Lending to an ex

[Lokur]

Hey,

 

I lent money to my ex over a period of time which she has been repaying.However once we broke up the repayments became irregular, and now have ceased all together.

 

She borrowed in the area of £3k and have repaid about £0.8k. The loans was through a mix of transfers to her account, I paid for a coat for her that she wanted, and I also paid for my own birthday present that she was repaying towards and for a holiday we went on together all with the agreement that she will repay me.

 

She states that if I take her to court she will just say it was all presents and refuse it, says she will pay it back eventually but when she feels like it and can afford it.

 

What should I do? It's now been over a month with no payments.-L

Edited April 20, 2015 by maroondevo52
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[steampowered]

You might be able to convince the judge that a transfer to her account should be treated as a loan. The judge would have to decide whether, on a balance of probabilities, he thinks it is more likely that the transfer was a loan or a gift.

 

However, unless you have anything in writing, it will be extremely difficult to convince the judge that the coat or holiday was intended as a loan. These items are not normally repaid by girlfriends/boyfriends.

[Ganymede]

I think you may struggle to recover this money.

[Lokur]

Particulars of Claim The claimant lent ******* £3,246

over a period of 2 years,the respondent haverepaid £960

of the outstanding amount and hasceased all payments as of 07/03/2015.

I have followed the pre action protocols andthe respondent

have refused to pay anyfurther and are threatening criminal chargesof harassment if the claimant

contact therespondent regarding this debt anyfurther.

The claimant has calculated the following

Outstanding debt: £2,286

Court costs of £105

Interest of £151.87 (to 20/04/2015)

The claimant claims interest under section 69of the County Courts Act 1984 at the rate of8% a year from 01/02/2013 to 20/04/2015 on£2,286.00 and also interest at the same rateup to the date of judgment or earlier paymentat a daily rate of £0.53.

[Lokur]

I have nearly everything in writing, via email correspondence and texts. She has also labeled each repayment with things like payment for loan etc. I've kept track of the dates a loan was made, and when it was repaid and the dates of transactions etc.

[Ell-enn]

Have you sent a letter to her asking for payment, if so, did you keep a copy ?

[Ell-enn]

Sorry, looks like we both posted at the same time

[Lokur]

Have you sent a letter to her asking for payment, if so, did you keep a copy ?

 

I've sent emails, and I have copies. I also sent a letter before action that I have copy of which was 2 weeks ago. That she didnt respond to.

I had a phone call today from the police stating that I'm not allowed to contact her as this could escalate into an harassment offense. Nothing I've sent have been harassing or aggressive. But it leaves me no other option but to pursue this through the court.

[Lokur]

You might be able to convince the judge that a transfer to her account should be treated as a loan. The judge would have to decide whether, on a balance of probabilities, he thinks it is more likely that the transfer was a loan or a gift.

 

However, unless you have anything in writing, it will be extremely difficult to convince the judge that the coat or holiday was intended as a loan. These items are not normally repaid by girlfriends/boyfriends.

 

The cash transfers are all labeled with Loan, and the agreement to pay half for the holiday etc I have emails and communication showing the persons agreement to.

[renegadeimp]

If you have 100% proof of what you say and she agreed the money was a loan and not just gifts, then since you have given her a 14 day LBA, get court papers in asap. Bear in mind that the decision will reside with the judge at the end of the day, and they may see it as gifts, especially the holiday one that you all went on together. Thats why full paperwork is very important.

[Lokur]

I have emails with admittance of debtAll cash transactions have been labeled LoanI have repayments from her regarding holiday labeled with the destinationI dont have a signed agreement but I think the above should be enoughI've just filed a claim with MCOL, in the end £105 to possibly get back my £2.2k is a risk i'm willing to take.

[steampowered]

Alright then, good luck. I'm still a bit sceptical about claiming for the coat/holiday, but perhaps worth a go if there is email correspondence referring to that being a loan. It is certainly worth a go if the bank transfer was labelled 'loan' and there is email evidence to indicate that it was agreed, at the time, that this was loan.

 

I think your approach is absolutely right. If your ex has tried to use the police to claim harassment, it is important that you do not try to talk to her by telephone about this. Simply keep everything about the court proceedings in writing and always keep a copy, so that you have a clear written record of what has happened if she tries to claim anything funny in future.

[Lokur]

She has offered me an acceptable settlement, and I'd prefer that over going to court.I spoke to the MCOL helpdesk and they say we can set up an informal agreement which if defaulted will lead to a judgement.Could someone walk me through the process as the lady on the phone wasn't all that helpful on the details just referring me to the mcol website.

[Ganymede]

The lady on the phone wasn't helpful because she's not legally trained and is not allowed to give legal advice and probably went beyond what she's allowed to tell you trying to help.

 

Anyway, she's referring to a Tomlin Order. If you search the forum you'll find plenty of examples. There is a £50 fee to get the Court to approve it though.

[steampowered]

It's great to hear that you've managed to settle.

 

A Tomlin Order is the clearest way to do it. But you can avoid the fee for that if you just get your ex to confirm the agreement in a short email or a letter - you would then simply withdraw the claim once you have received the money.

[Lokur]

I think I have to do a Tomlin Order. As she wants to pay it back in installments of £100 on a bi-weekly basis.

I Found a template that I used, and wrote out a Tomlin order:

UPON THE PARTIES HAVING SETTLED THEIR DISPUTE BY MEDIATION ON IT IS AGREED THAT:

1. XXXX shall pay XXXX the sum of XXXX by way of bank transfer on a bi-weekly basis of £100 instalments starting the 15th of May 2015.

2. The sum referred to in paragraph 1 is paid and received in full and final settlement of all between XXXXX and XXXXX, including interest and cost.

3. The contents of this agreement shall stay confidential between the two parties.

4. If the agreement is breeched by the respondent, it’s agreed that the original claim shall come into effect.

6. The Tomlin Order forms part of this settlement agreement. XXXXXX will file this Tomlin Order with xxxxxxx County Court by 22/05/2015.

 

She is still negotiating slightly on the full amount but we're so close in money terms it's not a problem really.Anything else I should include?

Also does paragraph 4 mean that if she defaults on the tomlin order, the full £2.4k would be payable and not just the agreed Tomlin settlement?

[Ethel Street]

Sorry, can't add anything of substance but the pedant in me comments that in 4 it's 'breached' not 'breeched'.

[steampowered]

Delete the reference to mediation, it doesn't sound like you used a mediator.

 

On paragraph 2 'costs' not 'cost'.

 

You need to specify the total amount that needs to be paid.

 

I don't understand what point 4 means. The words 'the original claim shall come into effect' are not clear, although they appear to suggest that the original claim would then be resurrected and go to trial if the Tomlin Order is breached - which would be a bit strange.

 

I would suggest deleting point 4 entirely and replacing it with either 'Each party shall have permission to apply to the Court to enforce those terms without the need to bring a new claim.'

 

You can also add 'If the Defendant fails to pay any of the agreed instalments on their due date, the agreed amount of xxx shall become immediately due and payable'.

 

You don't need paragraph 6.

[BazzaS]

I think I have to do a Tomlin Order. As she wants to pay it back in installments of £100 on a bi-weekly basis.

I Found a template that I used, and wrote out a Tomlin order:

UPON THE PARTIES HAVING SETTLED THEIR DISPUTE BY MEDIATION ON IT IS AGREED THAT:

1. XXXX shall pay XXXX the sum of XXXX by way of bank transfer on a bi-weekly basis of £100 instalments starting the 15th of May 2015.

2. The sum referred to in paragraph 1 is paid and received in full and final settlement of all between XXXXX and XXXXX, including interest and cost.

3. The contents of this agreement shall stay confidential between the two parties.

4. If the agreement is breeched by the respondent, it’s agreed that the original claim shall come into effect.

6. The Tomlin Order forms part of this settlement agreement. XXXXXX will file this Tomlin Order with xxxxxxx County Court by 22/05/2015.

 

She is still negotiating slightly on the full amount but we're so close in money terms it's not a problem really.Anything else I should include?

Also does paragraph 4 mean that if she defaults on the tomlin order, the full £2.4k would be payable and not just the agreed Tomlin settlement?

 

My inquisitive side wonders what was in paragraph 5 that got deleted (as it jumps from '4' to '6')

[Lokur]

Paragraph 4 was meant to be that the claimaint could apply to have the full amount owed £2391 as a judgement if the respondent failed to deliver on their agreed Tomlin Order of £1,700.Is that not possible on a Tomlin?

[steampowered]

I don't think you'd need to say 'apply for judgment'. The Tomlin Order is itself a binding court order. I think the Tomlin Order itself should simply say something like that if payment is not made on X date, the Defendant will pay 2391 forthwith.

 

There is no Respondent here - only a Defendant.

 

Given the installment arrangement, the Tomlin Order would need to be very specific about when liability to pay the full amount is triggered. It can't be ambiguous. For example, if one installment is one day late, does that trigger liability to pay the full amount immediately? Or is there a grace period? Consider providing for a 7 day grace period on each payment and/or for at least 2 or 3 payments to be late, before liability for the full amount is triggered.

[panther12]

All that needs is a simple 2 page Tom Order that's in proper court format. The first page headed Tomlin Order and say something along the lines of:

 

Upon agreement having been reached between the Claimant and the Defendant for settlement of the issues in this action.

 

By consent it is ordered that:-

 

1. All further proceedings in this action be stayed exept for the purpose of implementing the agreed terms set out in the attached shedule.

 

2. No order as to costs.

 

The second page to be headed SHEDULE detailing the agreed terms. End the last numbered paragraph with the words: Liberty to apply.

[Lokur]

THE SCHEDULE

MADE ON 12/05/2015 BETWEEN

(a) Mr XX of XX and

(b) Ms XXof XX

 

UPON THE PARTIES HAVING SETTLED THEIR DISPUTE BY NEGOTIATION ON 12/05/2015

BY CONSENT IT IS ORDERED THAT:

1. XX shall pay XX the sum of £1,700 by way of bank transfer on a bi-weekly basis of £100 instalments starting the 22nd of May 2015.

2. The sum referred to in paragraph 1 is paid and received in full and final settlement of all between XX and XX, including interest and cost.

3. The contents of this agreement shall stay confidential between the parties.

4. If a payment is missed by more than 7 days the defendant will pay £2,391 forthwith less any payments made under this agreement, in addition any statutory interest accrued since 21/05/2015 is payable forthwith.

5. Liberty to Apply.

 

I feel I'm being very lenient here, as she actually forgot to acknowledge service and I could apply for a default judgement. But she does live 5 minutes away, so things could become akward. I also agreed to this before I knew she had forgotten to acknowledge service so I feel it would be wrong to now backtrack.

[Lokur]

Just an update on this, she has paid nearly half the owed amount.I think the remainder is £1200 or so I would have to check my records, however she missed another payment today. Ontop of about 4 missed ones last year. The ones last year I know the reasons for and have been cool about.However I was told today that she is not paying today, shifting the payment till next Friday. I wish to apply for the Tomlin to be enforced. Is there any pitfalls, anything that could get it thrown out? The court edited the tomlin slightly, so i'll get a scanned copy done and posted here as well just in case.

[steampowered]

As per the Tomlin Order you posted, you can apply for the remainder of the full 2,391 to be paid immediately, if a payment is more than 7 days late. You would do this using form N244.

 

If a payment due this Friday is paid next Friday, it is not more than 7 days late so wouldn't be enough to trigger further enforcement of the order.