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In 2008, my friend and business partner ran into financial

difficulties. He and his wife...
In 2008, my friend and business partner ran into financial difficulties. He and his wife were having trouble making payments on their house and other bills. He started falling behind in sending me the monthly payments that he was obligated by contract to pay me. He said he and his wife were planning to sell their house and that he would pay me back after they sold it. I told him it would be ok to fall behind as long as he paid me back after selling the house. They sold the house in July 2012 (for $900,000), but have not paid me anything. In fact, my biz partner has continued to borrow more money from me by holding back my monthly payments, even though I've asked him repeatedly to stop borrowing more money and to pay me back from the past as well. He hasn't sent me all the financial records and we also have some disputes over expenses, so I don't know the full amount he owes. I estimate it at $50,000 to $70,000. I suggested to him that we go into arbitration, but he has rejected the idea so far. I think I've got no choice now but to file a lawsuit. I realize that hiring a lawyer for the lawsuit could be costly and I'm not sure I can collect anything in the event that I do win, so I'm prepared to represent myself pro se. Since he borrowed the money on a personal basis to pay personal bills, I plan to file the suit against him personally. And since he and his wife hold assets in common and since she benefited from the money borrowed from me, I plan to also name her as a defendant in the same suit. That way he can't avoid payment by putting his assets in her name. I also plan to name his corporation as a defendant in the suit. My question: Is my approach correct or is there a better option?
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Answered in 40 minutes by:
10/11/2013
John
John, Attorney
Category: Business Law
Satisfied Customers: 5,877
Experience: Licensed and practicing attorney helping businesses achieve their legal and practical goals.
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Hi, My name is XXXXX XXXXX I’m happy to assist you with your question today.

I agree with nearly everything you've written in your plan of attack - i.e., filing the suit against him and his wife personally in addition to the corporation. One issue you may have though is I notice your question states you live in Iowa, but you state he is in North Carolina. If that is the case, you'll have to file the lawsuit in in North Carolina (jurisdiction is in defendant's location), unless you have some agreement in your agreement(s) that states any suit will be brought in Iowa. And even then, you'd have to have the judgment transferred to NC to collect whatever assets he has there. I'd have to believe it's going to be practically difficult for you to maintain a court case in NC - there are pretrial hearings, motions, etc. that you'd have to attend. So, it may be in your best interest to retain a NC attorney on an hourly or contingent basis. If the loan documents are clear that you are owed money then it shouldn't take too many hours of an attorney's time. Or if you wish you could retain an attorney contingent - i.e., you pay nothing unless some money is collected, in which case you pay the attorney around a third to forty percent of what is collected. I'd suspect also if this guy is broke he is not going to get an attorney, thus it should be a pretty fast case for you in any event. These are the few issues I'd suspect you may have...it may be easier and cheaper for you to simply retain a NC attorney to handle this, rather than the time, travel expenses, and aggravation of attempting to do this yourself.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

John
John, Attorney
Category: Business Law
Satisfied Customers: 5,877
Experience: Licensed and practicing attorney helping businesses achieve their legal and practical goals.
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Customer reply replied 4 years ago

Thank you for that information. Hiring an attorney would probably not work out for me since there is a good chance that I not be able to collect anything in the end. My immediate concern is that he is not sending me my monthly payments even though we have a contract clearly obligating him to do so. I'm losing out on money with each month that goes by. Can I get some sort of injunction or legal order (without having to sue) that requires him to send the payments to me each month?

Hi, thanks for the reply.

There is unfortunately no way to enforce collection absent starting a lawsuit - you'd have to file a lawsuit to get an injunction or any type of legal order. Perhaps consider retaining an attorney contingent. For this amount of money, I'd have to believe you could find one. And if it ends up you collect nothing, then you don't have to worry about paying the attorney; they only collect if you do.
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