who do i take to court?2

[mbadillo351]

What is the name of your state? california

back in dec 06, a co-worker, maile, and I lent another co-worker, celeste, $10,000, $5000 from maile and $5000 from me. we made a contract between the lenders (maile and I) and the borrower (celeste) that it was a 6 month loan with 11.9% interest and she had to make monthly payments. celeste made her monthly payments of $864.00 to both of us on time for five month, in which time maile and I became business partners.

celeste made the payments to us in the form of a check, which was made out to maile and sometimes to myself, depending on who was in the area to go pick up the payment.

since we were business partners, we split the the payment once it was recieved so she will get her half and I woud recieve my half.

our partnership ended. on the sixth month, the remainder of the loan was paid in the way of a certified chack payable only to maile. I tried to contact maile but she is unreachable. her husband is the one who answers the phone and tells me that maile does not have my half of the loan. when i contacted celeste, she produced a copy of the certified check that was made out to maile for $6869, the remainder of the loan. maile sent a check back to celeste for $841.00, stating that celeste over paid.

so do i take celeste to court because she has not given me my half of the final payment, only maile

or do i take maile to court because she has my half of the final payment and does not want to give it to me?

thanks in advance for your responses.What is the name of your state?

 

[dcatz]

Duplicate post: https://forum.freeadvice.com/showthread.php?t=367359
Delete one or the other and you can probably get a response.

 

[JETX]

Duplicate post:

Don't do 'duplicate post' to BOTH posts....

 

[JETX]

so do i take celeste to court because she has not given me my half of the final payment, only maile

At the least, sue 'celeste' since you had a separate agreement with her and her obligation for repayment was to YOU.

Or, if you want to make sure to cover all bases, sue both.

 

[dcatz]

(Imagine, I never realized that, grammatically, “one or the other” was synonymous with “both”.)

Seemingly, this post has been selected by default, so I’d suggest that you sue both. It’s an unfortunate and inefficient way to proceed, and you face the very real possibility that, when one or the other (and that doesn’t mean “both”) is found not to be culpable (because they can’t both be telling the truth), that one will seek to recover costs.

But it seems to me that the problem with not suing both is that what you really need is the right to develop evidence by way of what’s called discovery, and you can’t do that in Small Claims. You need Maile’s sworn testimony that she didn’t get the final payment, and you need Celeste’s testimony that she gave it to Maile, and you need a copy of the certified and negotiated check.

If you just sue Celeste and she brings the check to Court, the likelihood is that you lose, because you and Maile are calling yourselves partners, your post doesn’t say that Maile had to give separate checks to each of you and, in fact, you established a uniform course of conduct whereby she gave a check to whichever of you was convenient, and you accepted that manner of remittance and split the payments. If it can be argued that her obligation was for repayment to YOU (personally), it can also be argued that you waived that.

So where are you this time, if a judge hears that story, sees a check and decides that Celeste did what always had been done and had been accepted without objection by the parties? You’re suing Maile. Might as well do it all at once.

You could sue Celeste and subpoena Maile as your witness, but that doesn’t change the foregoing scenario and, if Maile doesn’t show, civil contempt in Small Claims isn’t worth much.

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P.S. Now that you've gotten a response in this post, delete the other. You knew it was a duplicate and even marked it "2".