A Letter of Demand of Gifted Money

[quincy]

BTW how much $ is this gift or loan or whatever all supposedly about.

Vlnaes2 has so far nicely avoided answering that question.

 

[Shadowbunny]

Vlnaes2 has so far nicely avoided answering that question.

Which gives me the squicky feeling that the checks weren't for wages.....

 

[HRZ]

How long ago did this help gifting or loans or whatever begin ? And about when did you stop receiving funds ?

 

[quincy]

Which gives me the squicky feeling that the checks weren't for wages.....

The money could possibly be money for services rendered (whatever the services might be) but, yes, it is looking more like a loan based strictly on Vlnaes2's reluctance to disclose the amount of money said to be a gift.

 

[adjusterjack]

So what does that have to do with the plaintiffs standard of proof? How does this affect the plaintiffs requirement of proving by a preponderance of the evidence that this was a loan? In fact, using your citation the plaintiff wouldn’t even be required to anything other than the payments were made and to state they were loans. The obligation then falls upon the defendant to prove they were loans.

It's not that simple. Read the entire case decision for an explanation. It's a fascinating study of the loan vs gift question:

https://scholar.google.com/scholar_case?case=17181832853774440041&q=barnes+v+michalski&hl=en&as_sdt=4,14

 

[HRZ]

But a oral contract /loan covering more than one year to perform may run into enforcement problems under statute of frauds ?

 

[quincy]

But a oral contract /loan covering more than one year to perform may run into enforcement problems under statute of frauds ?

No.

 

[justalayman]

It's not that simple. Read the entire case decision for an explanation. It's a fascinating study of the loan vs gift question:

https://scholar.google.com/scholar_case?case=17181832853774440041&q=barnes+v+michalski&hl=en&as_sdt=4,14

I guess litigator 22 shouldn’t have made it that simple then but if there is a presumption it is a loan barring proof otherwise, the op is now faced with proving the money wasn’t a loan.

 

[quincy]

I guess litigator 22 shouldn’t have made it that simple then but if there is a presumption it is a loan barring proof otherwise, the op is now faced with proving the money wasn’t a loan.

Right. That will be necessary. Litigator quoted an appropriate part of the appeals court case I cited earlier that indicates that.

There is a legal presumption that the money was a loan. Vlnaes2 will need to show otherwise.

 

[HRZ]

Interesting case....and OP best come up with some evidence that the sums were gifts....otherwise the presumption of a loan may hold up.

 

[quincy]

Exactly. That is what Litigator said a page ago.

 

[HRZ]

The OPs comment about check cashing is confusing ...DId professor cash his own checks and give OP cash or were checks to OP and she cashed them ?

Still have major problem of presumption funds were a loan ...

 

[HRZ]

The OPs comment about check cashing is confusing ...DId professor cash his own checks and give OP cash or were checks to OP and she cashed them ?

Still have major problem of presumption funds were a loan ...

COrrection
...Op covered it earlier ..checks were to her.

 

[quincy]

Yes. The checks were to vlnaes2.

The money is presumed a loan because the professor gave money to vlnaes2, vlnaes2 accepted the money, and vlnaes2 is not related to the professor. The law presumes loan (read the case linked to on page 2).

Absent any written contract or expressed terms of repayment, the court can provide loan repayment terms, as justalayman noted earlier (pay on demand or pay within a reasonable amount of time).

It is because, absent express payment terms, the loan potentially could be paid back all at once that the statute of frauds is not a factor.

Once again, it would be nice to know how much money was given to vlnaes2 by the professor.

At any rate, it appears vlnaes2 will be left with the task of proving with clear and convincing evidence that the money was a gift or payment for services performed.

I suggest vlnaes2 respond to the attorney letter (or better, have vlnaes2's own attorney respond to the attorney letter) by saying the letter was received and no money is owed - or say nothing at all (possibly best) and wait to be sued.

Vlnaes2 can work with his/her own attorney on a defense should vlnaes2 receive a summons and complaint.

 

[HRZ]

So far I'm a fan of OP saying or writing nothing . And her credibility may be up for debate if she now claims it was for services rendered but she " forgot " to properly report any such employment income to relevant tax authorities .

Her repeated ducking of question as to how much money was involved over what timeframe makes me more nervous about her credibility ...