So to cut a long story short I've received a solicitors letter threatening a court summons from my father over money he gave me 6 years ago to start a business. We've since fallen out completely (not worth going into the blame game on here).
He has now changed his mind about this gift and has told a local solicitors firm it was a loan and he wants it repaid in full, who have started sending threatening letters etc. He obviously has nothing in writing other than proof that he paid the amount into my bank account, so it's entirely his verbal assurance to anyone that it was a loan rather than a gift. He gifted my brother a similar amount at a similar time as a deposit for his house to be fair to both siblings and as he is on good terms with my brother doesn't ever want it back (I have no proof of this but it's an assumed fact in the family).
It's all rather worrying as I can't just ignore him any more as I want to apply for a (first time) mortgage over the next few months.
Can someone give you money then just claim 6 years it was actually a loan rather than a gift and legally demand payment?
Sage singletrack advice sought before I head to 'better call Saul' OF Exeter...
We've since fallen out completely (not worth going into the blame game on here).
Come on, what did you do?
I reckon they'd need something in writing to say it was a loan, and that you'd agreed to pay it back. He's just trying to scare you I guess, trying it on.
It's a little complicated but I made a several thousand £ claim from the business landlord for improvements to the staff bathroom that he helped me refurbish. He thought I had offered to pay him for his help. I hadn't. If I wanted to pay someone I would have had a professional in to do the work, not do it myself over xmas week. My mother (who has done the weekly books/accounts for 6 years unpaid...) can confirm that I never offered anyone payment for anything, this time or ever. He sent in my brother to 'strong arm' me in my place of work during the day in front of staff. As a result I cut off contact with both.
Petty, I know, but show me a family dispute that isn't...
6 years is an important figure, because the recovery of debts is statute barred if the loan was made over 6 years ago and the lender has made no attempt to recover.
This factsheet might help. http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=25_liability_for_debts_and_the_limitation_act
Of course for it to be enforceable in the first place he would have to prove to a court that it was always intended as a loan and not a gift, his actions in gifting a similar amount to your brother at a similar time would help your case if it ever got that far.
The problem with many (probably the majority) family transactions is that they are not properly documented and as a consequence it is almost impossible to prove either way.
Sadly I think you will need to engage a solicitor to rebut the claim on your behalf. It will cost a few quid but will hopefully make the problem go away.
If you have the money just pay him and move on if you don't have the money then that's that. It will just be an ongoing nagging problem otherwise.
Can you afford to repay him. If so you should. That way you are no longer in his debt, either real or perceived. A clean slate so to speak
I agree with NJA
1 it was a gift so no takee backee
2 debt limitation period is 6 years so as long as it was made over 6 years ago and you have not made any payment then too late .
I can't afford to pay him.
Also, he hasn't asked my brother to sell his house and repay him his gift, sorry 'loan', and as the source of this money he has been lending is the equity from the sale of the marital home when he divorced my mother (she received nothing as he had local dodgy estate agents undervalue the house) I don't feel morally obliged really either.
Looking at dates.. It was about 5 years 7 months ago.
6 years is an important figure, because the recovery of debts is statute barred if the loan was made over 6 years ago and the lender has made no attempt to recover.
Correct. Worth knowing though is that if you admit the debt, the timer resets. Any correspondence should be along the lines of "I do not acknowledge the presence of this debt. Please provide evidence of the loan agreement. Note that it is illegal to pursue a debt when liability is in doubt. Further contact without proof will be considered harassment and will be dealt with accordingly."
Either that or "sue me, dicksplash." It'll get laughed out of court.
Some was earlier, around 5 years 9 months ago.
Can someone give you money then just claim 6 years it was actually a loan rather than a gift and legally demand payment?
If it's over 6 years then it may be subject to limitation.
If not then the result will hinge on evidence from those present as to what was said by both parties as to whether it was a gift or a loan. Dragging it to court will cost a fortune and attempts to involve other family members as witnesses will create fall-out - best to tell him to stick it and if that doesn't work negotiate a settlement unless family are on your side.
Just read the thread - and am repeating!
Cougar - Moderator
Either that or "sue me, dicksplash." It'll get laughed out of court.
Eh? How?
best to tell him to stick it [s]and if that doesn't work negotiate a settlement unless family are on your side.[/s]
If you can pay it then do so IMO
Its all about the bigger picture and the long game
My mother is happy to stand up in court in confirm that no agreement to repay the money was ever made, and that he said explicitly it was a gift.
Of course, my brother will confirm the exact opposite...
There is no one else in the family.
So you have 2 witnesses for each side. 50:50 as to who wins then (apart from the lawyers).
My guess is the best thing to do, if your mum can't persuade him to see sense, is to get solicitors to send a strong rebuttal and hope it goes away.
Eh? How?
Because the father has no evidence that the loan exists. There's the obvious transfer of money, but all that shows is he gave the money. To legally recover a loan he'll need evidence of the loan; to wit, a loan agreement. There isn't one. Thanks for playing, have a nice day.
I'm amazed that the solicitor took on the case; all I can assume is that it's intended to scare the OP into going "oh shit, it's gone legal" and roll over. Wouldn't get a red cent from me. I'd be half tempted just to ignore him TBH.
Perhaps talking with your father is the better way to solve this disagreement?
But if he issues a summons, then I ignore it, surely he will be able to 'win' and I will have a summons on my credit rating just before a mortgage application?
Don't ignore it, deny it and if you have to, go to court and deny it, if you ignore it and it goes to court and you don't contest it or turn up, they'll find it against you by default and issue a ccj..
Denydenydeny...
Hoist-he's a very determined, elderly, isolated alcoholic with no friends, hobbies or social life. He won't listen to any reason, it's his way or the high way. No chance of reconciliation, we're very much past that now.
"If" is the keyword there. There's a world of difference between a solicitor's letter in red pen and actually being taken to court.
Deny the debt, tell him to prove it or shove it, and if he continues to illegally attempt to recover monies for a disputed debt then you'll take action against him for harassment.
Cougar - Moderator
Eh? How?
Because the father has no evidence that the loan exists. There's the obvious transfer of money, but all that shows is he gave the money. To legally recover a loan he'll need evidence of the loan; to wit, a loan agreement. There isn't one. Thanks for playing, have a nice day.I'm amazed that the solicitor took on the case; all I can assume is that it's intended to scare the OP into going "oh shit, it's gone legal" and roll over. Wouldn't get a red cent from me. I'd be half tempted just to ignore him TBH.
I'm amazed you think all this is fact.
You don't need a written agreement to create a loan, and as the OP has said father seems prepared to give evidence (or at least should be in order to go to court) that there was a loan, along with brother.
OP do not ignore a summons, but I wonder if it will get that far.
he's a very determined, elderly, isolated alcoholic
He's probably forgotten what he agreed, then; diminished mental capacity. (-:
You don't need a written agreement to create a loan,
Perhaps not, but you do need written proof in order to try and recover it.
I lent you £200 cash five years ago. Pay up.
So if I deny the debt and we end up in court, what the burden of proof? Assuming my mother and I claim it was a gift and they both claim it was a loan, what gives? Looking honest in court? Witness performance? Or does he have the burden of proof?
So, Mr Thepublican Snr, you verbally arranged a loan with your son, is that correct?
Yes, m'lud.
And what were the repayment arrangements for this loan?
... ah.
you are going to get 'proper' legal advice aren't you? CAB for a start.....
Christmas dinner must be a blast...
Yes Sinatra, definitely going to CAB and then local family law solicitor here in Exeter.
Really annoyed that he can just make this up and the result, even if I rebut the claim successfully, is a large legal bill...
Jamie-Actually given the that the previous xmas he drank all the (very expensive irreplaceable) wine that my girlfriend brought from a wine tasting in Italy the summer before and was reserved for everyone to enjoy over xmas dinner, while we were out walking on xmas day lunch, it was actually a lot nicer this year spending it with friends. 🙂
Armchair lawyers indeed (save for al) 🙂
These threads are pointless, you either want to know where you stand legally or you don't. If you do, go and speak to a lawyer. Otherwise continue to read some of the guesswork on here.
Any decent lawyer will give you an indication of where you stand (and how much something like this will/could cost) without charging anything, or as some have suggested, use the CAB as a starting point. If the dispute looks like it might have legs, think carefully before seeking resolution through the courts...
If you can pay it then do so IMOIts all about the bigger picture and the long game
WTF does this mean?
His father gave him some money and now claims it is a gift and now demands it back
WHat is the bigger picture here?
I doubt a reconciliation is on the cards here whoever wins
I defer to al here as IANAL but surely you need some actual proof of a loan and surely anyone would get something in writing and not wait 6 years for payment
Does asking for it back constitute trying and therefore reset the 6 years or doe she have to go to court to do this?
Really annoyed that he can just make this up and the result, even if I rebut the claim successfully, is a large legal bill...
...That, [s]if[/s] when you win, he will have to pay.
Really annoyed that he can just make this up and the result, even if I rebut the claim successfully, is a large legal bill...
Not necessarily. I had a dispute with an ex-girlfriend over the sale of our house many years ago, and IIRC it cost me about £300 to send a solicitor's letter rebutting her claims. She then accepted a sum very similar to what I had offered in the first place.
one does wonder whether you need to spend £300 to get a solicitor to write a properly legalese letter or could you just pay the receptionist a packet of biscuits to type "Sue me dicksplash" on headed paper....?it cost me about £300 to send a solicitor's letter rebutting her claims. She then accepted a sum very similar to what I had offered in the first place.
one does wonder whether you need to sped £300 to get a solicitor to write a properly legalese letter or could you just pay the receptionist a packet of biscuits to type "Sue me dicksplash" on headed paper....?
😆
Best. Legal Advice. Evah.
you just pay the receptionist a packet of biscuits to type "Sue me dicksplash" on headed paper....?
To be honest, I was really suggesting that this should be a verbal agreement.
Pay him in full and include a letter confirming this and that you saw it as a gift and at no point was it told to you that it was a loan- infact the opposite.
Add a final line, do not ever contact me again. CC both brother and Mother.
Lifes too short. Get him rid and make it clear. I did this and reiterated that there was nothing more to do with him.
...the previous xmas he drank all the (very expensive irreplaceable) wine
That sounds like 6K worth of wine to me...
Best of luck - sounds absolutely shite. I'm guessing there's no talking to the brother either? If dad's completely unapproachable, is it worth a go?
Hora-I don't have the money, it would bankrupt me. And if I go bankrupt 14 people lose their jobs...
Pay him in full and include a letter confirming this and that you saw it as a gift and at no point was it told to you that it was a loan- infact the opposite.Add a final line, do not ever contact me again. CC both brother and Mother.
Lifes too short. Get him rid and make it clear. I did this and reiterated that there was nothing more to do with him.
Are you on crack Hora?
Why bother paying back a gift !!
He has no money to do so even if he wanted to as he has said numerous times
Dead dad, Here have that money that you gave me and have no legal claim for
Ps dont contact me again
Really Hora - is this actual advice?
Let's give this a figure for clarity then. It was a £34k gift. I don't think I should repay a £34k gift that, even if I wanted to, on the whim of an upset parent.
If I had the money or could take a loan out- yes I would do this. Same with if a family member 'gave' a car to you and then insisted it wasn't a gift but now a loaned car. HERES YOUR CAR BACK. Sadly in the OP's case this isn't possible 🙁
The only thing I can say is focus on the term verbal contract and investigate/google. A business verbal contract is enforceable- is a family one though? Surely the burden of proof is on the 'lendee'?
Yes I am on crack, I run my business from a campervan with a business associate.
You could offer a 3% stake in the business? Or have I been watching to much Dragons Den?
as above write back.. no i dear of what loan you speak please send copies of agreement etc. if unable to produce please do not contact again as i'd consider it harressment.. nice hand writing no need to bother with a solicitor.. recorded delivery to solicitors office..keep a copy. enjoy..
If it was a couple of grand I would give it to him just so he would disappear. But asking for £34k back is his attempt to 1. close my business and bankrupt me 2. remove any chance of a mortgage/house for me for a long long time...
I've now got visions of Hora and Binners as some Max and Paddy duo touring the Greggs stores of the Northwest in their camper van whilst dispensing pearls of 'hora wisdom' to the credulous.
Cougar - Moderator
Perhaps not, but you do need written proof in order to try and recover it.
I lent you £200 cash five years ago. Pay up.
No you don't, but you do need evidence of payment. Dad here does.
whilst dispensing pearls of 'hora wisdom' to the credulous
Worst euphemism ever 😉
Surely, the balance of probabilities, given he also gave the other son the same amount at the same time without any documentation from either to say they were loans then it will be assumed they were loans
Al is it not just laughed out of court when a loan has no evidence beyond a payment? Surely there must be a written agreement?
A verbal loan agreement is still an enforceable agreement.
Obviously, if you're the creditor then it's harder to enforce if it's disputed, however there's almost always some evidence which can assist you. Of course, it's even harder if you're trying to lie about the status of the "debt"!
On that basis, if I was the OP, the concern I would have would be whether there was anything from the last 6 years which could be presented as evidence suggesting the money was not a gift. You may not even be aware of it at the moment.
Junkyard - lazarus
Al is it not just laughed out of court when a loan has no evidence beyond a payment? Surely there must be a written agreement?
No danger, not unusual for [s]idiots[/s] people lend/gift each other money without documenting it then fall out and it goes to court.
I'm 100% certain that there is no evidence for him to suggest it was loan. I have never written or signed anything for the money, nor texted 'thanks for the loan etc' or anything of the kind, for good reason.
I don't like the idea of a court appearance though, with us saying this and him saying that. It all sounds so open to any result.
I reckon I'd be a bit worried about the brother coming forward and saying 'Well, I knew it was only a loan, and I intend to pay it back in the future when I have enough equity in my house. I don't understand why thepublican would be claiming that it's a gift...'
I don't like the idea of a court appearance though, with us saying this and him saying that. It all sounds so open to any result.
Absolutely. Under normal circumstances, it would never get that far since one (or both) of the parties would realise the uncertainty of their position and buckle. However, family or business disputes which are based on an element of emotion are an entirely different beast and should be handled with caution. People often see red mist as opposed to sense...
I'm 100% certain that there is no evidence for [s]him[/s] [i]me[/i] to suggest it was loan. I have never written or signed anything for the money, nor texted 'thanks for the [s]loan[/s] [i]gift[/i] etc' or anything of the kind, for good reason.
Works both ways.
thepublican - Member
I'm 100% certain that there is no evidence for him to suggest it was loan. I have never written or signed anything for the money, nor texted 'thanks for the loan etc' or anything of the kind, for good reason.
Good stuff but remember someone standing up saying "in June 2008 we had a chat and I agreed to lend him the money" or "it was only ever a gift" IS evidence - as is anyone saying the opposite, or behaviour that is suggests the payment was a gift (no repayments, no requests for repayment) etc.
Thanks Al, hopefully a 'loan' that hasn't been repaid in any way or acknowledged by anyone for 5 years before todays summons should look to a judge like a gift.
This jeremy kyle style dispute must be a wet dream to solicitors billings departments.
A decent lawyer shouldn't milk it - but they charge by the 6 minute block and going to court could well cost the £6K, albeit the winning party will get their costs back (I think, I was a Scots lawyer where it's only a contribution).
Always avoid court if you can.
Works both ways.
Semper necessitas probandi incumbit ei qui agit.
What cynic-al and peterfile have said, several times over. Speak to a lawyer. Get good advice early. And you don;t want a family lawyer - you need someone who understands commercial disputes. The "family" part of this is misleading.
Two things that leap to mind:
1. If you haven't breached the terms of the "loan", then suing you to repay it can't work. If I borrow £34k off the bank with a repayment term of 10 years, they can't decide at year 6 to sue me to repay the balance. I haven't done anything wrong - the court wouldn't wear that sort of nonsense.
2. If this is the first contact you've had about the money, then I suspect his lawyers know full well they can't just go ahead an issue proceedings without getting a kicking from the court for failing to follow the Civil Procedure Rules.
If it did end up in court, then it wouldn't look very believable that just after the father came into a large amount of money money, both his sons just happened to need to "borrow" large amounts of money off him.
And by pure chance they both needed to "borrow" exactly the same amount.
And both at the same time.
That looks like a gift to anyone with any sense.
He's got no chance.
OP - don't bother with armchair lawyers. Just go and consult a real one. There is a lot of very bad (and inaccurate) 'legal' advice being given to you in this thread.
Whereabouts are you? I might be able to help or recommend you someone who can.
I'm in Exeter stimpy, thanks.
thepublican YGM to the address in your profile.