Loan is now a gift apparently

What is the name of your state? CA

It's a long story so I will try and keep it simple.

I live with my long term girlfriend. In February of this year I had an affair with a neighbor. She was unemployed but had just been offered a job which required her to have a car to make deliveries and get her child to a childminder. Unfortunately her current car had broken down and was thought to be unrepairable (without throwing crazy money at it)..

She had just been left by the father of her child (who she claimed was not paying her money for the child - which I later discovered to be a lie), had been unemployed for years (he paid for everything) so could not obtain credit. In short she was desperate.

A mutual friend of ours (another neighbor) had a car for sale and she asked me to loan her the money so she could purchase the car and accept the job. She said her employment would enable her to repay me. The seller of the car is witness to this.

Given the circumstances (the affair) it did not seem appropriate to get anything in writing as I thought she seemed genuine, she was in an emotional state and I regarded myself as a good judge of character. Also I did not want a piece of paper lying around stating that I had loaned this money in case it were found by my girlfriend. I transfered the money direct from my account to hers, no cash was given.

The affair was discovered in June when my girlfriend found messages on my cellphone. We agreed to stay together thus ending the affair.

Upon hearing this I received many abusive messages from the other woman and after giving her a few days to calm down I inquired as to when she intended to begin repaying the loan. Her reply was not pleasant and made it clear she now had no intention of repaying me.

At this time I was also told that she owed hundreds to the childminder and was refusing to pay, even though there is a signed contract. Naturally if she wasn't paying the childminder when there is a signed contract I thought there was no way she was ever going to pay me, no matter how much we discussed it.

I posted a very reasonable and polite letter through her door outlining how much she owed me and for what and offered her the chance to pay the money in installments.. at a rate of whatever she could afford. The last line warned her that if we could not come to an agreement I would be forced to seek legal advice.

It was no shock that she ignored the letter so I began small claims proceedings.

I have now seen her defence and her statement. She scribbled a few lines saying that the money was a gift and that she ended the relationship in May. Also adding in that I had been sending her nasty and harrassing letters, all of which is not true.

She says in her defence "I had assumed the money was a gift when our relationship was good", but in her statement she quotes me as saying I told her she didn't have to repay me. She did not mention this in her initial defence.

The truth is I repeatedly told her "there is no rush to repay me".. but she seems to have now interpreted this as something else due to me staying with my girlfriend.

What is the probability of someone giving someone they are seeing 'on the side' half a months salary after knowing them for 2 weeks?.. because that is what she is claiming happened. I guess it does happen somewhere but it must be seen as unlikely surely?

She has provided no evidence to support her claim except for a couple of paragraphs of her own lies which looks like she literally took 5 minutes to write it.

Her defence also differs from her statement in that now she only received one letter from me, not many (as I questioned it in my statement)... also on the same subject, after 7 weeks of no contact with her she started sending messages to my phone out of the blue telling me to stop knocking on her door and that I should drop this rubbish.. as I had not been near her house and worried that she might falsely try and involve the police to back up her claim I got the police involved myself and they told her to stop harrassing me.



My evidence:

- My statement

- A copy of the letter I posted through her door asking to come to an agreement.

- A statement from the seller of the car saying that he knew she was borrowing the money from me as he was present when the verbal contract was made and that she had told him she was going to repay me in subsequent conversations.

- A statement from the childminder saying that she too is pursuing small claims action against the defendant for the non payment and that the defendant had told her she had to borrow the money for the car and therefore didn't have any money to pay the child minding fees. (I was concerned about including this statement as it might be seen as mud slinging.. but I felt it very relevant to my case as it is evidence of her inclination to ignore debts, even if under a contract)

- A statement from my girlfriend saying that she knew the money for the car had been borrowed, but she did not know it was me who had loaned the money. She had become good friends with the defendant during the course of the affair so the defendant told her everything *edit - not quite everything obviously (maybe seen as a biased witness?)

- A letter from the bank showing the direct money transfer from my account to hers.


I realize my mistakes (the affair) and to be honest cannot believe I risked what I have.. but if you can ignore that for now and judge me on the loan, do I have a good chance of getting my money back based on the evidence I have?

Thanks for any advice.

In addition to the above I also hope to try and discredit her for lying in her defence.

She states that she received many nasty and distressing messages to her phone to which she did not reply.. but I have many replies stored in my phone.. one of which she is being pretty hostile for telling my girlfriend of the affair and another which is asking about my letter.

I guess my question here is do text messages on a cell phone bear any weight in court?

Sorry its so long.. but just wanted to give the full story.

And just how much $$$$ are we talking about?

$1200 ...............................

Given the circumstances (the affair) it did not seem appropriate to get anything in writing as I thought she seemed genuine, she was in an emotional state and I regarded myself as a good judge of character [ quote ]

You regard yourself as a good judge of character ?
You cheat,you take advantage of a neighbor in an emotional state , Etc,Etc.

You know what you gave her the money for . Why didn't you just go out and pay a lady of the night ?

Huh !! Character ??

I see your point (vaguely), but we had already been seeing each other for 2 weeks, I did not need to pay her to sleep with me. I felt sorry for her current situation (2 weeks into the affair) and I wanted to help her by loaning her the money for the car.

Yes I do regard myself a good judge of character normally, I made a mistake. Both with my actions (cheating) and my judgement of her. With hindsight I was probably very naive to think she would repay if the relationship ended before she had repaid me.

I am sure she would also agree she didn't sleep with me in the hope of getting $1200 for a car in 2 weeks time which she didnt even know was going to break down. The loan occured because she needed transport after her own failed.

The emotional state was because her car broke down, 2 weeks after we got together. I did not take advantage of anyone, she came after me.

Thanks for your input tho

I was probably very naive to think she would repay if the relationship ended
[ quote ]

I did not take advantage of anyone.She came after me . [ quote ]

(if) ??#1)
So your intent was to keep the relationship going for as long as possible .

#2) She came after you !! Of course she did , and you couldn't resist .
Sure you did,you took advantage of the opportunity to have sex on the side for as long as you could , weather you want to admit it or not , of course you won't ,it's all her fault .Oh maybe yours a tiny bit .

No you didn't come right out and pay her for it, but you did it in a subtle way, and now your pissed and want to take advantage of her some more .

Ya know what a cop told a Friend of mine once ? the landlord kept opening the Friends apt. door with his key, and jumped in bed with her in the morning w/o her consent. The cop told him if he did it one more time he'd slap the cuffs on him personally.

That's taking advantage of a person .

So your intent was to keep the relationship going for as long as possible. [ quote ]

At the time I wanted to continue it, otherwise I would have ended it before it was discovered by my girlfriend. As to when or how it would have ended, I cannot say.

She came after you !! Of course she did, and you couldn't resist. [ quote ]

I could have resisted, I chose not to.

Sure you did, you took advantage of the opportunity to have sex on the side for as long as you could, weather you want to admit it or not, of course you won't, it's all her fault. Oh maybe yours a tiny bit. [ quote ]

The fault was with us both equally. She knew I had a girlfriend just as much as I did. I took an advantage of an opportunity and if I took advantage of anyone, it was my girlfriend.. not the other woman as you were suggesting in your first post.

No you didn't come right out and pay her for it, but you did it in a subtle way, and now your pissed and want to take advantage of her some more. [ quote ]

I did not take advantage of her. I loaned her money for a car which she needed desperately. If you want to interpret that as her sleeping with me for 2 weeks on credit until she got the car which she didn't yet know she needed.. its a weird one!.. but an opinion you are entitled to.

Ya know what a cop told a Friend of mine once ? the landlord kept opening the Friends apt. door with his key, and jumped in bed with her in the morning w/o her consent. The cop told him if he did it one more time he'd slap the cuffs on him personally. [ quote ]

I don't see how this is relevant at all. Nothing was done without consent.

I am asking if anyone thinks I have a chance of getting my money back based on the evidence I have, you are not addressing this question but again thanks for your input

To answer your question legally . File a small claims action. At the same time file a request for a subpoena for her bank records around the months of the transfer from the bank .

With your bank record of transfer, and with her bank record of deposit of the transfer , go to court and state your case .

I assumed you had read all of my post? (sorry it was long)

If you had read it, you would know that I have already begun small claims proceedings against her. She does not deny she received the money, she openly admits it. It is the nature of the money transfer which is in dispute, gift or loan.

Do you think the testimony of the car vendor carries any weight? He was there when she agreed to the verbal contract and is prepared to say so in court. Do you think text messages to a cell phone carry any weight? Do you know of any similar cases and if so, what was the outcome?

Beginning to think you just saw the word 'affair' and jumped down my throat!

Again.. thanks

abcdef123456 said:

If you had read it, you would know that I have already begun small claims proceedings against her. She does not deny she received the money, she openly admits it. It is the nature of the money transfer which is in dispute, gift or loan.

Do you think the testimony of the car vendor carries any weight? He was there when she agreed to the verbal contract and is prepared to say so in court. Do you think text messages to a cell phone carry any weight? Do you know of any similar cases and if so, what was the outcome?

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This should help:
CALIFORNIA CODES
EVIDENCE CODE
SECTION 620-624

620. The presumptions established by this article, and all other presumptions declared by law to be conclusive, are conclusive presumptions.

622. The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.

623. Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.

Thanks I think I can almost understand some of that.

I am trying to apply these codes to my situation but not doing too well..

Does 622 mean a text message is proof that she contacted me and is therefore lying in her defence?

Does 623 mean her conduct which led me to loan her the money? I can't say if she deliberately misled me because her change of story was triggered by us being discovered and me not leaving my girlfriend for her.

She lost me = she wanted revenge = refuse to pay back money

I find law fascinating.. I don't think I will lend money again without the signed agreement being recorded, co-signed, filmed and sent by recorded delivery to my house!

abcdef123456 said:

Thanks I think I can almost understand some of that.

I am trying to apply these codes to my situation but not doing too well..

Does 622 mean a text message is proof that she contacted me and is therefore lying in her defence? Yes it could mean that and what other written documents do you have? You have several.

Does 623 mean her conduct which led me to loan her the money? I can't say if she deliberately misled me because her change of story was triggered by us being discovered and me not leaving my girlfriend for her. In part, she mislead you as to her situation so as to gain your sympathy and thus the loan. Why it changed from a loan to a gift is another issue, one for her to try to prove, not you. The fact that you have a witness in the person who sold the car is witness to both your intents at that time that it was a loan and that she intended to repay it. Also the same thing holds true for her dealings with her childcare provider, in both cases, she made contracts which each of you in good faith, and her intent was to pay for services or repay the loan. So your testimoney can help the case for the childcare provider as well.

She lost me = she wanted revenge = refuse to pay back money This may be what she did, but it was not her intent or what she conveyed when she convienced you to give her the loan.

I find law fascinating.. I don't think I will lend money again without the signed agreement being recorded, co-signed, filmed and sent by recorded delivery to my house!

Click to expand...

Read up on the legal term ESTOPPEL

ESTOPPEL - (estopped) A bar which precludes someone from denying the truth of a fact which has been determined in an official proceeding or by an authoritative body. An estopple arises when someone has done some act which the policy of the law will not permit her to deny.

In certain situations, the law refuses to allow a person to deny facts when another person has relied on and acted in accordance with the facts on the basis of the first person's behavior.

*******

I might be being totally dumb but am still confused.. does this help me or hinder me

ahh "failure to take legal action until the other party is prejudiced by the delay".. this might have some relevance..

All I can say to this is that I was unaware legal action was required until after the event.