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legalgems
legalgems, Lawyer
Category: Legal
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Experience:  Just Answer consultant at Self employed
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We loaned money to my son and his wife. we have all of the

Customer Question

we loaned money to my son and his wife. we have all of the paper work of the loan and money paid back, but no receipts. Q: what is it we need to do to win in small claims court. they owe us over $12,000.
Submitted: 11 months ago.
Category: Legal
Expert:  legalgems replied 11 months ago.
A portion of the loan was paid back - via check?
Expert:  legalgems replied 11 months ago.
And if so, what is the current balance owing?
Customer: replied 11 months ago.
No, they paid us back with cash each time. At the time we did not feel it was necessary to give any receipts, They have only paid back $1000.00 from the original balance of $13,000.00.
Customer: replied 11 months ago.
we had a verbal agreement, is this good enough for a court case?
Expert:  legalgems replied 11 months ago.
Thank you;so in IL the small claims court only has jurisdiction to $10,000 http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentid=5521# ***** this means is that the plaintiff can waive any amount over the $10,000 limit, or they can bring suit in general civil court. Generally it is best to first send a demand letter, generally giving 10 days to pay (that's the norm but is not statutorily required) sent certified mail, return receipt requested. If that fails, then one can proceed with litigation. Verbal agreements are still agreements- a contract is a contract. Of course the court will require some kind of proof- ie cancelled check, allegations of a recent purchase, etc. The court will then, if they find for the plaintiff, issue a judgment - and the plaintiff becomes the judgment creditor and can then collect on the judgment. Of course, a judgment is very harmful to one's credit rating, so most people will attempt, when litigation is threatened on a valid claim, to arrange a payment plan or pay off the debt - a judgment remains on one's credit report indefinitely as it can be renewed when it expires.
Expert:  legalgems replied 11 months ago.
I cannot locate an uncopyrighted demand letter that I can link you to, but you can google it and there are many out there. This can be modified to be for demand of money loaned (versus bad service/product):https://www.consumer.ftc.gov/articles/0296-sample-consumer-complaint-letter
Expert:  legalgems replied 11 months ago.
Sample small claims complaint:http://12.218.239.52/Forms/pdf_files/CCM0755.pdf
Expert:  legalgems replied 11 months ago.
Should you choose to sue in general civil, here is a link to those forms:http://www.illinoiscourts.gov/Forms/forms.asp Thank you for using Just Answer.I hope the information I provided is useful. If you need further clarification please post here and I will reply as soon as I see it; otherwise, Kindly-Rate Positively-This does Not result in additional charges to the customer and allows the site to credit me for assisting you today.Thank you and take care!No attorney client relationship is created as this is general legal information, not advice; and a personal attorney should be hired if one wishes specific legal advice for their personal situation.
Customer: replied 11 months ago.
You stated the judge might want proof like a cancelled check. We have no proof of any payback other than what I had written down with the amounts and the dates. I have a list of the creditors we paid off, the amounts and to whom and the date. All four of us were together and my son and daughter-in-law called each creditor and paid the balances off with our debit card. I have the confirmation numbers for each transaction.
Expert:  legalgems replied 11 months ago.
That is exactly the type of paper trail that will help establish payment was made on their behalf.
Expert:  legalgems replied 11 months ago.
An itemized list can be included, along with copies of invoices from the bank showing that information.
Customer: replied 11 months ago.
Is there a chance they could lie and say this was a gift that we gave them, rather than a loan? We obviously have a record of the sporadic payments, but what could happen if they said we made those dates up? Have you ever had a case that this has happened in the past?
Expert:  legalgems replied 11 months ago.
They can of course lie; but the person making the allegation has the burden of proof; normally if one is gifting property they won't keep track of it unless it is over $14,000 in which case federal tax information needs to be filed. Yes, I've seen cases where family members, spouses and friends have loans, and generally if there is proof of payment made, and no document stating it is a gift the court assumes it is a loan, unless there is a history of gifting to that group of people.
Customer: replied 11 months ago.
How do we go about getting papers to start a small claims court action? Does my son and his wife get served with paper indicating when they would have to appear in court?
Expert:  legalgems replied 11 months ago.
Yes, that is correct- the defendants (party being sued) would be served;the local court house will have the forms specific to their jurisdiction-some have them online listed here:http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentid=5521#
Customer: replied 11 months ago.
We live in cook county and they live in Will county. Where do we file the papers from?
Expert:  legalgems replied 11 months ago.
The papers would be filed in the defendant's county of residence, unless it can be proven that the breach occurred elsewhere.
Expert:  legalgems replied 11 months ago.
In which case it can then be filed in the county where the breach occurred: Here is a link to the bar association's legal referral site:http://apps.americanbar.org/legalservices/lris/directory/Should you have further questions please post here; otherwise kindly--- Rate Positively---so the site credits me for assisting you.Thank you and take care!