Is my verbal agreement in affect?

I loaned a friend $ 6000 . 00 back in 1999 and was supposed to pay me back in 6 months . He signed an IOU for the money and ran into some very rough times . 3 years ago he verbally told me that he would pay me my money after his mother passed away and he sold the house . I have a witness to that statement . The house just sold 2 months ago and he refuses to pay me . Since we made a verbal agreement that he would pay me after the house sells and he now has the money wouldn't the clock start ticking 2 months ago on the statue of limitations for a verbal agreement . I want to take him to small claims court but I need to know if I have a valid statue of limitations or am I wasting my time ?

San Jose, CA -

Attorney Answers (5)

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Litigation Lawyer - San Marino, CA
Answered

I think you have a decent shot at recovering in small claims court. The statute of limitations is a defense, and can be waived if the defendant debtor does not raise the defense. You have the burden of proving the exact terms of the verbal agreement. Here it appears your theory is that the verbal agreement replaced the original written IOU.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is... more
Adrienne Patricia Allen

Adrienne Patricia Allen

Personal Injury Lawyer - Grass Valley, CA
Answered

I agree with Mr. Chen. It would be worth a shot to file the small claims action. If they do not appear or do not raise the SOL defense, you may get a judgment based on the verbal agreement. You must do a demand letter first, so you can try that. Good luck.

I am licensed in California only and my answers on Avvo assume California law. The above answer is for general... more
Constantine D. Buzunis

Constantine D. Buzunis

Litigation Lawyer - San Diego, CA
Answered

I agree with Attorney Chen. I recall this question was also asked and answered recently? You have the burden of proof and will need to set out your facts and any proof that the loan was made and that there was an IOU and that you didn't sue earlier as the defendant is a friend and continued to promise to pay when they had the money and they did not have the money until the house sold two months ago, so if they raise the Statute of Limitations, I would argue that the repayment of the debt is per the new agreement made three years ago not the old agreement 6 years ago and per the new agreement, the obligation did not commence until 2 months ago when the house was sold. Make sure your witness is there or you at least have a declaration under penalty of perjury from them.

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship.... more
John Noah Kitta

John Noah Kitta

Divorce / Separation Lawyer - Fremont, CA
Answered

I believe the statute of limitations has been extended by the fact that you have renegotiated the damages and you have given the borrower consideration in that you have extended the due date for the loan period especially in light of the fact you have a witness. I would move forward quickly and file your action in small claims court.
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Robert Bruce Kopelson

Robert Bruce Kopelson

Personal Injury Lawyer - San Jose, CA
Answered

In my mind, I would like to know what the written IOU said as to when payment was to be made. It appears he was to pay 6k sometime in '99 or early 2000. Then there was the IOU. Im concerned that the IOU reqd payment sometime before 2009 when there was another verbal agreemnt made. I think that if the 4yr sol expired before he made the verbal promise in '09, you may lose. It doesnt appear there is consideration given by you in exchange for his later verbal agreemnt to pay. By that I mean, if you agreed to give him 50.00 and he agreed to pay the old expired loan, then you gave consideration. Consideration doesnt have to be money.

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