Jamaican ex refuses to repay loan

DEAR MRS MACAULAY,

I am a foreign national who about a year ago began dating a Jamaican man. About six months into our relationship he asked me to loan him US$1,000. There was a clear understanding between the two of us that it was a loan. The loan was made in Jamaica, and he agreed to repay the loan about three weeks later. In the space of those three weeks the relationship went sour and he refused to repay the loan. What legal remedy do I have to recoup my money?

The clear and direct answer to your question is that you have the usual remedy in law to file a claim in court for the loan to be repaid with interest and for an order that he also pays your costs, that is to say, your expenses in filing and pursuing the claim. Your ex-boyfriend, who clearly had no pride in that he borrowed money from you at all, and that he did so after a relationship of a very short duration, owed you a debt from the moment he borrowed the sum and received the money from you. His obligation to repay became binding three weeks after he got the money as per the agreement between you.

Even though you have no written record of the loan, it was still a legally binding contract as he asked for the loan and promised to repay it, and you agreed and got the money to him. The fact that the relationship went sour does not exonerate him from his legal obligation to repay the money to you. If he is sensible, he should do so now, as he would then not have to pay interest and costs if you indeed decide to sue him for your money, which you have the legal right to do.

So if you do decide to take legal action against him, then you should consider whether you wish to be legally represented and if you do, you should then retain the services of an attorney-at-law to assist you with the process of and hearing(s) in court. You must, however, remember that you can and have the legal right to act on your own behalf, and when considering this point, please bear in mind that you would not be able to recoup the attorney’s actual and full costs, but only a part of it which would be the sum ordered for the attorney’s costs by the court. The court with jurisdiction for the sum of the debt would be, if he is in Kingston and St Andrew, the parish court for Kingston and St Andrew at Sutton Street, Kingston, and in the small claims court. You should make sure that your claim for interest is included in your claim and the court and statutory fees you paid would be stated in the claim, plus, of course, the total sum of the equivalent of US$1000. If he is not in Kingston, then you should go the parish court serving the parish in which he resides. I trust that you know his address as this is necessary for service, otherwise it would be necessary to make an application for substituted service by way of an advertisement or however the court decides.

You should go to the court’s office at the corner of Sutton and East streets and seek information about the drawing up of your claim and its filing. You will be assigned to a clerk who will get the facts from you and ensure the preparation of your plaint note, the particulars of your claim, and the summons, which when fully executed will be filed upon your payment of the necessary fees. You can arrange and pay for the court bailiff to serve the defendant with copies of your claim, and he will depose to the proper service of all the necessary documents on the defendant and return and file the court’s copy at the court’s office, so that it can be listed for the fixed return day, when it will come up in open court. On the return day, the matter can be completed in one of two ways — either with the defendant appearing and admitting to the fact that he owes the money to you, or, if he does not attend and you are permitted to give your evidence in a default hearing, once your evidence is accepted by the judge, a judgement would be made in your favour in default due to his failure to appear.

It really is up to you to decide whether you would pursue your legal course of action by suing your ex-boyfriend for what he borrowed from you and failed to repay. You must remember and understand that the fact that you were involved in a close relationship of boyfriend and girlfriend does not mean that you cannot enter into legal contracts which are binding, as indeed they are between spouses, whether legal or common-law. When the relationship ends, this does not mean that the party’s contract ends. It is still enforceable by the offended party taking legal action to enforce the contract, be it written or oral.

So it is up to you to decide whether you will pursue the matter legally or leave him to his lack of moral integrity. You have six years within which to file your action in the court as it is a claim for a debt on a loan contract, so the limitation period is this period. I would advise you, however, not to delay the matter, but proceed with the action as quickly as you can.

One last further advice from me — if you ever lend anyone else money in future or agree to the use of some property of yours, both of which leaves you at a loss if the money is not repaid or your property not returned, please make matters easier for yourself by writing down a simple note of the terms of the contract, your respective names and addresses, the sum loaned or description of the property, the date for repayment or return of the property, any interest chargeable and the percentage, and the date the agreement is being made, and you and the other party sign it. It can be witnessed by some other person, or not. This just makes it easier for you if you have to sue, in that you can produce the document in support of your oral evidence, and it saves the court’s time, in that it would be difficult for them to answer your claim and try to deny it when there is a document signed.

A simple, straightforward note or a promissory note by the borrower, saying, “I John hereby promise to repay to Mary on the blank date, the sum of blank sum, loaned to me on this blank date”, and signed by him, just makes your life easier!

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.