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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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In 2011, following a phone call from one of my sons I lend

Customer Question

In 2011, following a phone call from one of my sons I lend him and his wife £5k to enable them to move house. The money was transferred into their joint bank a/c. I didn't specify a time limit for repayment of the loan because I have significant savings. I have an undated Thank You Card from the wife acknowledging the loan and promising that they would repay the money once they'd moved in. They have just divorced, the house has been sold and the ex-wife received 88% of the equity. I have asked her to repay 88% of the loan but she says that the loan was to my son, not her, and he declared it all as his debt in the divorce papers. I'm wondering if I have a legitimate claim against the ex wife, and if so should I claim 50%, 88% or if she is severally liable 100%.
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
have you anything in writing from her re accepting the money or anything?
Customer: replied 1 year ago.
As mentioned in the question - the Thank You Card
Expert:  Ash replied 1 year ago.
Yes I wondered if there was anything else. You can use this card as evidence it was accepted jointly.
You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.
If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk  or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.
The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.
If the claim is for £10,000 or less it will be a small claim so you will not need legal representation. Over this value you would need representation for trial.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.
I am aware of the small claims process, which you outline. I have already carried stage one.that you mention ie, a letter to the ex-wife with a deadline for reply. I received a rebuttal naming my son as wholly responsible.
I need to know if I have a case, and if so for 50% 88% or 100% of the loan if she is severally liable. Please answer the questions in my original question.
Expert:  Ash replied 1 year ago.
The Judge can award 100% or nothing. Its a matter for the Judge. If she is joint and severally liable it will be an all or nothing claim. The Judge will either be with you or against you. Based on the card I think you have a claim.
Does that help?
Alex
Customer: replied 1 year ago.
So, legally, in a verbal contract situation regarding a joint loan - is each borrower severably liable?Should I claim a percentage of the loan or all of it?
Expert:  Ash replied 1 year ago.
Yes. But you should claim 100% of it. The Judge can always award lower but can never award higher.
Does that clarify?
Alex
Customer: replied 1 year ago.
So, in summary, are you saying1. Yes, she is severably liable
2. I should claim the full amount of the loan - £5k.
3. Legally, you think I have a good case
Expert:  Ash replied 1 year ago.
Yes.
Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you
Expert:  Clare replied 1 year ago.
Hi I need to add to what my colleague told you giving you the Family Law side of this.You need to be aware that there is a strong possibility that this WAS dealt with within the divorce finances and your former daughter in law will pass the debt onto your son.Only g ahead if you are happy with this possibilityClare
Customer: replied 1 year ago.
Clare, thanks for this late piece of advice. Some more background information for you : -In the divorce proceedings, which were conducted out of court by solicitors, my son listed as a debt the £5k loan from me.In my former daughter-in-laws rebuttal of my claim for repayment, she states that in Form E 'Statement of Truth' my son records the liability as his. He restates this in his document that sets out his capital needs. So my ex daughter-in-law concludes that my son accepted the loan as being his debt.My son was trying to secure provision from the equity for extra funds to repay me. He tells me that they decided jointly to ask me for the loan, it was paid to a joint bank a/c, and used for their joint benefit. She sent me a note thanking me for the loan and promising that they would repay it. So, at the time, she accepted it as being a joint loan. Because she now contends that it is not her debt, it seems reasonable to conclude that she will not have allowed any of the equity to be allocated from her share to repay me.Please advise further.
Expert:  Clare replied 1 year ago.
I am sorry but based on that whilst your former daughter in law is indeed liable to you for half of the debt, if you do sue her then she will be abl eto recalim the monies form your son based on the financial settlement reached between them
Customer: replied 1 year ago.
So are you saying that the equity my son received, which was little more than the £5k owing, plus enough to pay his legal bill, would have included provision for him to repay her share of the loan even though she denies she owes me anything?Also, Alex has said that the ex daughter in law is sevrally liable so I should sue for 100% and see if the judge reduces the amount. However, you are saying that she is only liable for 50% - please clarify.Bot***** *****ne are you advising me to forget it and not to go ahead with a case?
Expert:  Clare replied 1 year ago.
There are two separate issues hereUnder Civil law Alex is correct.Your former daughter in law is indeed "jointly and severally"liable to YOU for the whole amount of the debt.You can sue for the whole amount and the court can decide what if anything she should pay.However, entirely in an entirely separate case your daughter in law can then use financial order agreed with your son to recover the mponey from him.All I am suggesting is that you discuss this with your son before you do anything
Customer: replied 1 year ago.
Am and will do - could she go after him for all of it or just 50%?
Expert:  Clare replied 1 year ago.
She can potentially claim from him anything she had to pay you
Customer: replied 1 year ago.
OK thanks - will check again with my son
Expert:  Clare replied 1 year ago.
Good idea
Customer: replied 1 year ago.
My son is content that I start a small claim case against his ex-wife. As my ex-daughter-in-law is severally liable for the whole amount of the debt, I would like now to claim against her for the full amount of the loan i.e. £5000, but I'm wondering if legally I must limit my claim to the figure stated in my letter to her - £4361.50 - i.e. the 88% of equity she received from the sale of their house. I think it best to base my claim on the actual amount of the loan rather than link it directly to the divorce settlement. I'm reluctant to write again to my ex-daughter in law informing her about this change because in her rebuttal letter she described my letter to her as being harassment. Am I OK to make this change anyway? What do you think?
Expert:  Clare replied 1 year ago.
My personal opinion is that suing her for more than half will back fire on you - however if you decide you wish to sue her for more than that then go for the full amount
Customer: replied 1 year ago.
Thanks for your opinion. If she had offered me half the amount then I'd planned to accept, instead she denied all responsibility. Your colleague said that the judge could reduce the amount but not increase it, so because she's severally liable I thought I'd better claim the whole amount. If this is not sensible please explain why this could backfire?
Expert:  Clare replied 1 year ago.
I think if she choses to defend it there is a high possibility that the court will see this as harassing someone who has left the family - since clearly your son is just as liable for the debt as his ex is.
Customer: replied 1 year ago.
So, do you think it would be better to write again modifying my claim i.e. no longer linking it to the divorce settlement, only to the loan, and asking her to repay 50%?
Expert:  Clare replied 1 year ago.
Yes I think that would be better
Customer: replied 1 year ago.
OK I'll do that, ask for her reply within 14 days.
Expert:  Clare replied 1 year ago.
Good luck
Customer: replied 1 year ago.
Hello again Clare,
I did send another letter to the defendant, reducing my claim to £2500 (50% of the loan), as you advised, but again she has denied the debt.
I have just completed a County Court Claim Form asking for legal costs (£47 - Just Answer) plus court fees (£115) and any interest (8% until judgement).
Because I modified my claim, I'm not certain if I should include both of my letters to the defendant, and her two replies, along with the Claim Form, or just the recent letters. Also, what is your view about claiming the above costs? Thanks
Expert:  Clare replied 1 year ago.
HIThere is no need to enclose any of the letters at this stage - you cannot claim the legal costs I am afraid as this is a small claims matterClare
Customer: replied 1 year ago.
I'm even more confused now - to help me complete the N1 form I've been following the 'Completing The Claim Form' advice from a wesite call Quality Solicitors.com, which says a couple of things that you contradict :
1. "There are rules limiting what you can claim back with small claims. However if you have paid for advice, such as the QualitySolicitors’ £99 Ask the Legal Expert service, there is no harm in putting down what you have paid."
2. "If you have referred to documents in the particulars of claim section print one copy for each Claim Form and staple a copy to each N1 Claim Form"
Is this wrong? Do you say that I should send only the forms without any backup information?

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