portion of the check.  The judge asked her if she was getting CS at the time.  She said yes.  The judge then asked if she thought DH was giving her the money out of the goodness of his heart (yes, it was in a sarcastic voice).

I was proud of DH.  He did well.  :)

Hoping for the best.

[Kitty C.]

Sounds like the judge saw right through her!  At least she didn't lie about getting CS.....at least she realized that that can be verified very easily.

Most would say trying to get that money back is like getting blood from a turnip.  That may be so, but if she's requred to pay it all back, it will hang over her head until she has it ALL paid back.  Confiscating tax refunds is the surest way to get it, so if the judge rules in your DH's favor, make sure that is included in the final order...........of course, it's a very good possibility the judge will automatically include that, as it's a fairly common way of satisfying the debt.

Let us know what the judgement is!

[Crockpot]

I've been putting off my update because I'm so mad.  DH lost his case.  The jugement came two days after the court date.  First, the judge dated his order 3 days before the court date!  His judment said DH did not spell out the repayment process (which he did, his ex never signed it, and she lied and said she never saw it).  Judge also said the loan was made in 2004 and DH didn't try to collect until 2008.  Again, not true.  Every year since 2004 is ex has said she'd pay him back with her tax refund.  Then she's spend it on crap.  And what happened to the statue of limitations?  It's six years in this state.  His ex lied up and down in the court room and got away with it.  She's a great moral example for her daughters.  

I confronted her on the way out of the courthouse after she made a comment to me telling us good luck trying to collect.  I told her I can't believe she lied to the judge about the loan.  And that she knew damn well it was a loan etc.  I used a bit more profanity that that, I think she got the point.  I don't confront her unless she approaches me first.  It felt pretty good. :)