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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10237
Experience:  Civil litigation attorney for individuals and businesses.
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Dear Sir: Background: Money is owed to me by an individual,

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Dear Sir:
Background: Money is owed to me by an individual, a personal friend, who signed a personal loan agreement for a certain loan my wife and I made to him in April of 2012. After delequently re-paying a portion of it, he has ceased making further payments, despite my frequent requests and his equally frequent promises to pay. The loan should have been re-paid, with interest, by the end of July 2012. We allowed him to make installments payments rather than paying it off in a lump sum as required by the agreement. He last made payment to us in March 2013. There is a substantial balance due. In addition, and prior to this loan, we made a personal Capital Investment to him, which he signed personally and corporately, in an investment in a certain site development project. That project has been delayed due to problems with land procurement issues. In fact, our investment capital has been used to maintain certain options with one bank regarding one parcel of land, while waiting for another parcel, currently in foreclosure, to be made available to us. That investment has not been re-paid, as agreed, in spite of previous demands.
My Question: Should I make one final request for payment in full before I turn this matter over to an Attorney? And what course of action would you advise?
Thank you.
Bernard

William B. Esq. :

Dear Customer, thank you for choosing Just Answer, I would like to assist you with your legal question today.

William B. Esq. :

I do need to advise you that I cannot directly respond to your question as I cannot give you specific legal advice or instruction (your question asks for strategic advice), but I can give you my general experience regarding these types of situations.

Customer:

Thank you. That would be fine.

William B. Esq. :

In these situations the end result is entirely dependent on the personality of the debtor (and their available assets). In making a demand for payment, once the initial written demand has failed, there are three options that are available (at least 3 that I have found to be effective).

William B. Esq. :

The most important issue is to ensure that you do not miss the statute of limitations. If the breach of written contract occurred at the very earliest in July of 2012 (the date payment was due), and at the latest March 2013 (the date of the last installment payment), you are well within the 5 year statute of limitations for Florida.

William B. Esq. :

First: you can send another letter. This is inexpensive, and requires minimal time commitment. You can do this without any significant effort and may result in payment. Many such demands include a threat of litigation (sometimes with a deadline sometimes without).

William B. Esq. :

Second: you can send a "pre-litigation demand letter". This is a letter which gives a firm deadline for payment (say July 1, 2013), if payment is not received you will file a lawsuit. I have found that these are most effective if a complaint is attached to the letter, showing that the threat is not an empty one and that the complaint will be filed absent payment. Either you can send the letter or you can hire an attorney to do so. This takes more effort and time, or you can hire an attorney which will take about two hours of legal fees. This is much more effective if the debtor has funds to repay the debt.

William B. Esq. :

Third: you can file a lawsuit. You can do this with or without an attorney. If the amount is over $5,000.00, you must file in general civil court (which often means an attorney is very helpful given the more complex civil rules of procedure). You can do this with or without the prior demand letters. Assuming you win the civil case (which can be very quick if the debtor defaults on the case, or can take a year or more if they contest the case), you will be entitled to use the judicial collection tools to get your money, including wage garnishment, bank levies, personal property levies, and liens on real property. If the promisory notes include an attorney's fees clause, you can collect your attorney's fees from the civil case as well.

William B. Esq. :

You can use any of these tools individually or collectively. If you believe that this debtor will respond to a "stern" warning, perhaps by resigning a new contract with payment terms that he can sustain if payment under the current terms is simply impractical, you can try the initial correspondence, and then escalate your response from there.

Customer:

Dear Sir,

Customer:

Thank you for your sound and concise "opinions." I will move forward as you have offerred. I appreciated your time and candid response. I will move forward with firmness and good legal guidance. Thank you, Bernard

William B. Esq. :

You are very welcome Bernard. I do wish you the very best of luck with this matter. Best regards. Bill.

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