Counterclaim on small claims case.

[amyh76]

What is the name of your state (only U.S. law)? Nebraska

We have a friend who lent us $1200 back in 2011, we have paid her some back not all and we are willing to pay what we feel we owe her. Before she lent us the money she lived with us and owed us back rent and I also took a cat of hers to the vet and she was to pay us back for the vet bill, but she never did. She is threatening to take me to small claims court.

I have a few questions, if I am sending her payments monthly can she still take me to court? I have a text from her saying when she lent us the money she was paying the back money she owed us, but now she is saying it's past the statue of limitations (the cat visit was 5 years ago but I have all the bills pertaining to it). Can I use those bills and a text as proof that we don't owe her as much as she says we do.

If there was no written agreement between us on when and how much to pay can she charge us interest now after the fact even though she never said it to begin with?

Also we just purchased a home and she said if she files a judgement against us it will automatically put a lien on our house loan.

 

[Willlyjo]

What is the name of your state (only U.S. law)? Nebraska

We have a friend who lent us $1200 back in 2011, we have paid her some back not all and we are willing to pay what we feel we owe her. Before she lent us the money she lived with us and owed us back rent and I also took a cat of hers to the vet and she was to pay us back for the vet bill, but she never did. She is threatening to take me to small claims court.

I have a few questions, if I am sending her payments monthly can she still take me to court? I have a text from her saying when she lent us the money she was paying the back money she owed us, but now she is saying it's past the statue of limitations (the cat visit was 5 years ago but I have all the bills pertaining to it). Can I use those bills and a text as proof that we don't owe her as much as she says we do.

If there was no written agreement between us on when and how much to pay can she charge us interest now after the fact even though she never said it to begin with?

Also we just purchased a home and she said if she files a judgement against us it will automatically put a lien on our house loan.

Actually, you needn't file a counter claim at all. If and when you get served to go to small claims, just take what you have (if you have it) to show that she owed you for back rent and a vet bill and also take documentation showing that you are making monthly payments to her. This should all lessen any possible judgement she may be able to get against you. In fact, she may not be able to get a judgement against you.

 

[OHRoadwarrior]

Soooo, she gave you $1200 of which X amount was to pay for the prior vet bill and rent she owed you and the remaining balance was a loan for which you have made payments on? If that is your side of the oral contract, which is invalid anyway, since it is over $500 and not in writing to cover it, simply pay her the balance owed and tell her to pound sand.

http://nebraskalegislature.gov/laws/ucc.php?code=2-201

 

[Zigner]

Actually, you needn't file a counter claim at all. If and when you get served to go to small claims, just take what you have (if you have it) to show that she owed you for back rent and a vet bill and also take documentation showing that you are making monthly payments to her. This should all lessen any possible judgement she may be able to get against you. In fact, she may not be able to get a judgement against you.

Hogwash - it's beyond the 4 year statute of limitations.

 

[Willlyjo]

Hogwash - it's beyond the 4 year statute of limitations.

What is beyond the SOL? A counterclaim? I agree, so what is hogwash? Didn't you read my advice that the OP needn't file a counterclaim? Also, the OP can still be taken to court whether there is a legitimate claim against her or not. Based on that, my advice was accurate. Neither you or I know that the lady who lent the money wouldn't try to frame a claim within the SOL.

 

[Zigner]

What is beyond the SOL? A counterclaim? I agree, so what is hogwash? Didn't you read my advice that the OP needn't file a counterclaim? Also, the OP can still be taken to court whether there is a legitimate claim against her or not. Based on that, my advice was accurate. Neither you or I know that the lady who lent the money wouldn't try to frame a claim within the SOL.

The OP will not be able to collect on the items that are beyond the SOL. Your information is misleading and borders on useless - as usual.

 

[amyh76]

What is beyond the SOL? A counterclaim? I agree, so what is hogwash? Didn't you read my advice that the OP needn't file a counterclaim? Also, the OP can still be taken to court whether there is a legitimate claim against her or not. Based on that, my advice was accurate. Neither you or I know that the lady who lent the money wouldn't try to frame a claim within the SOL.

So would the judge take my documentation, (bill from the vet and spreadsheet showing what she paid and didn't pay on past rent) which is over 5 years old, along with the text which is from this week stating when she gave me the money she was paying me what she owed me (vet & past rent) and lending me money.

One more thing, one of the check payments I gave her she said if I paid $100 instead of $50 that time she would take off $200 instead of $100 now she is saying she didn't say that, but in the memo field of the $100 check it says $200 paid $400 left which looks to be her writing and not mine. The 2's on the memo line don't match the 2's I wrote in the date. So much of this is just she said she said, but I do have more documentation, cashed checks I wrote her, vet bills that are in my name but clearly say the cat was hers and I was taking him in as a favor and also I have the text message string with her agreeing to the smaller amount based on what she owed me.

What about the lien against the house loan if she wins is that true? Or the interest?

 

[Willlyjo]

The OP will not be able to collect on the items that are beyond the SOL. Your information is misleading and borders on useless - as usual.

Hmmmm...The OP would merely use such items as evidence thus showing that the claim against her is excessive. Understand?

 

[latigo]

What is the name of your state (only U.S. law)? Nebraska

We have a friend who lent us $1200 back in 2011, we have paid her some back not all and we are willing to pay what we feel we owe her. Before she lent us the money she lived with us and owed us back rent and I also took a cat of hers to the vet and she was to pay us back for the vet bill, but she never did. She is threatening to take me to small claims court.

I have a few questions, if I am sending her payments monthly can she still take me to court? I have a text from her saying when she lent us the money she was paying the back money she owed us, but now she is saying it's past the statue of limitations (the cat visit was 5 years ago but I have all the bills pertaining to it). Can I use those bills and a text as proof that we don't owe her as much as she says we do.

If there was no written agreement between us on when and how much to pay can she charge us interest now after the fact even though she never said it to begin with?

Also we just purchased a home and she said if she files a judgement against us it will automatically put a lien on our house loan.

Interest? Not sure. Section 45-102 of the Nebraska Revised Statutes fixes interest after 9/01/83 at 6% per annum.

Yet in Moore v. Schank, 148 Neb. 228, 27 N.W.2d 165 (1947) the Nebraska Supreme Court ruled that statutory interest was not available to the creditor unless provided by contract. And I cannot say whether or not that case still stands as the Nebraska statutes have been reworked several times since l947.

As far you pleading the cat vet bill as a counterclaim, the four-year statute of limitations (NRS Sec. 25-206), if raised as an affirmative defense, would apply defeating it.

However, if as a condition to your purchase of the automobile it was agreed that you would be given credit against the price for what the woman owed you, then in your answer to any claim she makes you should raise that issue as an adjustment reducing her claim accordingly. This way the statute of limitations would not come into play.

Lien a future mortgage loan? Uh uh!

Of course any money judgment against you could be recorded as a lien upon any real property owned or acquired in the future. But such would be subordinate to a prior recorded purchase money mortgage.

It seems to me that this matter could be amicable resolved. Have you tried? Lawsuits are miserable at best and for all involved.

 

[Zigner]

Hmmmm...The OP would merely use such items as evidence thus showing that the claim against her is excessive. Understand?

I understand what you are saying and you are wrong.

 

[Willlyjo]

So would the judge take my documentation, (bill from the vet and spreadsheet showing what she paid and didn't pay on past rent) which is over 5 years old, along with the text which is from this week stating when she gave me the money she was paying me what she owed me (vet & past rent) and lending me money.

One more thing, one of the check payments I gave her she said if I paid $100 instead of $50 that time she would take off $200 instead of $100 now she is saying she didn't say that, but in the memo field of the $100 check it says $200 paid $400 left which looks to be her writing and not mine. The 2's on the memo line don't match the 2's I wrote in the date. So much of this is just she said she said, but I do have more documentation, cashed checks I wrote her, vet bills that are in my name but clearly say the cat was hers and I was taking him in as a favor and also I have the text message string with her agreeing to the smaller amount based on what she owed me.

What about the lien against the house loan if she wins is that true? Or the interest?

In view of the fact you didn't have any type of written agreement concerning the loan that was given you, it would be very hard for you to get a judgement against you based on a verbal agreement made 3 years ago. The fact you are making payments on a monthly basis and the fact you have evidence showing any possible claim against you would probably be excessive, shows it is highly unlikely that there would be a judgement against you.

As far as a lien...if you should get a judgement against you, the holder of such judgement could (among other things) place a lien on your home as an option to recover what you owe. But under the circumstances, it is very unlikely that that would happen. Even if your friend was able to miraculously secure a judgement against you, the amount would be so small that you would be able to make payments to pay it off, thus avoiding any consequences such as a lien on your home.

 

[amyh76]

Interest? Not sure. Section 45-102 of the Nebraska Revised Statutes fixes interest after 9/01/83 at 6% per annum.

Yet in Moore v. Schank, 148 Neb. 228, 27 N.W.2d 165 (1947) the Nebraska Supreme Court ruled that statutory interest was not available to the creditor unless provided by contract. And I cannot say whether or not that case still stands as the Nebraska statutes have been reworked several times since l947.

As far you pleading the cat vet bill as a counterclaim, the four-year statute of limitations (NRS Sec. 25-206), if raised as an affirmative defense, would apply defeating it.

However, if as a condition to your purchase of the automobile it was agreed that you would be given credit against the price for what the woman owed you, then in your answer to any claim she makes you should raise that issue as an adjustment reducing her claim accordingly. This way the statute of limitations would not come into play.

Lien a future mortgage loan? Uh uh!

Of course any money judgment against you could be recorded as a lien upon any real property owned or acquired in the future. But such would be subordinate to a prior recorded purchase money mortgage.

It seems to me that this matter could be amicable resolved. Have you tried? Lawsuits are miserable at best and for all involved.

I am trying to agree to an amount that is fair to both of us. She hasn't even filed the claim yet and keeps going back on forth on what she says we owe. I have this all detailed in text. I figured if I just start sending her checks via certified mail by the time if and when she does file a claim the amount I owe would be down to almost nothing. Is there a minimum amount in small claims court? I know there is a max.

 

[Zigner]

I am trying to agree to an amount that is fair to both of us. She hasn't even filed the claim yet and keeps going back on forth on what she says we owe. I have this all detailed in text. I figured if I just start sending her checks via certified mail by the time if and when she does file a claim the amount I owe would be down to almost nothing. Is there a minimum amount in small claims court? I know there is a max.

No, there isn't a statutory minimum.

 

[Willlyjo]

I understand what you are saying and you are wrong.

Read Latigo's post and/or have someone properly interpret it for you.

 

[amyh76]

Read Latigo's post and/or have someone properly interpret it for you.

So basically I can't do a counter claim because of the time frame on the bills, but if I take it to court if she does file a claim. I can say that I owe her less because of it?