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Ask Irwin Law Your Own Question
Irwin Law
Irwin Law, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 7415
Experience:  Attorney 40 plus years private practice. Real Estate, Wills, Trusts, Injury claims. Still active.
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My last two questions were about a small claims case. In

Customer Question

My last two questions were about a small claims case. In this case one person loaned another person money to purchase a car. The person loaning the money writes an agreement stating how much was loaned, what the loan was for, and the method of which the
money would be paid back, along with the date the debt would be paid in full if the method of repaying the debt is followed. The person that loaned the money did not require to be listed as lien holder on the title. They did require that they hold the title
until paid, although they now deny ever having the title. In the written agreement the person loaning the money states that payments of $120 be paid every month for 37 months. Starting payment month of Sept 2010. Date agreement was made Aug 10th 2010. So if
all goes as agreed the debt would be paid back in 2013. In Aug 2015 the person who loaned the money files in small claims for the original amount of the loan. There evidence filed in the case is a copy of the agreement, copy of a check payable to the defendant
at the time the agreement was made, and a deposit slip showing a deposit for the same amount as the defendant borrowed dated 6 days after the loan agreement was signed. The defendant entered as evidence a copy of the title of the car and registration showing
them as owner with no liens against the car. The defendant has no receipts to show the loan was paid, the fact the person gave them the title back to the car was their receipt, which now the person that loaned the money denies ever having the title. It now
being 2 yrs after the date the debt would have been paid back if the monthly payments had been made, and the fact they do not even have this vehicle any longer, who would of thought they needed to keep any of those records. How would you defend against this?
Submitted: 2 years ago.
Category: Consumer Protection Law
Expert:  Irwin Law replied 2 years ago.

Who am I representing? The borrower, or the lender?

Customer: replied 2 years ago.
The borrower.
Expert:  Irwin Law replied 2 years ago.

My defense would be that the parties intended for possession of the title to be the basis of proving payment was made. Therefore, by the defendant holding the actual title, it is tantamount to an admission by the Lender that he has been paid . In addition, the agreement called for monthly payments starting in September 2010. Lender claims no payments were made. And inference may be drawn from the failure of lender to attempt collection for five years. I'm saying that those would be my defenses. I'm not saying that they would win. There is no question that a loan was made, and the borrower has no actual proof of repayment, i.e. receipts or cancelled checks. More importantly, if I'm reading this correctly, the borrower is not claim to have actually made cash payments to the lender over the years. he is simply relying upon possession of the title itself to prove that he paid for the car . Even if he did claim to have made cash payments, Small Claims Court judges are notorious for not believing verbal representation of payment, without the receipts to back it up. I would rate the borrower's chances of winning at less than 25%.

Customer: replied 2 years ago.
This is how I see it. As I stated the agreement of the loan was dated Aug 4th 2010, in the agreement it states the Plaintiff loaned the Defendant $4400 cash. And payments of $120 cash be paid every month for 37 months.
The plaintiff enters into evidence a check made out to the Defendant. however nothing was entered into evidence the check was ever endorsed or cashed. Only a copy of the front of the check was entered.second the plaintiff entered as evidence a deposit slip showing a $4400 cash deposit into the lenders bank account dated Aug 10th 2010. 6 days after the agreement was made.And the copy of the title showing the title was issued on Aug 10th 2010, same day as the cash deposit of $4400 into the plaintiffs account.When money is loaned for the purchase of a vehicle, it is standard practice that the person who loaned the money be listed as lien holder until the loan is paid in full. The title shows there was no lien placed on the vehicle when the title was issued on Aug 10th 2010.The deposit of the $4400 on Aug 10th would support the fact that not once in 5 years from the date of the agreement did the plaintiff ever send a demand letter for not making one of the agreed monthly payments. And also support the fact on the same day as of the deposit of that $4400, the title was issued showing no liens on the vehicle, and the reason the defendant has possession of the title.This evidence would not be enough to clearly show the debt wasn't paid for the court to rule in the plaintiff's favor. At least I don't think it does. Any thoughts on that?
Customer: replied 2 years ago.
It is my understanding that it is the plaintiff's burden to prove the Defendant did in fact receive the money, and that the money has not been paid back.A copy of the front of a check, in my book would not be enough to prove the defendant actually received the money, i feel to prove the defendant actually received the money the plaintiff would need to prove the check was cashed and removed from the plaintiffs checking account. And in proving that the money was never paid back, I wouldn't accept a deposit slip from the plaintiff as evidence the money was not paid back. To me a deposit into the plaintiffs checking account for the exact amount of the loan would prove more that the plaintiff was in fact paid back the money. Not prove it is still owed. But that is me. And I am not an attorney. And attorneys do not think like normal people do.
Customer: replied 2 years ago.
Also in your answer you state you feel there is no question the loan was made. How do you come to find this by the evidence presented. I will agree that there is a check with the defendants name on it with a dollar amount also on the check. However to me that does not prove the check was ever presented to a bank and cash received for the check along with the money being removed from the plaintiffs account. I have boxes of blank checks. If all I have to do is write someones name on them and enter a dollar amount on the check. If that is all it takes to prove in court that the person who's name on the check owes me that money, I should be pretty well off by the end of next month. I will start filling in names on all these blank checks. Cause it wouldn't even matter if the checking account even existed since the checks never even need to be presented to a bank to be cashed. If all I need is a copy of the front of the check.
Expert:  Irwin Law replied 2 years ago.

As I said in my Answer, the case could go either way. Can you deny under oath that you received $4,400 from the plaintiff in 2010? Also, can you explain why you signed the agreement if you did not receive the money? The Plaintiff or the judge will ask you that and that may be the Achilles Heel of your defense. A positive rating, which is free to you, would be most appreciated.

Customer: replied 2 years ago.
Not once was it denied that the money was received, fact of the matter is that the loan was satisfied. Remember the loaner is the grandmother to the defendants 3 children. So there was a couple birthdays, Christmas, or for whatever else. Which the two got along just fine until the loaners son shot her in the back of the head. Of coarse she is divorcing him. Mama-in-law not happy. Well there is no record of mother taking $500 here of loan for Christmas, $250 here for B-day. This is why it's 2 yrs after the agreed payoff date that she decides to sue her. The evidence she submitted appears it was loaned on the 4th and paid back in full on the 10th. She filed a debt for $4400 and a credit for $4400 into evidence with the agreement. Her evidence shows an agreement and a check for $4400 on the 4th. Then six days later the 10th, a deposit of $4400 cash money going back into her checking account. It was paid back. Maybe not that way, but it was agreed by both parties the debt was settled 3 yrs ago. It was family, ones word when it comers to family should be enough. So I see it as the Plaintiff is the out right liar here. Maybe the money wasn't paid back in one lump sum, however it was settled. So you do what you need to do. And would you disagree?
Expert:  Irwin Law replied 2 years ago.

I don't know what to say to this latest set of facts. I will opt out and open the question for another person to Answer you.

Customer: replied 2 years ago.
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