Promissory Note Breach of Contract

[bboy92]

What is the name of your state? Colorado.


In Sept of 2017 I loaned who was a friend at the time, $60k. We did the loan through a notarized promissory note, signed by myself, the debtor and the notary. The loan was to begin repayment in January 2018 and payments of 5K each month for 12 months till December of 2018 were to be made un-till the full 60k loan had been repaid. All of this was detailed in the promissory note along with reimbursement of legal fees if the promissory note was broken. The note was not paid and I only received a total of $1000 in back in April of 2018. He claimed all year (2018) that he was trying to get a home equity line of credit (HELOC) to just go ahead and pay the loan all at once. This never happened and I have only received $1000 of the total 60k. I formally mailed a letter notifying he was in default in June of 2018. At this point I want to know what the statue of limitations are for this type of debt in Colorado and also what exactly must I do to sue. I'm planning to do "pro se", because an attorney I spoke to wants a $3000 retainer just to have him served a court papers that he's being sued and I'm sure it will cost even more to have the attorney appear in court on my behalf. I know the guy has money because he is the chief operating officer with a local construction company, has a mortgage on a home valued at $400k and in August of 2018 bought himself a new 2018 GMC pickup valued around $65k, I assume he financed the truck. Also the money he borrowed was supposedly to go towards a different construction company startup that turned out he never started and used the money for who knows what. So any advice that can be given on what exactly the steps I need to take going forward would be greatly appreciated. Thank you

 

[PayrollHRGuy]

The SoL is 6 yrs. §13-80- 103.5

Telling you exactly what to do is going to be tough. The first thing any lawyer would do would be to look at the contract. We can't do that.

I'd certainly risk $3K or more if $60k was on the line.

 

[bboy92]

The SoL is 6 yrs. §13-80- 103.5

Telling you exactly what to do is going to be tough. The first thing any lawyer would do would be to look at the contract. We can't do that.

I'd certainly risk $3K or more if $60k was on the line.

Im not so much looking for "what to do" as I already know I just need to simply sue him. I just want to know the specific generic steps I must do to open this type of law suit against the debtor. ie what specific court papers must I file, etc. Thank you so much for your time.

 

[PayrollHRGuy]

While I'm not saying you can do it yourself the things you are asking for information on is what lawyers spend years to learn in law school. There is a reason there are simplified small claims courts and this isn't a small claim. But hang around. Another member may pop in with more help. But to my knowledge, there are no Colorado lawyer on this forum and if there are they aren't your lawyer.

 

[Zigner]

Im not so much looking for "what to do" as I already know I just need to simply sue him. I just want to know the specific generic steps I must do to open this type of law suit against the debtor. ie what specific court papers must I file, etc. Thank you so much for your time.

You need an attorney.

And, to comment on what you said earlier about him having money: Everything you listed is indicative of someone getting further in to debt, not of someone with a lot of extra cash.

 

[bboy92]

While I'm not saying you can do it yourself the things you are asking for information on is what lawyers spend years to learn in law school. There is a reason there are simplified small claims courts and this isn't a small claim. But hang around. Another member may pop in with more help. But to my knowledge, there are no Colorado lawyer on this forum and if there are they aren't your lawyer.

To go further into it I actually retained an attorney last year and paid him $3000. All he did was write up a complaint for the court (that was never filed with the court) and he mailed a demand letter to the debtor (with the attached complaint) demanding payment and informing the note was in default. The attorney then requested and additional $3000 added to retainer to have the debtor served and to actually file the complaint with the court. I told him I would proceed on my on as I figured I could just file the complaint he wrote for me. obviously it would be better to have him do it. However at that rate id likely spend over 10k after court appearances by the attorney. I totally understand your advice, but I'm just looking to know how to file this already written complaint pro se with the court. Thank again for everyones time and advice

 

[adjusterjack]

I just need to simply sue him

There is nothing simple about suing somebody for money. Even if it was simple, collecting is likely to be even more difficult, especially from somebody who is in debt up to his ears.

I just want to know the specific generic steps I must do to open this type of law suit against the debtor. ie what specific court papers must I file, etc

Step 1 - Draft a complaint. Oh, I see you already have one.
Step 2 - File it with the court and serve it on the defendant with a summons. I would think your local court would at least have instructions for filing the complaint and issuing the summons.
Step 3 - Wait the appropriate amount of time for him to file an answer. 20 days probably, but you can look that up in your state's Rules of Civil Procedure which can also be found on the internet. If he files an answer go to Step 4. If he doesn't file an answer file a motion for a default judgment.
Step 4 - Engage in discovery. You can look that up on the internet.
Step 5 - Trial.
Step 6 - Judgment.
Step 7 - Try to collect and hope he doesn't file bankruptcy.

 

[Zigner]

What was the loan for?

 

[Zigner]

...at that rate id likely spend over 10k after court appearances by the attorney.

Assuming your agreement was properly drafted, you should be awarded attorney's fees.

 

[bboy92]

What was the loan for?

The promissory note did not specifically outline what the loan was to be used for, however he verbally (non binding) said it was going to be used for a construction business startup.

 

[PayrollHRGuy]

To go further into it I actually retained an attorney last year and paid him $3000. All he did was write up a complaint for the court (that was never filed with the court) and he mailed a demand letter to the debtor (with the attached complaint) demanding payment and informing the note was in default.

Then you are a step ahead. You should have a copy of that complaint. You could make a copy that is up to date.

The promissory note did not specifically outline what the loan was to be used for, however he verbally (non binding) said it was going to be used for a construction business startup.

I'll bet he bought that $60K truck.

 

[bboy92]

"Step 2 - File it with the court and serve it on the defendant with a summons. I would think your local court would at least have instructions for filing the complaint and issuing the summons."




Thats all I really need to know is what specific court paper to file to get my all ready written complaint filed with the court. Hoping to hang around here till someone might know that specifically for Denver/Colorado courts. Thanks

 

[PayrollHRGuy]

Update the complaint the lawyer charged your $3K for.

 

[bboy92]

Update the complaint the lawyer charged your $3K for.

Thats exactly what I will do, I have a copy of it on my computer. I just need to know what to ask for when I walk into the court to file it formally. I already know the process to have him served the court filings once I figure out how the process to get them into the court.

 

[Zigner]

Everything you need to know: https://www.courts.state.co.us/Self_Help/morethan25000/