Lent $ to brother in law & hsnt gvng it back

What is the name of your state? Florida

I lent my brother in-law $5000 in 2000, since then him & my sister got divorced. I lent him the $ to help him start up his Truck Business again & he promissed that he would pay me back when he makes that $. Well now I dont talk to him b/c of personal reasons & he ignores the fact that he owes me that $. Which I was going to use as a down pmt on a car. It was a VERBAL aggrement. Theres no proof I lend it to him. I just have proof when the $ was deposit & when $ was being withdrawled out. Does a recorded conversation work? Please help

[stephenk]

you should understand that you loaned the money to your sister and brother-in-law, not just the brother-in-law. He was putting together a business that was community property.

So if you want your money back you would need to make a claim to the community. inform your sister that you want the $5k listed as a community debt. they will then have to determine how much each of them are to pay back. sister may pay the whole debt in exchange for something of value from her hubby or vice versa.

be prepared for sister's hubby to claim that you wont make your sister pay so only half of the loan is actually owed to you.

[I AM ALWAYS LIABLE]

My response:

Stephen, can you show me where, in Florida law, that Florida is a community property State?

Thanks.

IAAL

[JETX]

Since Florida is NOT a community property state, a loan to your brother-in-law would not be community property, but would be a direct loan to him personally.

"I lent my brother in-law $5000 in 2000, since then him & my sister got divorced. I lent him the $ to help him start up his Truck Business again"
*** The Statute of Limitations (SOL) is CLEARLY ticking on this loan. You said you made it in 2000, meaning that it is already 2+ years old. If this were a written agreement, the SOL is 4 years, but it may be only 2 for a verbal.
State laws govern how long the SOL period will be. These rules are notoriously harsh and inflexible, and your failure to act within that time frame will result in your losing the right to have your day in court.
The only caselaw I could find was
Phillips & Jordan Invest. Corp. v. Ashblue Co., 357 S.E. 2d 1 (N.C. Ct. App. 1987), found: "(holding in an action on a verbal agreement which failed to specify time for repayment that the statute of limitations did not begin to run until reasonable time for repayment had passed). Because this intermediate approach emphasizes a case-by-case determination that may result in inconsistent holdings by the lower courts and may create difficult evidentiary issues based on a "reasonable" length of time".
Further, in the opposing opinion:
"Accordingly, I would conclude that where no time for repayment has been
specified or the loan is payable on demand, the statute of limitations begins to run when the oral loan is made. Moreover, although the majority relies on public policy to support its sub silentio abrogation of the common law, strong public policy arguments support the position that a four-year period of time in which to enforce payment of an oral loan is reasonable. If the cause of action accrues at the time the oral loan is made, a creditor's recourse is either to demand payment within four years from the date the loan was made or require that the oral loan be reduced to writing. In the latter scenario, section 95.031(1) will expressly control and the statute of limitations will not begin to run until demand is made."

In any case, whatever you decide to do... you need to do NOW!

"& he promissed that he would pay me back when he makes that $."
*** This will be a problem. Without any specific payback terms, there is no breach. The breach only occurs when the terms have been broken... and there are no terms.

"It was a VERBAL aggrement. Theres no proof I lend it to him."
*** As you obviously know, this will cause some possible problems. Simply, he can claim he never received the money (hopefully, you gave him a check), or that it was a gift or possibly even in repayment for a loan he gave you. There are lots of possible defenses he can offer. Your job will be to anticipate, and kill those claims made by him.

"I just have proof when the $ was deposit & when $ was being withdrawled out."
*** That will probably suffice to show that you had $5k and that it was withdrawn.... and a court could certainly consider that in establishing your credibility, but the weakness is still in claims that he could make as noted above.

"Does a recorded conversation work? "
*** Depending on numerous factors, it could again help to support your claim.

Considering the amount of money in question (and that you are right at the $5k small claims limit), I would certainly go ahead and file suit against him. Then, go to the library and get a book on how to win in FL small claims. It will tell you about pre-trial discovery, etc. that you can use to strengthen your case.

Also, read the information at the following sites:
[url]http://www.florida-justice.com/Fla.Sm.Cl.R.htm[/url]
[url]http://members.aol.com/settlenow/sm-claim.htm[/url]
[url]http://fllawonweb.com/SmallClaims.htm[/url]

[stephenk]

hey i took a shot.

[I AM ALWAYS LIABLE]

My response:

Thanks, JetX (I'm having a hard time getting used to that name, by the way).

Your response contains the information that I was trying to bring forth from StephenK.

On a separate note - -

You're not going to believe this, but I had a weird dream last night - - and I almost hate to admit it - - but I dreamt that we met in Texas, by sheer happenstance. The rest of the dream was like an "Alice's Adventures in Wonderland" story. Really weird.

IAAL

[stephenk]

Okay now I need help. This is what I copied and pasted from a Florida law firm on divorce issues in their state:



PROPERTY AND DEBTS

43. How is property divided in Florida?

As a general rule, property acquired during the course of the marriage is divided 50/50 regardless of whose name it's in.. Although the Courts can in an extraordinary case change the percentages. Note that a spouse may well be entitled to 1/2 the value of a business including good will, equipment and accounts receivable etc.. (although if the business would no longer generate income if the spouse who works it walks away, then good will may not be a factor)

44. How is responsibility for marital bills and debts decided?

Quite often the Court will order each party to pay a portion of the debts consistent with their income. In other words if the Husband makes three times as much as the Wife, he may be ordered to pay three times more than the Wife towards the bills. On the other hand if one party ran up some totally unnecessary bills, then they may be responsible for more than they otherwise would. Be aware however that the credit card companies or other creditors can still come after you for your share of any debt that you are legally responsible for, despite the fact that the divorce judge ordered that your spouse should pay the particular bill.

45. If I move out of my home, and my spouse has the exclusive use of it, have I abandoned any rights and do I have to help with any of the mortgage?

You will not be abandoning any rights to the property by leaving. As to whether you will have to help with the mortgage or other home related expenses, you may be responsible for alimony or child support which practically speaking will be used for the mortgage. But aside from alimony and child support, you do have an obligation as a co-owner to contribute towards the expenses of this joint marital asset .

46. What happens if I own some property such as a house before the marriage and then put the property into joint names during the marriage?

In the case of a house, it is presumed that you intended to make a gift to your spouse and it will therefore be joint property to be divided upon divorce. You can try to rebut this presumption with proof that you put it into joint names for some other reason besides a gift. As far as money, if you take some that you had before the marriage and put it into a joint account and commingle (mix) it with marital funds, in general the Court is going to find that it is marital property subject to division between the parties upon divorce.

47. If my spouse gets to keep the marital home for whatever reason, can I still be held responsible for the mortgage?

Yes, if you were originally on the mortgage, in general your deeding the property to your spouse does not relieve you of the responsibilty for the mortgage. Therefore, if your spouse fails to pay the mortgage the bank can come after you. You may want to talk to the bank about being removed from the mortgage but in general banks do not do this. Unfortunately this may mean that you will have a very hard time getting another mortgage if you want to but another home. The alternative is to ask the Court to order your spouse to refinance the property, but this may not be financially feasible.

48. Are pension or retirement program assets divided the same as other property?

Yes, in general pension rights (whether vested or unvested) and other retirement assets are divided on a 50/50 basis, although it can be a complicated process to divide them without incurring any liabilities for early withdrawal of the funds. And don't forget that $10,000 in a bank account is not the same as $10,000 in a pension or 401k type program. If you try and take money out of the latter, you may well incur penalties for early withdrawal and have to pay income tax on the money you take out.

49. What assets are subject to the 50/50 split?

Property acquired during the course of the marriage by one or both parties is basically subject to a 50/50 split unless there are extraodinary circumstances which require different percentages. There is usually going to be a 50/50 split even though for example one spouse worked ten hours a week while the other spouse worked fourty. The acquired property will still be considered a marital asset. In general the Court is not going to start looking into how hard each party worked during the marriage to contribute, although in extreme cases the Court can consider the level of contribution.

50. Are gifts from one spouse to the other during the course of the marriage subject in general to a 50/50 split?

Yes.

51. What if I inherited money or an asset, or a third party gave a gift given solely to me (and not my spouse)?

As long as the inherited property is not put into joint names it will most often remain the separate property of the inheriting spouse even though the inheritance took place during the marriage. (and thus won't be divided 50-50) The same holds true for gifts solely to one spouse from a third party during the marriage, it will remain that partie's separate property not subject to 50/50 split.

52. What if I had property before the marriage or attained property during the marriage through inheritance or gift from a third party, and the property grows in value during the marriage?

This can get rather complicated, but the easy answer is that if the property grows in value because of natural market forces or inflation, then no portion of the increased value will go to the other spouse. On the other hand, if for example the property involves a business, and the value of the business increases during the marriage because of the efforts of one or both parties, (or because of the contribution of marital assets) then that increased value may well be divided 50/50. The same example can be given for stocks or other assets. Although the stock or other asset may be the separate property of one spouse because it was attained prior to the marriage, or during the marriage through inheritance for example, if it can be shown that the efforts of either or both parties during the marriage led to an increase in value of the asset, then that increase in value may be divided 50/50.


53. What if my spouse is hiding or wasting assets or I don't know what assets there are?

You may be able to get an injunction stopping your Husband from touching assets and records can be subpoenaed to uncover what assets there are. Also, if you can show that your spouse wasted marital assets, you may be entitled to a credit for your portion of what was wasted when the marital assets are divided at the end of the case. Each party needs to fill out and sign a sworn financial affidavit. If your spouse does not lie about the assets, you will get a complete picture of finances through this and other means.

54. What if my spouse is committing adultery?

In general, the relevance of adultery is where you can show that they have spent marital funds (which you in general are entitled to half of) on the third party.

[I AM ALWAYS LIABLE]

My response:

StephenK - - the above, boiled down to it's essential elements, means that Florida is an "equitable division" State. But, in terms of our writer, it's really "off point."

The fact remains that our writer allegedly made a personal, undocumented loan, to her brother-in-law. Our writer's claim is only against him, and not her sister. For all we know, the "equities" of this matter would dictate that her claim would ONLY be against him, and not the sister. Remember, she made the loan to HIM, and not to her sister.

Now, perhaps in their Divorce, the sister would have an equitable right to a portion of the assets or profits of the trucking business, but as to the loan itself, that's only between our writer and the brother-in-law.

We don't know the situation of their marriage (sister and the brother-in-law) or how it ended and why.

IAAL

[JETX]

Stephenk:
I think you would find that the excerpts you provided would only apply to property and debts that were commonly owned....

In this case, the debt was incurred solely by the spouse.... and not jointly.

[JETX]

Damn!! IAAL and I are almost posting identical message on top of each other.

On that note, you won't believe the dream I had last night. I dreamed that you and I met by happenstance in California!! The rest of it was like a "Texas Chainsaw Massacre" story. Unbelievable!!!

[I AM ALWAYS LIABLE]

Originally posted by JETX
Damn!! IAAL and I are almost posting identical message on top of each other.

On that note, you won't believe the dream I had last night. I dreamed that you and I met by happenstance in California!! The rest of it was like a "Texas Chainsaw Massacre" story. Unbelievable!!!

My response:

Hilarious!

Seriously, when we "met" - - it was some sort of social gathering, and you were introduced to me by name. That took me aback, and immediately, I introduced myself to you by my "board name". You almost fell back yourself because THAT was proof positive to you who I am, and no one else would have known to say "IAAL".

In the dream, you were very tall - - about 6'6" - - dark hair and really thin. You were wearing a Texas style suit (like JR Ewing would wear).

Then, we wound up back at your home and trying to log onto FreeAdvice, but you had some sort of program on your computer that acted like a puzzle game, going through doorways, and secret passages, in order to get on the Internet. For some reason, we could never get the puzzle right, and kept going through the wrong passages.

That was it in a nutshell, and it was just really weird.

IAAL

[JETX]

Other than the height, being thin, and wearing a JR suit, you got me pretty well described!!

And sometimes my computer is pretty much like a puzzle!! And sometimes I do forget where the 'magic key' is located!!

As for the rest of it.... sounds exactly like MY dream!!

I always new that you could get flashbacks from that old "Angel Dust"!!