Q: Is it worth the time and money to take legal action against a person who owes me $8,000 ?
I lended her the money 5 years ago, out of goodness of my heart. She was a coworker who was going through a difficult time. According to her, her husband lost is job etc
She begin right away to pay me back. I have only received $350. She left the company in which we both worked. I have been texting her occasionally over the past 5 years.
Her replies have been:
I'm not working
My brother has been terminally ill
My grandmother died
I'll receive my acceptance letter from a new employer. I'll get back to you. (This was used 2Xs)
I also have a non notarized promissory note in which she signed? I signed and my daughter signed as a witness
Sorry not sure what this would categorized as.
A: You need to first determine whether the statute of limitations has run already, and that starts with determining which SOL applies, and the date it starts to run from. Based on your description, the SOL can either be 3 years of 12 years. The only way it can be 12 years is if the promissory note was signed "under seal." The way a promissory note is signed under seal is simply by having the word, "seal," appear on or at the end of the signature line, or if the promissory note specifically states that it is under seal. If the note is not signed under seal, then the SOL to file suit in court is 3 years.
Once you determine which SOL term applies, next you need to identify the date from which it runs. That is not as simple as it might appear. The general answer is that it starts to run from the LATEST date of the following options:
(1) the date you loaned the money;
(2) the date she signed the promissory note;
(3) the date the promissory note stated the money was due to be paid in full;
(4) the date of the last payment made toward the balance due.
BUT, because of COVID, it is not enough to simply count three or 12 years from the latest of the above dates. The Court of Appeals issued an Admnistrative Order suspending the running of the SOL during the approximately 4 month period during which the courts were closed in 2020 (March to June), so for any claim on which the SOL was running that included that 4 month period, you get to add the four months to the end of your SOL period applicable to your case (there's an exact number of days, so the specific dates in the Order need to be consulted). Whether that makes a difference in your case is of course unknown. You have not provided any dates relative to the above 4 options that apply to your question.
If the SOL has run on filing suit, you can still file suit, but the defendant can win simply by asserting the defense that you filed beyond the statute of limitations. However, the SOL is what is known as an "affirmative" defense, and it must be raised by the defendant in their first responsive pleading to the complaint. Therefore, a defendant who is not a lawyer, is ignorant of the law, and fails to raise and argue that defense, will waive it by failing to do so, and the court would be free to enter judgment in your favor. That's a risk you take.
Alternatively, if you are beyond the SOL, but you manage to get the debtor to make a payment, however small, even just getting her to agree to start making $5 or $10 per week or month payments as show of good faith intent to pay you back, the SOL on the whole debt starts all over again from each payment made. Voluntary payments are always better than chasing a judgment debtor with a judgment trying to attach assets or garnish wages.
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