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Collections Law/can I collect on a promissory note?

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Question
QUESTION: I lent money to someone back in 2000 and he signed a promissory note in front of a notary. He has only paid 2 payments, $100 back in 2005 & $50 Nov 2011. I have had it with his sad stories and being strung along. Can I take him to small claims court now? Did his last payment restart the statutes of limitations on this debt in North Carolina?

Thank you & Best Regards,
Jancey Matthews
Resident of North Carolina

ANSWER: You ask two questions - can you sue the debtor and did the payment re-set the Statute of Limitations.

The answers are Yes and Yes.

---------- FOLLOW-UP ----------

QUESTION: He paid in cash so I have no proof of either payment. Do I need proof to sue him for the debt?

Thank You,
Jancey

ANSWER: Only if he assets the Statute of Limitations defense. Did you give him a receipt? Keep a copy for your own records? Can you go to your bank records and identify the money he paid you?



---------- FOLLOW-UP ----------

QUESTION: No, I didn't give him a receipt and the amount was so small I did not put it in the bank. It would be my word against his :-/
It's obvious I should have done things differently, but what can I do to put the odds in my favor?

Thank You,
Jancey

Answer
It is a matter in Court of "he-said, she said" and you do have a burden of proof. You do have the promissory note and despite the Statute of Limitations you can sue over that. You can claim in your suit that he did make two small payments and reduce the balance accordingly but if the Promissory Note agreed to charge interest the interest will probably be greater than the payments made and he would owe more than you would be suing for. The promissory note would be hard for him to rebut as evidence of a debt since it is notarized.

The rest depends on what he does. If he does nothing you get a Judgment by Default. If he fights you, Statute of Limitations is an Affirmative Defense, meaning if he raises it he has the burden of proof. He would meet that burden by simply pointing to how old the Note is. Then come in the two small payments. You would detail to the Judge how he evaded you, how you chased him down, how he did make the two small payments and promised more, etc..... It all boils down to who the Judge believes.

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Steve Katz

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