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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I lent my dad a large sum of money (approx 3 years ago), on

Resolved Question:

I lent my dad a large sum of money (approx 3 years ago), on the premise that he would pay me back whenever I needed it. The money was to set up a new business, running a pub. Last october, he sold the business and I have been asking for the money back, I now desperately need it. He is telling me that he can't afford to pay me, he has been investing in new businesses and will pay me over the next couple of years, as and when he can (assuming the businesses succeed!) He has also been spending the money on living without an income, moving back into his huge cotswold cottage, which I know has massive overheads and which he had been renting out. He has a large amount of equity in the property so could sell, remortgage, take out a secured loan, etc to be able to pay me back but he just doesn't want to. I wish to pursue this (possibly through moneyclaims) but would like to know where i stand legally, can I enforce him to repay his debt? I do have signed proof from him, that I lent him the money.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

How much does he owe you?

Customer:

He owes me £40,000.

Ben Jones :

were any repayment terms agreed?

Customer:

on the agreement it states: no fixed term. Loan to be repaid in full or part by agreement between the parties

Customer:

Then goes onto say that the intention is to make full repayment upon the completion of sale of his property with earlier repayments which may be possible out of business cash flow.

Customer:

The business for which it was lent, has now been sold and it has been almost 3 years and he has not put his property on the market and says he doesn't want to sell!

Customer:

He also states that he would pay interest by standing order, which he never set up so any interest, I have had to again chase him repeatedly for.

Ben Jones :

It is certainly possible to pursue him through the county court for this, by using Moneyclaim Online. This is a contractual dispute – you lent him some money, he agreed to repay it and is now refusing to do so – even if there was nothing in writing you can still pursue him as a contract wold be implied but having a written agreement is even better, especially as there were repayment terms in there which should have prompted him to start repaying the money by now.


 


The issue is that even by going to the courts, there is no guarantee the money will be repaid. You could sue him, win and obtain judgment against him, but then you still rely on him agreeing to pay you back. If he refuses it is then for you to try and pursue whatever enforcement options are available to you, such as getting the bailiffs in, trying to make him bankrupt, trying to register a charge on his property and so on – various options exist and they will inevitable bring further costs and time whilst being enforced but it is what you would have to do if he is not cooperative and agreeing on paying the debt once the court has ordered him to do so.

Customer:

My understanding is that the charge on his property would be my best option, but that means that he needs to sell his property but doesn't want to, could he overprice it on the market or refuse any offers that come in so that it just remained for sale indefinitely. Or would he be forced to sell quickly e.g. by auction. I know he has a large amount of equity in the property, it is worth over £600,000 and his mortgage is for approx half of that amount. So if he doesn't want to sell, I'm sure there is options for him to borrow against the property.

Ben Jones :

you can try and force the sale and that is called an order for sale which you seek permission from the courts to do. A good guide on this option can be found here:

http://www.adviceguide.org.uk/wales/debt_w/debt_action_your_creditor_can_take_e/charging_orders.htm

Customer:

I know through money claim, it will cost about £340 but then that will be added onto the amount which he owes me. But, do you know what costs are involved in pursuing enforcements, registering charge on his property, etc? And will he be held responsible to pay those, when I get my money back?

Ben Jones :

the application for a charging order is £100, maybe the same to get an order for sale, you can add these to the debt

Customer:

And would I need to attend court for the CCJ, the charging order and the order for sale? And would I be ok to represent myself or would I need to have a solicitor?

Ben Jones :

for the initial hearing for the debt you will have to attend, the other applications you probably won't as they are made by a judge on heir own although there is a possibility a hearing may be convened for the order for sale as it is an important decision for someone. You do not need a solicitor and can do this on your own if necessary

Customer:

So you said that even if I sue him, win and obtain judgement, I am still relying on him to pay me and only if he refuses can I enforce him, but could he decide he wants to pay me over a large amount of time, say in instalments over 5 or 10 years? Or would I have the right to only be willing to accept terms that suited me, e.g. full payment or at least something along the lines of 50% now and the remainder in a year and if he then refused, I could go ahead with enforcement such as a charge on his property? I just can't accept small gradual payments over a really long period of time, I need large instalments over a short period of time or the entire amount in one go for the sake of my own financial situation.

Ben Jones :

you can request the full amount or installments as they suit you but also have to consider what he can pay and be realistic

Ben Jones :

but if no agreement is reached then you can try other enforcement methods such as the charging order and order for sale

Customer:

Thank you for your help. Hopefully once he knows that I have sought legal advice and am prepared to take him to court, he will take me seriously, stop fobbing me off and sort something out. So none of this will be necessary, but its good to know where I stand!

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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