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WA How Do I Claim a Debt?

Discussion in 'Debt and Bankruptcy Law Forum' started by jasmine44, 5 November 2015.

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  1. jasmine44

    jasmine44 Active Member

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    Morning,

    I was wondering if someone could please help on how to go about claiming an unsecured loan. I have supporting documents for the loan and have emailed the party/ies already informing them that they are well over repayment date and need to give me my money back. I also gave them some payment options for the debt but they are trying to get out of it(or remove the claim from their business at the very least)

    Any help or direction would be most appreciated.

    Thank you
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Jaz

    My recommendation is that your next step is to send a formal letter of demand for the repayment of the loan, stating that if the money is not paid within 14 days, and provide your bank account details... you will have no alternative but to commence legal proceedings to recover the money.

    Here is a link to a template letter of demand.
     
    Tim W and jasmine44 like this.
  3. jasmine44

    jasmine44 Active Member

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    Morning James,

    Thank you for that. Is there anything else you can recommend? Or just start there and see what happens? The formal letter that I sent had given them 2 different payment options, or a 3rd option which was to settle the matter in court.

    I take it, however, that I should still send this formal demand letter, as it is a legal document as opposed to the letters I have already sent? Also the last email I sent asked if their statement that they were not paying/were not liable meant that we would go to court, and also that all my future correspondence would be through a lawyer.

    Is it okay now that when I do get a response (or should I just send it now?) that I then use the formal letter? I just don't want to be seen to be harassing anyone.

    Kind Regards
     
  4. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Morning Jasmine

    You could use the title - Final Letter of Demand given you have sent previous written demands.

    How long ago did you send the last demand.. have they had a chance to consider it and respond?

    My recommendation is to wait for 14 days to expire from your last email... and if there has been no response...

    Then send the Final Letter of Demand.

    It may be worth also sending a copy via Fax and Express Post, and keeping a record of the fax confirmation and postage tracking number, etc. so you have evidence of delivery.

    If there is no response to the Final Letter of Demand.. it will depend on how much $$ are owed, as to whether you lawyer up or not... you may be able to sort it out yourself via Small Claims in the WA Magistrates Court (where you represent yourself).

    http://www.magistratescourt.wa.gov.au/_files/Civil_factsheet_3.pdf

    Let me know if it is more than $10k.

    Kind regards
     
  5. jasmine44

    jasmine44 Active Member

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    Hey James,

    Correspondance started on Tuesday(I also sent a copy of the email in letter form via registered post) and was responded to yesterday by one of the parties who has stated that the business is not responsible as one of the directors (who she is claiming isn't a director but is) entered into an agreement with me without letting the other parties know. I do have messages stating that all the parties were aware (he may have been lying about telling them I cannot be sure) and she sent me a text yesterday pretty much admitting to knowing something was going on therefore implicating herself regardless. She is therefore claiming that all future legal action be taken against the individual and not the company(a gym) however the gym has been implemented several times and is definitely the best way for me to get my money back.

    Yes it is over 10K
     
    #5 jasmine44, 5 November 2015
    Last edited by a moderator: 5 November 2015
  6. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Ok, you can do a company search to determine the directors - via the ASIC website.

    http://www.asic.gov.au/

    Was there a loan agreement with the company?
    What was the money used for?
    Which bank account was the money sent to?
    Was a declaration of business purposes signed?

    Kind regards
     
  7. jasmine44

    jasmine44 Active Member

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    I have to purchase director information as it doesn't come up when I look for it on ASIC, should I do that or does the below info mean that it doesn't matter if he is actually listed as a Director as he has been 'branded' as one and has implicated the gym regardless?

    I have a loan agreement for part of the loan (it increased and I have/had been chasing a second document but haven't received it). It was sent from his official gym email which has his title as managing director in the sign off and on the document he stated that the money was to be used for the purchase of the gym.

    I also have texts and facebook messages referring to the full amount and that it would be used to help purchase the gym. I also have correspondence offering me partnership, to buy one of the current partners(his ex-gf) out, and he also at one point gave me accountant the log in details to look at the gym accounts.

    The money was used to help purchase the gym. The money was transferred to him with gym loan & gym buy in in the descriptor.
     
  8. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Ok Jasmine

    Rhe fact Managing Director of the gym is noted on his email is enough to bind the company.. even if he is not a Director... employees acting with or without the authority of the company can bind the company.

    Is there a "genuine" dispute about whether the Company owes the money?
    The important point regarding the company.. is for you to send me what you have regarding the company admitting the debt.. if you have enough solid evidence to make it clear that their recent statements that they dispute the debt are not genuine... then, a very effective tool (a Statutory Demand) to put pressure on the company to pay up can be used.

    Statutory Demand

    A statutory demand notice is a formal, verified demand issued under section 459E of the Corporations Act 2001 (Cth). It is a very effective instrument for ascertaining whether a company can pay its debts as and when they fall due. If such a demand is correctly issued and served and the debtor company fails to pay the debt within 21 days from the date of service of the demand, or otherwise fails to make arrangements to pay the debt to the creditor’s satisfaction, the company is presumed “insolvent” and the creditor can make an application to wind the company up.

    Issuing a Statutory Demand

    Issuing a statutory demand is one of the quickest and least expensive avenues of recovering money owed to you by corporate debtors. It is also one of the most effective ways of enforcing a judgment of the courts if the judgment debtor is a company.

    In what circumstances can you issue a statutory demand? A statutory demand can only be issued to a corporate debtor if:

    • the debt or debts owed total more than $2,000; and
    • there is no genuine dispute about the existence of the debt or debts. (If the debt is a judgment debt, there is an automatic presumption that there is no dispute as to the existence of the debt).
    If a creditor issues a demand that fails to meet these tests, the demand will fail.

    Kind regards
     
  9. jasmine44

    jasmine44 Active Member

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    Hey James,

    1st off thank you so much for all of this help, I really do appreciate it!

    Ummm okay, so as I said I have a letter from him stating just under half of the amount owing and naming the gym in the document. The gym name has since changed(to a name I came up with) but that I take it won't matter as it was from when they purchased the gym, everyone knows they changed the name and there will of course be documents showing the name change with their company on it.

    I have the texts from his ex yesterday (who is also a director) stating that she believes me 100%(I don't think he had disclosed the whole amount to her, either that or she is being very cleaver, she is a smart girl). I also have text messages and facebook messages stating full amounts and that it will be payed back by the gym. Did you want me to go back and find and snap shot those?
     
  10. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Jasmine

    As you do not have a formal loan agreement signed by all of the Directors of the company, you need all of the evidence you can gather... so start "snap shotting"...


    Kind regards
     

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