Ripped off 20k. Wwyd?

[in2theblues]

Seven years ago DH got and inheritance and gave the 20k to a distant cousin to buy a share in a horrible little house on a sink estate on the understanding that after two years he'd get his investment back.

DH had a stroke soon after and doesn't think straight. Distant cousin and other family refuse to negotiate with me and have been unbelievably nasty.

There is no legal/paper trail apart from perhaps the original bank to bank money transfer.

My DSs say write it off but we're living on the breadline (I'm full time) because DH can't work. And, anyway, I refuse to write off twenty thousand pounds when I'm struggling to pay for food and goodness knows what will happen when it gets cold.

Wwyd?

I think you need legal advice

Thank you Badvoc. That's what I thought. DH seems so capable and rational that I wanted to believe he'd got this one in hand.

He's just told me that he and I were there when he hit the distant cousin and cousin handed over a cheque. This didn't happen. Goodness know what else he tells his relatives on the phone when I'm at work.

Maybe I could write off 20k due to stupidity, but to injustice just hurts.

I feel like leaving sometimes but he's more pathetic (not derogatory) by the week. How could I leave an injured dog in the road?

you may have a strong legal case - the starting point would be a presumption that the 20k remains DH's, unless the cousin can prove it was intended to be a gift - but you could spend as much again in costs just getting there.

does the cousin now have 20k to hand back? If not, what would actually be achieved by legal action?

if it means selling the house to release the money, it becomes even more complex. Does anyone live there? What was the purpose of buying the house? (ie investment, or to provide a home for someone who still needs it, or just a loan)?

Thank you traviata. The house was supposed to be an 'investment' over two years. 7 years later there is no communication.

There is no legal proof about the transfer of the 20k.

So it's gone is it? Seems so unfair.

the bank statement might well be enough to prove transfer of £20k; but the thing to keep clear in your mind is where the £20k would now come from to repay DH, plus any legal costs that you might incur - even if you took it to court and won, that means nothing unless there actually is £20k+++ sitting there.

Did the investment depend on assuming that the value of the house would rise? Has it risen? Is there a mortgage on the house? Could it even be in negative equity?

You could find these things out by getting a copy of the Land Registry entry - do it online, you have to pay a small amount - and by comparing similar house prices from Zoopla to see what it cost then and what it might be worth now.

The house is a buy to let so no connection with the tenants.

The cousin is a convicted criminal damage, GBH and attempted murder ex con but pretends the veneer of a respectable businessman.

My DH's mind is fading day by day.

You have proof of the transfer of £20k (your bank statement). They have no proof it was a gift or has been repaid.
Make a claim here - very easy and cheap

I am sorry to hear about your DH's stroke and the consequent problems.

If DH can't deal with court procedures, he "lacks capacity" and can be represented by someone else, such as yourself, if the court approves. You would need a report from a psychiatrist/neurologist/psychologist or other doctor who has to fill out a specific form about 'capacity'.

caroldecker, I think the limit for the small claims court in £10k, so it would probably have to be in the county court. Also, I seem to remember from law school (a while ago) is that if money is transferred between family members there's a presumption that it's a gift unless there's any proof otherwise.

I'm not saying it's impossible to get it back but it could be complicated - basically it's an issue of whether the cousin is holding the money on trust for your DH (therefore he has to give it back).

thank you most genuinely traviata. As I thought, there is nothing we can do.

traviata a look at the link shows that the small claims court covers claims up to £100,000 and 'presumption of gift' between family members covers a very limited range of circumstances, namely father to child and husband and wife. Transactions with cousins are not covered. The assumption will be it is a loan.

No, carol - the fees link on that one is for all court fees, inc county court. The CPR confirm that the limit for small claims is £10k unless there are particular circumstances - CPR 26.6

Thank you again everyone. I was thinking of going along the lines of capital gains but really I was hoping that the people who hold the money would have a conscience about their family member whose brain is failing and whose life is fading.

I really feel for you. The problem with legal action is that it could be expensive. Small claims court is good because you don't have to pay the other side's costs even if you lose. However, as I said (and I confirmed with a colleague today, coincidentally) the limit is £10k in the small claims court so it would be a county court action and costs are higher there. Litigation can also be very stressful.

However, you could threaten them with legal action and it might be enough to get them to hand it over (if they have it) - sometimes there's no need to actually take them to court.

Good luck.

I don't agree that it is not a gift unless proved otherwise by the way. People give gifts to family members all the time. When I helped my daughter with a flat deposit we had a written loan agreed so it was all clear. The fact nothing was put in writing surely implies everyone meant it to be a gift?

Anyway the evidence you have is the oral evidence - your recollection. You and your husband could draw up written witness statements if it came to court and be subject to cross examination in the witness box. It is going to be an uphill struggle without a single independent witness, without a single email showing it was a loan from the time, with nothing in writing at all saying it was a loan, without any attempt by your husband to register at the Land Registry the relevant from to show his interest in it. Nothing you would expect for a loan rather than a gift is there at all.

See if you have any of the above or if any neighbour heard the discussions or emails between everyone at the time refer to it as a loan as that would all help a lot.

As someone said above if your husband writes a clear letter making the claim and also setting out the day and place on which the agreement was reached eg meeting at XYZ address at 2pm it was agreed between A and B with C present that XYZ and the terms of the oral agreement. It sounds like the agreement your husband seeks to prove is that your husband would get his investment back (not any interest and not any increase in value). Is that correct?

You can sue on line at moneyclaimsonline whether it is a small or large claim. Your husband should write a clear letter first before suing either himself or using a solicitor although the latter would cost you. Then if no repayment of £20k in 7 days sue. If it comes to a hearing then it goes before a judge and perhaps your husband and you will come over as better witnesses of the facts than the ex con remote cousin. It will be whose word is believed over the other although you are with your husband so that is not really regarded as an extra witness as you are bound to take his side.

Wait just one small second!!

Before you do anything, are you SURE that there is no paper trail? If you haven't done so already, check the Land Registry. It is a public document (I think a search should cost you a fiver) and the staff are really helpful. It is possible that the house is in joint names in which case cousin has a problem on his hands. If not, there should be a declaration of trust if lawyers were anywhere near the conveyance (though I accept it doesn't sound too likely). Don't do anything unless and until you have done this. Let us know the outcome and we can take it from there.

On a separate matter, you need to be thinking about an application to the Court of Protection to be given permission to take over DH's affairs. I know that's an awful thought, but it will be more so if as he deteriorates you are left powerless.

DH's parents gave us some money towards our house deposit and we had to sign something (as did they) to say it was a gift. It was to stop them having a claim on our property in the future. This was two years ago though, so I am not sure if it is any use now.

Thank you everyone. I didn't expect to see this thread back in the top 50.

The original bank transfer went to a different cousin to buy him out of the horrible little house. It was all word of mouth other than that. They've closed ranks and turned against me.

It's a shame because OH's mind is fading. A few more years without struggling and a memorable holiday to visit our son would be all we would want.

I guess it'll just have to serve as a warning about what not to do and who not to trust.

Also when you buy with a loan these days the lender asks where the deposit is from. If it is a gift from a family member they bank then insists on a written document signed by the person giving the money confirming that the money was a gift, not a loan. It sounds like that was not required here.