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Lucy, Esq.
Lucy, Esq., Attorney
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I have been served a complaint in municipal court for a debt

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I have been served a complaint in municipal court for a debt that I have been paying all along. They want my income tax return to pay the balance and I won't sign agreeing to that. The amount is for four thousand dollars on an eight thousand dollar debt. There was no written contract but they are filing breach of contract on an oral agreement that never existed.
Submitted: 1 year ago.
Category: Legal
Expert:  Lucy, Esq. replied 1 year ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

Was there every any discussion whatsoever about repayment terms or when you would give the other person the money? How long has it been since you got the money? Also, what is your reasoning for wanting the case to be heard in Small Claims Court?
Customer: replied 1 year ago.

The loan was received the end of2012 and I started making payments in Jan of this year. I have paid her four thousand dollars to date. She is claiming that I told her I would pay five hundred a month with the balance being paid with my income tax return. She offered me the money to help me out and I would have never done this under these terms. She is doing this out of spite because of a falling out we had. I have never denied owing her this money and have never tried to get out of paying her. There has never even been a five hundred dollar payment made. I paid 100.then 2900. then two 200 dollar payments and then they were asking for three hundred a month which I agreed to so there have been two of those payments totaling four thousand. I just won't agree to them taking my income tax return because I need it for taxes usually. Now they are suing for her lawyer fees also.

Expert:  Lucy, Esq. replied 1 year ago.
Thank you.

Without a written contract stating that you agree to pay lawyer's fees, they can't get her attorney's fees. That shouldn't be an issue. That does, however, present a problem, because it means that even if the amount you owed was less than $3,000, the amount they're claiming would still be higher - and that can keep you out of Small Claims Court.

A person cannot change an agreement unilaterally because of an argument. This happens a lot, but it's not legal. Both parties must agree to change a contract, and each must receive something in exchange for his promise to make the change. Otherwise, it's not enforceable. You can be held to the terms of the original agreement, but not changes that she decided to implement on her own.

With that in mind, think about what you originally agreed. Did you agree to pay $100 or $200 per month until it was paid? If so, that would not be a legally enforceable agreement. Under Ohio law, any agreement that cannot be completed within one year is only enforceable if it's in writing. Ohio Rev. Code, Section 1335.05. At $200 per month, it would take longer than one year to pay back $8,000 and that means that the agreement is not valid. That is one defense that you could raise in your response to the Complaint. Alternatively, you might be able to argue that the case is premature - you're making payments and therefore have not breached the contract. That might be a reason to ask the judge to dismiss the case against you.

If she does get a judgment against you, she's not able to take your income tax return directly. What she would be able to do is put a levy on your bank account, taking any money that is in there on a specific date - she would likely try to time that to when income tax returns are usually deposited (which tends to be on Fridays). If there is money in the account when she goes in, she'll get what's there. But she can't stop your tax refund at the source for this type of debt. She might also be able to garnish up to 25% of your post-tax earnings, if she has a judgment. That may be something to consider when attempting to negotiate with her.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Customer: replied 1 year ago.

The agreement that was stated in the beginning was that I told her I wanted to pay her as quickly as possible. There was no set amount or time but she has claimed that I agreed to five hundred a month and my income tax return for the balance. My question is isn't it her word against mine as to what terms were set since it's not in writing. Also can i get reimbursed for my lawyer fees if the court finds in my favor that this should not have been filed in the first place or will they just set the terms of repayment and I have to go by them.

Expert:  Lucy, Esq. replied 1 year ago.
The rule in the American courts is unfortunately that each party bears his own attorney's fees. Neither of you can collect attorney's fees from the other without a written contract that allows it.

As the plaintiff, she has the burden of proving the agreement that was made. The fact that you've never made $500 payments tends to support your statement that it wasn't the agreement you had. The problem is, if you admit that you owe the debt, and you didn't have an established payment plan, the judge could still order you to pay her even if he doesn't believe that you agreed to pay $500 per month.
Customer: replied 1 year ago.

Is there a form available to answer the complaint in court without getting an attorney? It's not right that i am going to be liable for my attorney fees for an unjust complaint that was filed.

Expert:  Lucy, Esq. replied 1 year ago.
You're not required to hire a lawyer to defend the allegations. The courts do not have specific forms that must be used. A person can just write a response to the Complaint and file it.

This site has some information that could help. You could also visit a law library or use a site such as www.legalzoom.com to get forms.
http://www.ohiolegalservices.org/public/legal_problem/courts-hearings/documents-and-papers-from-a-court/complaint-and-summons/qandact_view
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 21030
Experience: Lawyer
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