Legal Question in Credit and Debt Law in Alabama

Unpaid loan by family member

In April 2000, I provided a loan to my step-daughter and her husband, documented (signed by both of them) in a Promissory Note, using a format in Quicken Family Lawyer, that stipulated a loan for $5,000, at 5% per annum, starting 15 May 2000, monthly payments of $219.36, ending 15 May 2002. First payment was not received until July, Aug & Sep were only $100 each, and nothing since then. Unfortunately, I did not developed a secured note, but did stipulate, ''If any payment obligation under this Note is not paid when due, the Borrower promises to pay all costs of collection, including reasonable attorney fees, whether or not a lawsuit is commenced as part of the collection process.'' I have not taken any action other than to verbally tell the ''Borrowers'' they're in default (without effect). What actions can I take to get my money?

Asked on 12/03/00, 3:22 pm

1 Answer from Attorneys

Daniel Hawes Hawes & Associates

Re: Unpaid loan by family member

Make a photocopy of the note, just in case something should happen to the original. Take someone you trust to act as a witness, and tell them to be sure to remember everything that happens. Take the witness along with the original promissory note to the debtor, tell them they're in default, show them the note, and demand payment. If the note contains an acceleration clause, then you're entitled to everything you loaned along with accrued interest. Otherwise, you're entitled to the amounts then due and owing.

If the note contains a valid confession of judgment clause, then you can take it to the courthouse after "notice and presentment" as described above, and confess judgment in the names of the debtors, giving you an award without a trial.

If your computer program neglected to provide acceleration and valid confession of judgment clauses, perhaps you want to consider a legal malpractice claim against the manufacturer, or better yet, a suit under the Virginia Consumer Protection Act.

You might have done better to go to the local law library and copy a promissory note from a Virginia forms book.

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Answered on 12/07/00, 7:12 am

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