Many of us have been in situations where friends ask us to borrow money and we agree to lend it to them. Or we do work for someone and they don't pay for the work right away. But after you’ve given them the loan or done the work, the person keeps giving excuses as to why he or she has not paid the money yet, or has stopped answering your calls or messages, then you’ve got a dilemma. How do you get the money that is owed to you?
Before seeking legal help you should do all that you can reasonably do to encourage the person to pay you. You can send a firm but polite letter that clearly states what the amount of the debt is, what it is for, and by when you require payment. It's worth a try and it just might work.
If all else fails you may need to start a civil claim and an attorney can help you with this. A civil claim is a lawsuit which deals with disagreements among persons, including disagreements about money. In a civil claim a person can seek to get back the monies owed to him by another person.
In Trinidad and Tobago, claims for more than $50,000TT must be filed in the High Court while claims for less than $50,000TT can be heard before a Magistrate in the Petty Civil Court. The person bringing the claim is called the Claimant while the person being sued is called the Defendant.
You must act against the debtor within four years from the date on which the debt arose. After that you may find that your claim is ‘statute barred’, that is, out of time.
In the beginning of the litigation process (especially before bringing a claim before the High Court), your Attorney will issue a pre-action protocol letter to the other party involved outlining your grievance and requesting that the legal dispute be resolved before legal action is initiated. This is to allow the parties the chance to save time and money by negotiating and possibly settling the claim without ever going to court.
You may be able to resolve the problem by the debtor paying the debt – immediately or over a period of time agreed by you and the other party – in negotiations. If there isn't a satisfactory response by the other party, the Claimant may then file the claim.
Filing a claim in the Magistrate's Court (claims for less than $50,000TT)
Most matters before the Petty Civil Court at the Magistrate's Court are started by attorneys at law on behalf of a Claimant. If this is the case, the attorney files the required documents for the client. However, a Claimant may represent him/herself in the Petty Civil Court.
The document that starts proceedings in the court is called an Ordinary Summons. A Claimant who chooses to represent him/herself may go to the Magistrates' Court in the district where the claim arises, and there, he/she would be provided with a form which can be filled out detailing the claim. This is then filed in the court. A filed copy of this form must be served on the named Defendant. In addition to the Originating Summons, a Claimant must also file and serve a Particulars of Claim. This is the document that tells the Claimant's story of why he/she is entitled to the remedy that is claimed.
Filing a claim in the High Court (claims for more than $50,000TT)
The claim is started by the filing of a claim form. This is a document that briefly sets out the claim and calls on the Defendant to state whether he admits or denies the claim. The claim form must be accompanied by a statement of case in which the Claimant details the facts that entitles him to the remedy sought.
The Claimant must also include and attach all the relevant documents that he relies on to support the claim. In the case of borrowed money being owed, the evidence may include:
In the case of money owed for work done, the evidence may include:
If no defence is filed, the court may enter judgment for the Claimant. This means that the Defendant may be liable to satisfy the Claimant's claim without the judge considering the Defendant's version of events. Once the claim and defence are filed, a date is set for a case management conference. This is chaired by a judge.
Both parties and their attorneys are present and emphasis is placed on a cooperative effort to see if the issues surrounding the claim can be resolved amicably, and if not, the most efficient and effective means to decide the case. In the civil litigation system, emphasis is placed on negotiations and attempts to resolve disagreements as amicably as possible without the need for a trial. However, if negotiations and attempts at cooperation do not resolve the claim, the matter will go to trial and the disagreement will be settled by a judge.
What if a claim has been made against you?
If you are served with a claim you have several options.
If you do owe the money, you should pay the debt if you can to avoid incurring any further costs.
If you admit part of the debt but not the whole amount, your attorney can file a document admitting the amount you are prepared to pay — the creditor may accept that amount, or if not, the court will decide the matter. Otherwise judgment will be entered against you for the amount admitted.
In many cases your attorney can help by negotiating an agreement between you and the creditor, which can provide for payment of a lower amount than the initial claim, and/or terms for payment over a period of time.
If you dispute the whole debt, your attorney will file with the court a Defence and have the dispute heard by the court.
Important Notice: This post does not constitute or provide legal advice. Always consult with a suitably qualified attorney-at-law on any legal problem or issue.
Law For All is managed by the AURORA Chambers Legal Practice.
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