Legal Question in Credit and Debt Law in California

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My uncle borrowed $30,000 in cash from my very sick and deteriorating uncle. It has been 6 years and my uncle has not paid him back. Therefore, my uncle is considering sueing him for repayment of the loan. When my sick uncle brought repayment of the loan to my uncles attention, he said that he has already paid him $14,000 in cash payments throughout the past 6 years and now only owes him $16,000. My uncle, who borrowed the money, is also saying that because my uncle is sick, and is on a lot of medication due to his poor health, that he has forgotten that he has paid him some of the money back. My question is, who has the burden of proof? And how can my sick uncle prove that he did not receive cash payments totaling $14,000 and that my uncle still owes him the full $30,000. Please note, my uncle is not denying the fact that he borrowed the $30,000, he is just claiming that he has paid him cash payments totaling $14,000 and now only owes him $16,000. Please advise. Thank you very much


Asked on 11/17/14, 10:09 pm

1 Answer from Attorneys
Robert F. Cohen Law Office of Robert F. Cohen

If the borrower had not paid back the lender in six years, the lender has a statute of limitation problem. More than likely he could not sue more than two years after the default in payment occurred. If the borrower had paid him something over the past years and the last payment had been within the past couple of years, the lender could sue for the difference. Thus, the lender might have a choice of never having the possibility of collecting, or trying to collect something through a timely lawsuit. As to the burden of proof, the lender could see what the borrower has by way of evidence through written discovery (interrogatories, demands for documents, and requests for admissions). Perhaps the borrower has bank records that could show he withdrew certain amounts to make payments to the lender or kept a ledger of payments. It's always best to give receipts for payments made and retain copies of payment checks.

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Answered on 11/27/14, 11:32 am


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