Help! Just as my credit has cleaned up considerable, out pops a blast from the past. As I have written in a earlier post, about 4 years ago I was in financial shambles. I was dating this guy at the time, who insisted on helping me financially to alleviate some stress in my live so I could focus more on the relationship. He had given 2 checks. This was in 1999. Unfortunately, about 8 months later the relationship did not work out and just now his is trying to sue me for the money he gave me as a gift, and the cost of various gifts if gave me thru out the relationship, such as birthday gifts and Christmas gifts. In the legal complaint, he is stating that the money was a loan and the gifts were things I asked him to buy for me with the promise of repayment. I am shocked to hear this from him now, 2 years after the relationship ended. My question to the board is this... 1) Can he obtain a judgment for this? 2) Legally, the fact that he presented me with 2 checks, does this imply a contractual obligation. 3) We live in different states. He filed in the state he resides in, not the state I reside in. Is this under the correct jurisdiction? I know this is more personal information than we are use to on this board, but I am very upset about this and hope that the members on this board can provide me with some useful information. Thank you.
It will be very difficult for him to prove the checks were a loan unless there was a specific stipulation on the check (i.e. "Loan" written in the memo section or endorsement section) and even with this it would still be difficult to prove. The gifts will be almost impossible to prove as a loan. As for jurisdiction, in most states, you have to be sued for civil matters in your jurisdiction - I would go to you local law library (usually available at the country court free of charge) and inquire on where to find the statutes for this in your state. The law librarian cannot give you legal advice but can almost always point you to the correct books to find the information. When I worked for the state collecting child support, even in these cases, which are backed much more strongly in the law, we had to file in the state in which the party resided. Once you find the statutes, send your response to the court via certified mail - advising that the party has no jurisdiction over you in your state of residence. The below link provides some basic information on this: http://www.nolopress.com/encyclopedia/articles/cm/which_court2.html
Hal, Thanks so much for your reply. I can't tell you how much sleep I have lost over this matter. If I may ask your further opinion...He has copies of 2 checks which I have endorsed, with the words "Loan" written in the memo. When we initially broke up, I thought that this may be a problem, because he was so bitter, so I called my bank and had them send me microfiche copies of the checks as they were presented to them. The memo is blank. There is no notation of the words "Loan". He obliviously inserted the memo when he received his cancelled checks in the mail. Does this pretty much make this an open and shut case? And is he exposing himself to perjury, since he has signed a certification stating that these documents are true and accurate?
I disagree. I think the general rule is that on this type of suit, court venue is decided by where the plaintiff or the defendant lives. Since the plaintiff is suing, he picks the venue. It may be possible to get it changed to your local court, but more likely, it will stay where it is. But, research the issue to determine what the rule is in your state. On the memo section of the check - a common trick is for the writer of the check - your boyfriend in this case- to enhance his case by writing in the memo section of the check the words "loan" after he gets it back from the bank. If this happens to you, you will have to get a copy from the bank of the check when it cleared, before he altered it. If he trys to pull a stunt like that, he will destroy his credibility. To answer your question, anyone can sue anyone for anything. You may have to go to court to fight it. The result depends on who the judge believes. The absence of a loan agreement is at least an indication no loan was intended.
Tom65432, Thanks for you reply... On the issue of a loan agreement...let me give you more detail and ask for your opinion please. In another court matter, where I had to obtain a restraining order, (I know, more personal info than the board is use to) he attempted to introduce this issue to explain his strange behavior. He present to the court a Promissory note, freshly typed with no signatures. He testified that when he gave me the checks, he asked to to sign this loan agreement and I refused. I had never seen that document until that court date. Should I get a transcript of this hearing? Will this help?
As for Jurisdiction - this is from the NOLO site, and I believe it applies. All states are different so be sure you check your local statutes: "Federal and state laws grant and limit courts' jurisdiction -- that is, the power to hear and decide a particular case. To make a legally valid decision, a court must have two types of jurisdiction: personal jurisdiction and subject matter jurisdiction. Personal jurisdiction rules determine whether a court has power over a particular defendant, while subject matter jurisdiction establishes the court's power to hear the kind of case a lawsuit involves. Here, we describe the ways that a court can have personal jurisdiction over a defendant: 1. Defendant Resides or Does Business in the State Determining that a court has personal jurisdiction over a particular defendant is easy when you file the suit in the state in which the defendant resides or does business. The nearly universal rule is that the courts in a state have personal jurisdiction over all people or businesses that are citizens of or do business in that state. " The exception is generally if you own property in his state of residence, normally do business in his state, or if you were visiting his state and were served with the paperwork there. As for the checks, it is common for someone to try and pull this stunt after the check has been processed by the bank - judges are fairly good at noticing this, and as you have copies of microfiche from the bank - I would think you are covered. He can alter the check, but you cannot alter the microfiche from the bank.
Yes, get the transcript. That is 1/2 of your case in showing there was no loan intended. If it really was a loan, and he had really presented you with the papers at the time of the transaction, he would not have gone forth with the loan. His case is just not believable. The other 1/2 of your case is the altering of the checks. Apparently you were writing your reply at the same time I was, so I was not aware that you already covered this base. Look at the pleadings. Chances are that he attached copies of the checks to his pleading. If he did so, he has already destroyed his credibility if you have copies of the original from the bank. You may have to go to court, but you have a great case. On the subject of jurisdiction. Did the transaction take place in the state where he is suing you? If so, he has a good argument that their state court can hear the case.
Tom65432, The transaction took place where I live. He is suing me in his state, in his county. OK, I am feeling pretty good about this, but there is another twist to this that may have some impact. In his papers, he has stated that there was a marriage contract between us, and that we were planning our wedding the following year. I don't understand his point for putting this in his legal complaint. It is a bold face lie. We dated for just under one year, he never proposed to me, there was never an engagement ring, he never met my family, nor I his. Is there some legal avenue his is trying to get to by stating we had a contract of marriage?
IMHO, there ain't no marrige contract until you both say "I Do" in front of the priest. An engagement can be broken. That what engagements are for. The guy is a dufus. Countersue for fraud.
$wealth$, How scary. I think you have a solid case and you will win. Others are right that normally you should counter-sue - except for this: would you want to be legally wrapped up with this man if you win a judgement against him? My red flag went up when you mentioned a restraining order. If this guy is so bitter as to attempt a frivolous and illegal lawsuit two years after the relationship, and you had an order against him - just watch your back. I'm not sure I'd want to be legally tied to this man - even if it meant more money for me. Please tell your family/friends (in writing) of your every move. Also tell the judge of the restraining order history, too. I know my reply is off-topic - but I've "been there and done that" with unbalanced people and know how sick people can get. Best wishes,
Let's look at this logically (most judges are logical). He says you planned on getting married but he wants you to sign a loan agreement when he advances you money? It just does not make sense. I can't see that happening. I think his claim of a marriage contract is just more proof that he intended it as a gift, not a loan. Remember he is arguing an agreement to marry, not you. So your argument is not inconsistent. You can still say there was no agreement to marry and it was a gift. But, you can also argue, that based on his premise - there was a marriage contract - a loan does not make sense. A couple to be married does not enter into a loan agreement. He did not think this through before he filed. But, I cannot see where he is going with this argument. It's weird. Normally, if there is an agreement to be married and the engagement is broken off, the parties can keep any gifts (such as an engagement ring). So his agreement to be married argument would be more favorable to you than him. I am rethinking the jurisdiction question based on what you said in your last post. Everything happened in your state. That is where you should be sued. Fairness dictates that you cannot be sued in a state where you did not do business. And the jurisdiction laws are based on fairness. But, you may have to go to his state to argue this question. If it is in small claims court, it might just be easier to go there and argue the case on the merits. Make just one trip.. But, still thinking, if you can get it dismissed on jurisdiction, he may not want to make the trip to your state to sue you there. Here is your problem. Judges frequently will not rule on a motion you filed until you have a hearing. If you file a motion to dismiss based on jurisdiction, they may make you go there to argue it in person. Call the secretary for the Judge (not the Judge) and ask if that Judge will allow you to argue the motion on the phone. If so, Go for it. If not, come back and we can rethink this. There is a time question here. You will need to file your answer and motion to dismiss within the time limits allowed. So, don't delay or he will get a default against you.
Dufus...I haven't heard that word in a long time. I got a good giggle out of it. I was actually thinking of counter suing, for harassment, frivolous lawsuit, but fraud seems more appropriate since there are a few issues where I can demonstrate he has lied.
I'm still thinking. Look at the statute of limitations. This is an oral agrrement for the loan of money. If you are lucky, the SOL will have expired.
Forget the countersuit. Take the high ground. He has already laid claim to the low ground. You need to go in as the victim. Show him as the sleeze. If you counter sue, both of you will look like bitter ex lovers. Show that you have gotten over this and want to move on. The restaining order shows he is the screwball here.
I have retained an attorney who is licensed in both states. He was not very good at explaining a plan of attack of this one, but stated he will have to research. He was very good however on making sure I understood his fee structure Tom, I do plan on filing my response to his complaint by the end of the week. From past experience, I know default judgments are the easiest thing to get, and the hardest to get ride of. It is pretty scary, because he went as far as to have papers served on me at my place of employment. The person who served them knew exactly who I was when I got out of my car. It's not the same car I had when I dated this guy. I think he is still stalking me. This also coincides with the fact that I have place my house up for sale. There is a big for sale sign on my front lawn. I think this his way of tracking my move. And I think he will always know were I'll be because he is an investigator for the state he lives in. He has seeked professional help in the past for failed relationships. Any who...my immediate goal is to prevent him from obtaining a judgment against me and to have this dismissed "with prejudice".
-------------------- Be careful! This is beginning to sound like "Fatal Attraction" --------------------- Naw! More like "Sleeping With The Enemy".
Wealth, This may be personal, here, but exactly how much money are we talking about? If it is a small claims suit, you don't need an attorney. Usually small claims courts put a cap on the money that can be sued for. Typically the amount ranges from $2-5000. This board has given you some good advice and you should follow it. Don't waste money on an attorney when you could do it yourself. Frankly, if I were you, I would take his a$$ to JUDGE JUDY!!! Good luck!
Erica, He is alleging that I owe him in excess of $7,000. This includes the 2 checks he gave me, plus the cost of the birthday & Christmas gifts and other gifts thru out the relationship, plus an amount that he stated I charged to his credit card with the promise of repayment. I had never had access to his credit cards, nor have I ever used his credit cards. There are no transactions that he didn't personally sign for. I have no idea where he is getting the additional $$$ for credit card debt. In his complaint he did not provide any receipts, credit card statement, or itemization of what the charges were for. This was obviously only done to inflate what his claim. I only hope that this is just as transparent to the judge.
