By Deb Miller, JD, volunteer with WV Senior Legal Aid
“Not again,” Marlene thought to herself. Her daughter Wendy was asking her for another $1000 loan (the eighth in recent months). It had become a regular habit, leaving Marlene feeling upset and frustrated. She had them marked on her wall calendar. She would never think of doing that to her daughter. Besides, she had other children, grandchildren, and her own needs to consider. To date, Wendy had not paid back a single penny from any of the earlier loans and had flippantly commented more than once that she just saw it as her future inheritance received now. Like others in the same situation, Marlene was upset that Wendy couldn’t handle money better and didn’t mind waltzing in to request more from her mom. Marlene‘s own budget was always stretched thin. With a sense of dread, Marlene also wondered who else she was taking money from. Wendy had probably not repaid them either. She could be sweet and charming when it suited her. Wendy and her boyfriend had recently gone on a nice beach vacation. Knowing approximately how much it had cost, it hurt Marlene that Wendy now wanted even more money from her. Thinking back, she regretted not discussing budgeting and repayment. She should have required a written loan agreement that would include all the terms so that Wendy would take it more seriously. Otherwise, no loan. When needed, there is a ten-year statute of limitations under West Virginia law for suing the debtor on written loan agreements. On verbal loan agreements, it’s five years. To try to collect an unpaid loan without suing, writing a demand letter and mailing it to the debtor can be a good way to start. Use the “return receipt requested” postal delivery service. In the letter, describe the loan, demand repayment, and let the debtor know of your intent to take legal action if needed. If no repayment occurs and the total of the loans is $10,000 or less, a lawsuit can be filed in the county magistrate court where the debtor lives. If the debt is more, the lawsuit needs to be filed in the appropriate circuit court. After the debtor is served a copy of the official complaint according to state requirements, he or she can file a written response. Next, a hearing will be scheduled during which evidence about the loans and their terms, as well as testimony about the lack of repayment, will be needed to prove the case. Emails, phone messages, and text messages about the loans are useful. The debtor will also have the opportunity to present their defense. Winning the lawsuit does not mean that collection of the amount owed will be easy or automatic. Before suing, take into account whether the person has a job or owns real estate or other assets that could be used to pay the debt. If the person is collection proof, suing won’t result in getting paid. Guidance on unpaid loans or other legal issues is available at West Virginia Senior Legal Aid for state residents age 60 and over. Call 800-229-5068 or email info@seniorlegalaid.org.
