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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11710
Experience:  Licensed Texas General Practice Attorney
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Weve loved Len since he first started on KGO and miss him

Customer Question

We've loved Len since he first started on KGO and miss him keenly. Here's my problem: In 2010 we loaned a friend $10,000 toward starting his new winery, with a signed contract (no lawyer) starting quarterly payments at 7% interest. We live in Napa County, he's in Mendocino and we see him socially several times a year, considering each other good friends. All was well until a year ago, when the September payment was three weeks late. It did, however, include the stipulated $30 late fee. The December 1, 2012 and March 1, 2013 payments were several weeks late, paid only after I emailed asking where they were, and with no late fee included. Excuses both times were "new accountant," "I had no idea," etc. etc. with our "friend" saying in March that "I told him (accountant) to pay you guys first."
It's June 21 and no June payment has been received. We actually drove to Mendocino over the weekend, he bought us lunch and when we asked for the payment, he again gave the same excuses, even pleading ignorance of when we were to be paid ("are you getting quarterly payments?") and then saying "I'll write you a check right now." Except that, after going to his vehicle, he "had no checks with him."
He went so far as to say, "You're the only ones this is happening to. I'm sending out an email to the new COO and the entire company today and will bcc you." Of course, there was no email (I wrote two days ago and said I'd never received it and still have heard nothing) and no payment thus far. I figure he still owes us about $3200 and want this to end.
I want to exercise the statement in the contract that says:" If any installment payment due under this note is not received by lender with the grace period, the note will be in default and the entire amount of unpaid principal will become immediately due and payable at the option of the lender without prior notice of default to borrower."
We've always been overly nice about it -- my husband especially, since he doesn't want to end the friendship -- but I feel he is no friend whatsoever and is completely taking advantage of us. Business is business.
We're both retired and live extremely modestly and I wonder what it would cost to contact an attorney who would send a demand letter written on official lawyer letterhead.
Thank you so much.
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. Can you tell me what the length of the grace period is?

Customer:

8 days

Customer:

I have copies of every check received, plus emails inquiring as to why they were late.

ScottyMacEsq :

Again, I am sorry to hear about your situation. First of all, I want you to know that we cannot send letters, as that would constitute legal representation. A demand letter can typically be obtained from an attorney's office for about $100-$200 (depending on the attorney), and it would be less from a younger solo practitioner, so I would look for that.

ScottyMacEsq :

Secondly, before you send a demand letter from an attorney, you can send one yourself.

ScottyMacEsq :

Send a demand letter demanding payment within 30 days, otherwise you will pursue legal action against him, seeking that amount plus any additional damages as allowed by law. Send this letter certified, return receipt requested, as well as a copy sent regular mail. Keep a copy for yourself, as well as the return receipt number so that you can show the court that you made a demand for the unpaid amount.

ScottyMacEsq :

You can include a copy of the contract showing the acceleration clause (where everything is due now)

ScottyMacEsq :

Finally, you don't have to go through an attorney to sue this individual. You can sue in small claims court. Do a search on the web for your county and "small claims court." You should find either a website or phone number to the small claims clerk. Ask them what you need to do to bring such a lawsuit. The small claims clerk will give you guidance on how to file this suit and how to get the other party served with notice. You will receive a hearing date, at which you should present your evidence and ask for a judgment for the amount that you should be paid.

ScottyMacEsq :

Since the amount is under $10,000, then this is something that you can pursue in small claims court, without the need and expense of getting an attorney involved.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Is that what you'd recommend?

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11710
Experience: Licensed Texas General Practice Attorney
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