Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask when a payment was last made or acknowledged in respect of the loan please?
Was the money originally loaned in cash or by bank transfer?
Has your friend made any proposals to date?
The payment of £10,000 was made approximately 9 months ago as a bank transfer
the original loan amount was made as a bank transfer
no she has not made any proposals to date as she can not afford to pay the remaining 5000
is your friend able to make any form of monthly repayment do you think? Does your friend have any capital assets against which her ex could potentially claim against? for example, would I be correct to assume she owns her own house in view of what the money was used for?
yes she has her own house.
yes she would be willing to make monthly payments however the amount she could pay per month is approx. £50
thank you. Based upon what you say, your friend's ex partner would appear to have the basis of a potential claim against your friend for the balance of the loan made to her and if he is not able to come to an agreement with your friend terms of repayment amicably, there is a risk that he may issue proceedings in the County Court in order to recover monies
How much would the cost for him be to undertake a County Court order to recover the money? would this cost not out weigh the remaining amount?
if her ex-partner word to issue proceedings in the County Court, he would need to be able to evidence that money was paid to your friend's from what you say would simply be a matter of producing a bank statement, and stating that only two thirds of the money has been repaid. On the basis that your friend would be unable to produce evidence to demonstrate that the other £5000 has also been paid, unfortunately, such a claim would be relatively straightforward for her ex-partner to undertake. if judgement is issued against your friend, she would have 28 days to pay the money failing which she would have a CCJ entered no credit record which would make obtaining credit more difficult for a period of up to 6 years. Her ex-partner could also seek enforcement proceedings against her about barring an application for bankruptcy which is remote in the circumstances, it is unlikely that he would be able to force any sale of the property or take any other significantly punitive action against. Rather, in practice he is likely to be limited to placing they charge against her property which would entitle him to recovery of the sum when she sells the property and/or seeking a deduction of any monies she receives as income each month
there are other forms of enforcement action such as appointed bailiffs to seize goods and so on however if she does not own any significantly valuable assets to seize then there is a limit to how effective bailiffs can prove
In terms of fees for a county court application...
There would be a fee of £120 (£100 if he issued online) to issue a claim. If your friend were to defend the claim - though it is difficult to see what her defence would be there would be an addition fee of £40 to allocate to a county court and if the matter proceeds to a hearing a further hearing fee of £325. He is able to recover these fees and interest at 8% per annum if he is successful.
if there were any monies owed to your friend by her ex-partner, then she may seek to recover such monies by way of a counterclaim against her ex-partner either informally or if he were to issue a claim in the County Court, by way of a counterclaim against him. You do not mention that any monies are owned by her ex-partner but I mention this for the sake of completeness
ideally for your friend, unless she has a new form of defence such as the above, she and he would be able to come to some form of amicable arrangement in respect of repayments. Ideally, she would be able to offer him as much as she can reasonably afford as the more she can offer, the less likely it is that he may resort to legal proceedings. if he remains dissatisfied with any offer she makes, she could give consideration to offering him a charge as security; ideally, she would not do this however if it avoids him issuing proceedings in the County Court, it may be worth considering as it is one of the types of enforcement action he could see through the courts anyway.
is there anything above I can clarify for you?
Thank you for that and if the money was given in cash how would that affect things?
A pleasure. Do you mean in cash by ex to your friend originally?
if the original loan had been provided to your friend by her ex-partner in cash this was simply mean that in the event your friend word to deny having received the loan, it may be potentially difficult for your friends ex-partner to prove that the loan was made to her. If the loan was made however by bank transfer, then there is little doubt that the money was paid because there is a financial record of it
your friend could claim that the money was a gift however there is no presumption in law of the gift in the circumstances and the burden of proof would therefore be upon your friend to prove that such money was gifts if this was a contention. In addition, the fact that she has already paid two thirds of the money back would make such a contention difficult and from what you say, she does not deny that the money was a loan
is there anything else I can help you with?
Does the above answer all your questions or is there anything I can clarify or help with any further?
No that is great thank you
A pleasure. I hope they will be able to resolve the matter amicably. If I can assist any further as the situation develops please do no hesitate to let me know.
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