Personal Loan CA

Meg178 · Mar 13, 2006

What is the name of your state? CA.

Beginning in July 2005 a friend came to me asking if I could loan her money. She was adament that she would pay me back. At the time she did not have a job but was trying to get her business up and running. I paid her rent that month and other bills for her over the next few months. When she could no longer afford her apartment, her and her kids moved into my house for 3 weeks while in transition. I wrote a few checks to her and paid business expenses on her behalf. For a total of $5200.00.

She has continuious promised to pay me back. Every week she says "i'll pay you when my check arrives". She has made 9 appointments with me to bring me a payment. She canceled everytime. The one time I received a payment($37.00) towards the loan. I had to go get it from her (she couldnt make it to my house to make the payment). She agrees she owes me the money. I have an email from her stating she owes the money and she attached an itemized list. Her total is only $3300. The items she left off were all checks. I have the canceled checks that were made out to her. I did not write loan on the memo but she did include some of the checks in her list. In addition some of the checks, she made out to herself. She had access to signed checks (I was on vacation and left checks signed for my bills.) and made them to herself to cover her negative account balance.

Do I have a case in small claims in CA? (I already filed and served her)
What would be the best way to present my evidence?

She has tired to turn it into a personal attack. I only want to be paid back for loaning her money for her personal use and business needs.

dcatz · Mar 14, 2006

Q. Do I have a case in small claims in CA?

A. Since you've already filed and served, what were your plans, if the answer were no?

Yes, you have a case. A better case than most who loan money on an oral promise. You have a written acknowledgment of the greater part of the sum and extensions made at varying times and in varying amounts. That should help you persuade the trier of fact that the other checks were also part on an on-going series of "loans".

It's going to be your word against hers, if she suddendly decides to allege that some of the money were gifts. The key for you is preparation.

Have your records and cancelled instruments prepared for presentation in chronological order (use something like clear plastic binder pages into which you can insert them). Present the evidence and tell the story as you go. Finish with a typed re-cap and iremization.

The point I'm making is to not go in with a paper bag or box stuffed full and start a rambling, fumbling presentation. You'll only have about 10 minutes to present and prove your case to someone who is completely unfamiliar with it. The more organized you are, the easier it will be and the more likely that the judge will see you as organized and methodical when it happened.

Explain about the pre-signed checks and her access, but don't dwell on them (handwriting differences should speak for themselves) or anything else. Move from point to point and conclude.

Some of her testimony will differ from and perhaps contradict yours. Don't get sidetracked into arguments. Present the partial acknowledgement. Re-make your points with simple emphasis and make your points to the judge, not the defendant.

Meg178 · Mar 15, 2006

Personal loan CA.

dcatz said:
Q. Do I have a case in small claims in CA?

A. Since you've already filed and served, what were your plans, if the answer were no?

Yes, you have a case. A better case than most who loan money on an oral promise. You have a written acknowledgment of the greater part of the sum and extensions made at varying times and in varying amounts. That should help you persuade the trier of fact that the other checks were also part on an on-going series of "loans".

It's going to be your word against hers, if she suddendly decides to allege that some of the money were gifts. The key for you is preparation.

Have your records and cancelled instruments prepared for presentation in chronological order (use something like clear plastic binder pages into which you can insert them). Present the evidence and tell the story as you go. Finish with a typed re-cap and iremization.

The point I'm making is to not go in with a paper bag or box stuffed full and start a rambling, fumbling presentation. You'll only have about 10 minutes to present and prove your case to someone who is completely unfamiliar with it. The more organized you are, the easier it will be and the more likely that the judge will see you as organized and methodical when it happened.

Explain about the pre-signed checks and her access, but don't dwell on them (handwriting differences should speak for themselves) or anything else. Move from point to point and conclude.

Some of her testimony will differ from and perhaps contradict yours. Don't get sidetracked into arguments. Present the partial acknowledgement. Re-make your points with simple emphasis and make your points to the judge, not the defendant.

Thanks

As for if I did or did not have a case. I filed with the hopes I had enough information. As I was doing more research I found this forum. Which I greatly appreciate.

Thank you for your response and detailed information regarding the presentation and evidence.

Am I required to give the defendant a copy of the evidence I will be presenting? If so, does it need to be provided by a certain time before the hearing date?

An additional question arose over her personal property. Some of her clothing for her business is still at my house. She has said numerous times she was going to come get it. Again she has some excuse to why she can not make it. I requested in writting on 2/15/06 that I no longer wanted to be responisible for her belongs and that she needed to pick them up. I specified a time. She requested another time the next day and said someone or herself would be at my house to get the stuff. I agreed. AGAIN, no one showed up. It has now been 30 days. What are my options?

Ohreallynow? · Mar 15, 2006

Meg178 said:
Thanks

As for if I did or did not have a case. I filed with the hopes I had enough information. As I was doing more research I found this forum. Which I greatly appreciate.

Thank you for your response and detailed information regarding the presentation and evidence.

Am I required to give the defendant a copy of the evidence I will be presenting? If so, does it need to be provided by a certain time before the hearing date?

An additional question arose over her personal property. Some of her clothing for her business is still at my house. She has said numerous times she was going to come get it. Again she has some excuse to why she can not make it. I requested in writting on 2/15/06 that I no longer wanted to be responisible for her belongs and that she needed to pick them up. I specified a time. She requested another time the next day and said someone or herself would be at my house to get the stuff. I agreed. AGAIN, no one showed up. It has now been 30 days.

What are my options?

Are you asking about what your options are regarding the personal property?

Whether it has been abandoned?

Meg178 · Mar 16, 2006

Ohreallynow? said:
Are you asking about what your options are regarding the personal property?

Whether it has been abandoned?

Yes, I am asking about my options regarding the personal property.Has it property has been abandoned?

I also asked about the evidence for the small claims hearing. Am I required to provide the defendant all the evidence prior to the hearing? If so, when should I give it to her? The day of the hearing or before?

dcatz · Mar 16, 2006

As far as the "evidence" is concerned, you each will be given the opportunity to let the other review evidence the day of the proceeding. You don't have to serve copies in advance.

As far as the personal property is concerned, that's a trickier question. Two areas of California law spell out your rights and responsibilities and you might want to look at them yourself. Calif. Civil Code sect. 1965 and following sections explain in great detail your rights and responsibilities if you're a landlord or "bailee for hire" (meaning you were getting paid to store property) but, from your post, it would not seem that either of you regarded you as such (she and her family "moved in in transition"). If you agree, then you can't sell the property to reduce the debt.

CC sect. 2080 et seq. covers the duties of finders of unclaimed property. You're not required to take charge of it but, once you do (and you have), you become a "depository". (Sorry - kind of an ugly sounding term). In brief, you have the obligation to inform the owner, if known, and make restitution, less a "reasonable charge" for storing and preserving. If the property remains unclaimed for "a reasonable time" after notice to the owner, you have the obligation to turn any property worth $100 or more over to the local police or sheriff's department. That puts responsibility on law enforcement to try to give notice and return it to the owner. If the property still remains unclaimed after 90 days, you can claim anything worth $250 or less and you become the owner. (The police try to auction off the rest.)

The statute doesn't define "reasonable time", but I think you're safe at 30 days.

I know that it sounds involved, but your best bet may be to opt to give notice and then turn it over. I would advise against "holding it for ransom" or throwing it away (she may just sue you for the value).

You can find the Civil Code sections here:
http://www.leginfo.ca.gov/calaw.html

Ohreallynow? · Mar 16, 2006

dcatz said:
As far as the "evidence" is concerned, you each will be given the opportunity to let the other review evidence the day of the proceeding. You don't have to serve copies in advance.

As far as the personal property is concerned, that's a trickier question. Two areas of California law spell out your rights and responsibilities and you might want to look at them yourself. Calif. Civil Code sect. 1965 and following sections explain in great detail your rights and responsibilities if you're a landlord or "bailee for hire" (meaning you were getting paid to store property) but, from your post, it would not seem that either of you regarded you as such (she and her family "moved in in transition"). If you agree, then you can't sell the property to reduce the debt.

CC sect. 2080 et seq. covers the duties of finders of unclaimed property. You're not required to take charge of it but, once you do (and you have), you become a "depository". (Sorry - kind of an ugly sounding term). In brief, you have the obligation to inform the owner, if known, and make restitution, less a "reasonable charge" for storing and preserving. If the property remains unclaimed for "a reasonable time" after notice to the owner, you have the obligation to turn any property worth $100 or more over to the local police or sheriff's department. That puts responsibility on law enforcement to try to give notice and return it to the owner. If the property still remains unclaimed after 90 days, you can claim anything worth $250 or less and you become the owner. (The police try to auction off the rest.)

The statute doesn't define "reasonable time", but I think you're safe at 30 days.

I know that it sounds involved, but your best bet may be to opt to give notice and then turn it over. I would advise against "holding it for ransom" or throwing it away (she may just sue you for the value).

You can find the Civil Code sections here:
http://www.leginfo.ca.gov/calaw.html

Just a suggestion, you may want to consider yourself a "landlord" in hold of your last "tenant's" personal property if you cannot get ridl of the holdings of the personal property. In utilizing the link dcatz gave you.

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=5288918333+2+0+0&WAISaction=retrieve

This is ony a suggestion.

dcatz · Mar 16, 2006

Originally Posted by Ohreallynow?
Just a suggestion, you may want to consider yourself a "landlord" in hold of your last "tenant's" personal property

(Old dependable)

OP - Unless your friend left something like a Faberge egg - so valuable that you could recover all your loss and a huge amount more - it's a very bad suggestion. I thought that would have been clear. Read the statutes, if you must. Consider what you would be required to do as a landlord or bailee for hire to properly handle just her property.

Then consult your accountant about the implications of maintaining rental property (and the income that you never got), make sure your home doesn't have to re-zoned for commercial use (assuming that you own it and aren't on a lease prohibiting sub-leasing). And on and on. Of course I'm being factitious, but that's where the suggestion leads.

Ohreallynow? · Mar 16, 2006

dcatz said:
(Old dependable)

OP - Unless your friend left something like a Faberge egg - so valuable that you could recover all your loss and a huge amount more - it's a very bad suggestion. I thought that would have been clear. Read the statutes, if you must. Consider what you would be required to do as a landlord or bailee for hire to properly handle just her property.

Then consult your accountant about the implications of maintaining rental property (and the income that you never got), make sure your home doesn't have to re-zoned for commercial use (assuming that you own it and aren't on a lease prohibiting sub-leasing). And on and on. Of course I'm being factitious, but that's where the suggestion leads.

Ohreallynow?

If you take a gander down Real Estate lane, you might see that they argue over there about "guests" who stay even if they don't Pay being tenants or not.

They are always batting back and forth about how to get rid of someone even if a family member. If they have to Evict or if they can just lock them out. The prevailing winner is they are a tenant. If I read right this person put up the deadbeat for awhile, therefore could be deemed a landlord.

Do not keep on desparaging me dcatz. You are going against your grain.

I am not the neevel you think I am. So Back off unless I completely give the incorrect answer, then I will definitely say I am wrong!

Happy Trails · Mar 16, 2006

"A "Notice of Belief of Abandonment" must be mailed to the tenant's last known address and the tenant is given 18 days to claim the property. During this time period, the Landlord is obligated to store the property in a safe place, either in the rental unit or a storage facility. If the tenant shows up to claim the property, reasonable storage charges can be demanded, but it is usually not worth the Landlord's trouble to pursue the matter since most Landlords simply want to end all dealings with the tenant. Under no circumstances may the Landlord hold the tenant's property hostage by demanding that the tenant pay past due rent or other charges. This could trigger a lawsuit by the tenant for conversion (stealing) his or her property. Always take an inventory of the personal property and take pictures or a video tape of the items.

If the property appears to have a fair market value of less than $300, then it can be disposed of by the Landlord after the 15 or 18 day period. If the property is worth more than $300, the Landlord must auction the property through a public sale. The notice of the time, date and place of the auction must be published in a newspaper of general circulation once per week for two consecutive weeks. The auction can then take place five days or more after the last notice was published."

Information from this site: http://www.legalwiz.com/articles/caltlaw.htm

dcatz · Mar 16, 2006

Do not keep on desparaging me dcatz.

Oh hell, the smiley faces are back. I was hoping that changed.

I'm not disparaging you. The original post was about handling an oral loan agreement in SC court and I tried to respond to that.

You read the statutes as I suggested that the OP do. I infer that she might also have a couple of her friend's old dresses and maybe a couple of pairs of used tennis shoes sitting around and would like to have them off her hands. But, I told her that, if it's something of enormous value (left by a friend borrowing money and skating on debts), there are ways to get it that too.

This isn't Real Estate lane, and the issue isn't how to get rid of "tenants" (the friend is gone). With respect to the suggestion, Happy Trails explains some of the responsibilities. If there's a reason to jump through the financial and statutory hoops to qualify as a landlord, she'll follow your suggestion. If you have a reason why she should scale those hurdles, explain it to her and she just might.

I try to confine myself to advice relevant to the post and I think this gets far afield. But don't get upset. I don't think of you as a neevel; I don't even know what it is. (Although I may have used the term "gadfly" once, when you claimed to be "speaking in smiley" and interjecting without contibuting. And I did comment on your leaving that OP dangling, when you couldn't make up your mind what the answer should be - I did think that was irresponsible.)

And don't be sensitive. The only remark directed to you was in another thread:
https://forum.freeadvice.com/showthread.php?p=1316457

Ohreallynow? · Mar 16, 2006

dcatz said:
Oh hell, the smiley faces are back. I was hoping that changed.

I'm not disparaging you. The original post was about handling an oral loan agreement in SC court and I tried to respond to that.

You read the statutes as I suggested that the OP do. I infer that she might also have a couple of her friend's old dresses and maybe a couple of pairs of used tennis shoes sitting around and would like to have them off her hands. But, I told her that, if it's something of enormous value (left by a friend borrowing money and skating on debts), there are ways to get it that too.

This isn't Real Estate lane, and the issue isn't how to get rid of "tenants" (the friend is gone). With respect to the suggestion, Happy Trails explains some of the responsibilities. If there's a reason to jump through the financial and statutory hoops to qualify as a landlord, she'll follow your suggestion. If you have a reason why she should scale those hurdles, explain it to her and she just might.

I try to confine myself to advice relevant to the post and I think this gets far afield. But don't get upset. I don't think of you as a neevel; I don't even know what it is. (Although I may have used the term "gadfly" once, when you claimed to be "speaking in smiley" and interjecting without contibuting. And I did comment on your leaving that OP dangling, when you couldn't make up your mind what the answer should be - I did think that was irresponsible.)

And don't be sensitive. The only remark directed to you was in another thread:
https://forum.freeadvice.com/showthread.php?p=1316457

I know what thread it was, and you need to get over the fact that you think you have a sense of humour.

You grabbed onto the small claims part of this post , I gadded on to the personal property.

So Ohreallynow? dcatz fight, lay off me and just help the poster.

My smileys are on, I guess the forum realizes you don't have the use for them so have not enabled yours or you are just too tight to try them. I really respect your advice to the posters but you are really long-winded. You gave your opinion of me and I am giving it on you. I think you need to loosen up a bit without losing what integrity you have. Especially by picking on me??? A lot of posters do not finish up what they begin, nor do they even give good advice. Is it because I have a low post count? FORGIVE ME for not being a senior member with stupid one-liners.

I am not sensitive to what you say dcatz, just to hypocrisy.

With all my respect. [URL="http://www.carolmoore.net/4secretary/Gadfly.gif"]Ohreallynow?[/URL]

Meg178 · Mar 16, 2006

Did I miss something?

I guess I have to just deal with the personal property that the defendant of my small claims left at my house. I noticed her via message 0ver 30 days ago. The initial request was back in 12/05. I do not want to be responsible for her stuff. The total amount is above $4,000. I have inventoried all the items and took pictures.

If I return all the items to her at her ,current place of dwelling. Will it help in my small claims case? Or not really make any difference. I am wondering if I hold on to the items ( since she has not come to get them) not by ransom but due to her lack of response. Does it damage me?

The defendant is stricking out anyway possible. She even tried to damage my process server realationship with her ex husband.

I want my case to be a solid as possible. Please advice me on whatever it takes to make sure I am addressing the situations by what is lawful.

dcatz · Mar 16, 2006

Q. Did I miss something?

A. Nothing important

Well, $4K in goods is more than a couple of dresses and some tennis shoes. Don't know what the property is and, while it shouldn't hurt your case in an ideal world, yeah, I suppose there's a chance, if she claimed that she gave it to you in payment of the loan.

Before going further, is there anything that you want? That's not asked from a venal motive. I'd just like to know before making a suggestion.

And I have one other question: do you want to confront her if you return the goods or would to prefer to only see her in court?

dcatz · Mar 16, 2006

OP - You've left the site and I have other matters to attend to in the coming days.

If it were me (and you admittedly are not), I would try to eliminate everything that might adversely affect my case - that includes the possible defense of "property for payment"

I would deliver the property to the police/sheriff. You'll be asked to fill out an affidavit about the owner, how the property came into your possession etc. I would make sure that I got a copy of all paperwork and that I got a receipt that corresponded to my pictures and videotape.

Then, if the issues comes up at trial, you've done what statute required you to do, the property is in safekeeping, your record and the police record correspond, and she can go recover her property.

You run the risk that she claims there was more than you turned over, but you run that risk anyway, especially if you try to hand deliver personally and it ends up in an disagreement at the door.

I might suggest that you take it with you to court, but the court will not be pleased by what might look like a garage sale in the courtroom and the police are a safer place for custody. There will be only her and them, when she goes to take it back.

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