[rosiecos]

I loaned my son $31,000 to use as a down deposit on a house in 2008. In 2009, he severed all contact with me. Since then I have been calling, writing, e-mailing asking him to call me. I sent him a Promissory Note to sign which he never did. At no time did he indicate that he thought the money was a gift. I filed a Complaint January 2011 asking for a judgment against him for $31,000. He filed a Motion to dismiss. I am in the process of filing a Cross Motion to deny his motion. I need to cite case law in New Jersey that supports my position that there was an oral agreement and that oral agreements are binding.

[ScottGem]

Oral agreements can be binding but they need to be proven. Do you have any evidence that this was a loan and not a gift? The burden of proof is on you.

[rosiecos]

I mailed my son a Promissory Note on two occasions asking him to sign it. He had previously indicated to me he would sign anything I wanted. When he would no longer speak to me, I called him every two weeks, leaving voice mail messages, I sent him certified letters with the Promissory Note, I e-mailed him, etc. Not once did he indicated in any fashion that he thought the money was a gift. He asserts that since I have no written documentation, I have no leg to stand on. My position is that he was well aware this was a loan because he was told so on many occasions. He never once rebutted my position until I filed a complaint. Now, he claims that it was a gift and that there was no oral agreement. I need to cite in my motion case law in New Jersey where oral agreements over the loaning of money were found to be legally binding.

[ScottGem]

You are missing the point. You need to prove that he understood that it was a loan BEFORE you gave him the money. You should have had him sign a note before handing over any money.

You will need to prove by documented evidence acceptable to a court that he knew it was a loan prior to receiving the money. Or that he agreed to sign any agreement to repay after he received the money.

You are citing negatives and you can't prove a negative.

Who is telling you that you need to cite case law?

[Fr_Chuck]

Ok, not sure who told you that you have to prove a oral contact is binding, they just are, what you have to prove is that there was a oral contract, the fact you mailed him something latter he refused to sign proves nothing, nothing at all and has no bearing on this case.

Who was the witnesses, who else knew he got the money and can testify in court that they knew he was to pay it back.
Did he make any payments toward it. What was written on the check when the money was given.

You have to prove there was an agreement,

[rosiecos]

There are a lot of our friends and family who were privy to what transpired because we told them what we were doing (in terms of it being a loan) from the very beginning. My son was made aware on many occasions verbally and in many, many voice mail messages that this money was a loan. He never contested this issue until I filed a complaint. Unfortunately, I didn't write anything on the front of the check. I am filing a cross motion by myself and in my certification I would like to cite case law where verbal agreements were found to be binding as my son says in his certification that they are not. He does not indicate any evidence that the money was a gift while I assert through my various efforts to get him to sign a note and the letters and e-mails and voice mail messages that I sent him wherein I indicated it was a loan.

[ScottGem]

You have come here asking for advice and have gotten good and correct advice. Why do you insist on ignoring that advice?

It doesn't matter one whit what you told your son AFTER you handed over the money. It doesn't matter one whit if he did not respond to what you said. The only thing that would matter would be if he responded, in front of witnesses or in writing, that he understood the money was a loan.

However, if you have witnesses or documentation that he was told it was a loan AND acknowledged such BEFORE the money was handed over then you have case.

You do not need to cite case law in your brief. Only actual law. But this site may help you understand what we have been saying:
New Jersey Entrepreneur - Oral Contracts

And, again, your son doesn't have to provide any evidence that it was a gift. You are the plaintiff and the burden of proof is on you. He can just sit back and say, "I thought it was a gift" and you have to prove he knew it wasn't BEFORE you handed the money over.

[Fr_Chuck]

Yes it does not matter who YOU told, do you have any witnesses that HE told, or witness that you told them, not heard you told him, but where in the room when you told him.

You will have to prove it was not a gift, prove he new and prove he agreed to pay it back. And in some courts even prove there was a term of time to pay it back.

So you telling someone, if he was not there does not matter, since they did not see or hear you tell him, so that is just hearsay and can't be used in court.

When you gave him the check ( assume it was a check) did you write loan on the bottom, did the real estate agent or broker know you were going to loan him the money, was that listed perhaps on the offer for sale of the property ?

[excon]

Hello r:

The best evidence you have that there WAS an agreement is his contention that verbal agreements aren't binding...

excon

[JudyKayTee]

There are a lot of our friends and family who were privy to what transpired because we told them what we were doing (in terms of it being a loan) from the very beginning. My son was made aware on many occasions verbally and in many, many voice mail messages that this money was a loan. He never contested this issue until I filed a complaint. Unfortunately, I didn't write anything on the front of the check. I am filing a cross motion by myself and in my certification I would like to cite case law where verbal agreements were found to be binding as my son says in his certification that they are not. He does not indicate any evidence that the money was a gift while I assert through my various efforts to get him to sign a note and the letters and e-mails and voice mail messages that I sent him wherein I indicated it was a loan.

Rosie, you're not understanding - you need to PROVE there was a clear understanding that this was a loan PRIOR to giving him the money. It's one story if you said "This is a loan" and he agreed and THEN you gave him the money. It is another if you gave him the money and then said, "This is a loan." Anything that transpired after he got his hands on the money (witnesses, emails) or anything anyone witnessed is pretty much immaterial.

Oral testimony IS allowed, oral agreeements ARE binding. There is no specific case law.

The question is going to be the proof. If, for example, your son obviously didn't have the means to repay you OR a bank refused to lend him the money the Judge may very well decide that your expectations to be repaid were/are unreasonable. That changes things for you.

You are representing yourself in a superior court? Now THAT takes courage!

[Fr_Chuck]

Also does the other side have an attorney ? If you are in Superior court and they have an attorney it will be very hard to win,