What is the process to suing someone who has defaulted on a personal loan?

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What is the process to suing someone who has defaulted on a personal loan?

Per the promissory note after a payment is 15 days late there is a 10% late fee added. The last payment was due 4 months ago. Can I keep adding a 10% late fee every month the balance is not paid? Are there other fees or financials I can include in the suit? Can I sue for lost opportunity costs or other amounts as well?

Asked on May 1, 2012 under Bankruptcy Law, South Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

1) Late fees or interest--you can charge whatever fees or interest rate is stated in the note, as per its terms, you cannot add other or additional fees not in the note. If a fee is stated as a 10% late for each late payment, then each time payment was due and was not paid on time, that appropriate fee could be added to that payment--at least, that would be the most common application. However, you need to read the note carefully, since its terms will control; if you have trouble understanding the note, bring it to an attorney to review.

2) Other fees or financials--as mentioned above, you can only sue for what the note itself entitles you to get; the promissory note is a contract, and you are entitled to everything in it--and nothing which was not in it and which the borrower had not agreed to.

3) No, you cannot sue for opportunity costs; those costs are too speculative to be recoverable, and also are not directly caused by the failure to repay, since even if you had been paid on time, what you could have or would have done with the money depends on your actions or choices, not the borrower's. What you can sue to recover, in any lawsuit, costs are damages which are proximally caused by the defendant's actions, not  by someone else's (including your) intervening or supervening choices, decisions, or actions; and you can only sue for damages which can be proven to a sufficient degree of certainty.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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