How These Student Loan Borrowers Are Getting Their Debt Dismissed in Court

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Student debt is only forgiven or discharged in special cases, but a new report by The New York Times might offer a glimmer of hope to some student loan borrowers struggling to manage their debt.

If a student loan lender or servicer can’t prove that they own the debt that they are attempting to collect from a consumer, it’s possible that the debt can be dismissed in court.  That’s what happened in a recent case profiled by New York Times reporters Stacy Cowley and Jessica Silver-Greenberg involving private student lender National Collegiate Student Loan Trusts, one of the nation’s largest owners of private loans.

National Collegiate sued dozens of former students who had defaulted on their private student loans. But in court National Collegiate failed to prove they owned the loans. This happens often when loans are sold to another lender, or otherwise handed to another account manager and paperwork gets lost. Ultimately, the courts dismissed the lawsuits, citing the fact that National Collegiate had no way of proving they owned the debts in the first place.

This isn’t always how the scales tip in cases against consumers for unpaid debts.

If consumer debts are left unpaid for an extended period of time, consumers can and often are taken to court by the companies they owe. Often, consumers don’t answer these lawsuits at all. And when lawsuits aren’t answered, judges usually rule in favor of the plaintiffs. With those judgments in place, companies can then push to have the consumers’ wages or federal benefits like Social Security garnished.

The outcomes in these National Collegiate lawsuits are proof of what can happen if consumers simply show up at court and try to fight back.

“Individuals trying to get rid of student loan debt should be proactive in demanding proof of ownership of the loan documents from the lender that is collecting or trying to enforce the [loan],” says Attorney Evelyn J. Pabon Figueroa, based in Orlando, Fla.

People who are going through the bankruptcy process and are attempting to have student loan debt discharged should also ask their lenders for proof that they own the debt, Figueroa says. If proof isn’t provided, they should dispute the debt.

Figueroa says in some cases borrowers should even stop making payments if they believe the lender doesn’t have the right documents to prove they own the loan. Instead, send the lender a debt verification letter, which asks lenders to provide proof that the debt belongs to a person. You can download a sample debt verification letter from the Consumer Financial Protection Bureau website.

The CFPB suggests asking these three questions in your letter:

  • Why a debt collector thinks you owe this debt.
  • The amount of the debt and how old it is.
  • Details about the debt collector’s authority to collect this money.

If the lender can’t provide proof, you should consider disputing the debt, either in court (if the lender has filed a lawsuit against you at that point) or through the three major credit bureaus (if the debts are appearing on your report and subsequently hurting your credit score).

How student lenders lose track of their debts

If the National Collegiate debacle sounds familiar, it should. It’s similar to the same issues mortgage lenders encountered during the 2008 subprime mortgage crisis. Lenders took borrowers to court to pursue unpaid mortgage debts, but when the lenders could not provide proof that the borrowers owed the debt, courts often ruled that the loans were not collectible. The lack of documentation was so pervasive that many borrowers intentionally defaulted on their mortgage loans on the off chance a lender could not prove they owned the debt.

National Collegiate is already anticipating that it will face the same problem — that borrowers will simply stop paying their debts — as word spreads of its inability to win lawsuits against borrowers. “[A]s news of the servicing issues and the Trusts’ inability to produce the documents needed to foreclose on loans spreads, the likelihood of more defaults rises,” the company said in a recent legal filing.

What to do if you’re sued by a student lender or debt collector

First, don’t panic. The last thing you want to do if you’re ever sued is admit in writing or verbally that you owe the debt. In the event the lender can’t prove they own the debt, this may come back to haunt you. By taking these few key steps, you can protect yourself both legally and financially in the event you’re served with a lawsuit from a lender:

  1. Ask them to verify the debt. If you’re already suspicious your loan lender may have lost your paperwork and can’t prove the debt, start by sending out a debt verification letter. If the lender doesn’t respond (give them 30-60 days), they must cease attempting to collect the debt. If they don’t stop, you’ll likely need to contact a lawyer. You may not need to hire one, but a quick consultation for legal advice for your best course of action will be well worth it.
  1. Never discuss the debt over the phone. If a lender or collection agency contacts you via phone before you are served a lawsuit or receive anything in the mail, be sure to get the the caller’s name, company, and license number. Once you have this information, it’s best to communicate via certified USPS mail to track and document that every correspondence has been received by the legitimate collections company and lender. If you end up in court, this is important, as it establishes a paper trail for your communications. (Email and electronic timestamps can easily be forged.) Keep in mind you don’t ever have to answer the phone if you don’t recognize the number, and you have a legal right to tell debt collectors to stop contacting you entirely.
  1. Contact a lawyer. Lawsuits involving large sums of money are no small game to play in a courtroom. Most consumers don’t know the intricacies of the laws that actually protect them (and sometimes may not know how to read the contracts they signed), but a lawyer versed in contract law or one who specializes in bankruptcy can easily help dispute the debt and, if it’s valid, negotiate a settlement without ever stepping into a courtroom. The CFPB keeps a handy list of legal aid groups so you can find an affordable lawyer in your state.

 

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Facing a Medical Debt Lawsuit? Take These 10 Steps First

If you’ve ever been sued by a debt collector or service provider over medical debt, you know how stressful it can be. If you couldn’t afford to pay the original debt, you likely still can’t afford it. And if you want to defend yourself, you’ll have to face the additional time and cost of going to court, too.

You should know that you’re not alone. According to staff attorney Chi Chi Wu of the National Consumer Law Center, when you look at debt collection items on credit reports in America, “half of those items are from medical debt. Not credit cards. Not auto loans. Medical debt.”

You may be tempted to ignore the suit since you know you can’t pay, but Wu advises against inaction.

“Always show up,” she says. “Never ignore a lawsuit. If you ignore it, the debt collector or service provider on the other side automatically wins by default.”

What happens when you show up, though? Here are four steps to take if you’re facing a medical debt lawsuit.

  1. Find Out Where the Debt Comes From

You cannot properly address your lawsuit if you don’t understand where the debt comes from. If you look back at your past bills, you should be able to find a date of service and itemized list of services rendered with associated costs.

You may be in debt because you’re uninsured, but even insured patients end up in this boat thanks in part to a rise in high-deductible health plans. Mistakes can happen as well. If a patient visits an in-network hospital, but is unknowingly seen by an out-of-network doctor, they can be charged out-of-network fees. Doctors are independent contractors, so while the hospital may be affiliated with your insurance company, that doesn’t mean your service provider is inherently in-network.

2.Don’t ignore the lawsuit

In most consumer debt cases, consumers don’t have an attorney at all. But hiring an attorney to advise you can be a wise move. It doesn’t have to cost a fortune either, Wu says.

Most lawyers will provide a free consult before taking you on as a client. In this consult, they may be able to help you find your bearings so you can represent yourself.

Wu recommends seeking help from the Legal Services Corporation, a government-supervised nonprofit that provides legal representation at a low cost to low-income households. You can also seek help from nonprofit legal assistance firms in your area.

If you’re uninsured, one way to keep the case from going to court is to contact the doctor or debt collector immediately to negotiate your bill down to Medicaid/Medicare prices — which are often 2-3 times less than that of the gross price you were billed. When a provider refuses to negotiate down to these lower rates, it is called “discriminatory pricing,” and your legal counsel may recommend using it as a defense in court.

  1. Prepare for Court

The first thing you must do is prepare an answer to the lawsuit, including any defenses or countersuits that you want to raise. This will involve filing paperwork at the court, mailing paperwork, and showing up on your initial court date. Again, it’s advisable to get a lawyer to help you through this, or at least get a consult. The National Association of Consumer Advocates has a helpful video explainer on preparing to defend a medical debt lawsuit.

It’s important to make this initial court date. It is very unlikely the judge will grant you a continuance that would move the court date further out.

There are some exceptions to this. If you are being sued in a state in which you no longer reside, it’s easier to mount a defense if you can’t appear in court. In fact, appearing in court could work against you, demonstrating to the court that you have no problem traveling to and from court out of state.

If you’ve been served in a state outside of your own, it is very important to get legal representation.

This is because you must answer the suit, but you must also do so in a way that does not imply that you are submitting to that court’s jurisdiction over you. The process is one that is best handled by someone trained in law.

After you answer the suit, the court will set a date for the discovery part of the trial. You will have to file more paperwork with the court before this date so that you are able to present evidence that you are not liable for the debt.

  1. Understand Wage Garnishment

If you are found liable for the debt, or you fail to answer the lawsuit and the judge rules against you, the court may issue an order giving the lender or collection agency the ability to garnish your wages. By federal law, they cannot leave you with less than 75% of your income or $217.50 per week — whichever is greater. State law may protect you even further.

Medical debt collectors are able to garnish your wages, but they cannot garnish Social Security benefits, disability insurance payments, unemployment insurance payments, VA benefits, pension distributions, child support payments, or public assistance benefits. If you have any of these forms of income, it’s wise to set up a different bank account where those funds are deposited and keep all garnishable wages in another separate account.

You should do this because a court order can go after your bank account balances, too. While that doesn’t make it legal to take money that came from any of these protected sources, separate bank accounts will make the incidence of errors smaller — saving you headaches and potential victimization.

  1. Understand Your Rights Before You go to Court

When it comes to medical billing and debts, you do have rights as a patient. Make sure you understand them so you can lower or eliminate your bill before or after you’ve been sued.

Were You Served Properly?

Sometimes wages are garnished before the plaintiff is even aware that there’s a lawsuit against them. This happens most commonly when you’re improperly served. Examples of using “improperly served” as a legal defense include papers being only mailed to you and not delivered in person, papers being left at an incorrect residence, or papers being mailed to an old address. Being “improperly served” does not mean that the papers were left with a family member or friend at your residence and they forgot to tell you about it. If that happened, you’re still on the hook.

If you have been improperly served, or if you find out that the court mistakenly started garnishing wages because you have the same name as an actual plaintiff, you should contact a lawyer immediately to figure out what possible recourses there may be for your specific situation.

  1. Get Low-Cost or Free Help from Financial Assistance Programs

In 2016, about 58% of community hospitals in the U.S. were not-for-profit, according to the American Hospital Association. This gives them tax-exempt status, but also obligates them to give back to their communities. Under the Affordable Care Act, these hospitals must provide some type of financial assistance program to low-income patients. Even if you aren’t from a low-income household, you should apply, as some hospitals extend their programs far beyond the poverty line. Many hospitals also extend this program to insured patients.

These hospitals have an obligation to let you know about their financial assistance programs within four months of when your bill has been issued.

You have until eight months after the initial bill was issued to apply for financial assistance. You have the right to do this even if the debt has been sold to a third-party collector, and even if that collector is the one suing you in court.

  1. Be Aware of Discriminatory Pricing

We’ve already touched on the fact that you can try to negotiate your medical bills down to Medicaid/Medicare prices. If you are being sued in court and are uninsured, discriminatory pricing can serve as a defense. If you qualify for the hospital’s financial assistance program, they legally must reduce your bill to the amount generally billed to insured patients.

  1. Look Out for Balance Billing

Balance billing happens when your hospital or medical provider bills you instead of or in addition to Medicaid or Medicare. It’s a forbidden practice, and you are not responsible for any amounts due when this happens.

You may be able to identity balance billing if you receive an “Explanation of Benefits” from your insurer that states the amount they covered and the amount you still owe. If this does not match the bill your medical provider sent you, there is a cause for concern. Additionally, if the bill you receive does not show any payment from your insurance when you are, in fact, on Medicaid or Medicare, it may be a sign that you are a victim of balance billing.

  1. Stop Lawsuits Before They Begin

If something about your bill doesn’t look quite right, there are ways to reduce it to its fair amount.

First of all, make sure the hospital didn’t make an error that resulted in a larger bill. One way this could happen is if something they did caused you to have to stay in the hospital an extra night, inflating your costs beyond what they should have been originally.

Another good avenue to pursue is to have your bill examined by a medical bill advocate. They’re familiar with coding and laws that you’re not, making them the perfect people to review your charges. You may find one in your community by asking around, or you can start your search with the National Association of Healthcare Advocacy Consultants.

Debt collectors, hospitals, and other medical providers don’t want to take you to court. It costs them money, and the odds of them actually getting a full payment at that point are very low. They are almost always willing to work with you before issuing a lawsuit. Negotiate. Apply for financial assistance. Set up zero-interest payment plans directly with your health care provider.

Keep the lines of communication open so that no one ends up with the additional costs of litigation.

  1. Weigh Bankruptcy

At any point in this process, you can choose to file for bankruptcy. Filing for bankruptcy may alleviate the medical debt. Just be cautious. Bankruptcy is not a decision that should be made lightly, as it will remain on your credit report for up to 10 years and make it difficult to qualify for new credit.

There are two types of bankruptcy: Chapter 7 and Chapter 13. Chapter 7 requires you to sell off all of your assets to settle what you can of your debt obligations. If you don’t have any or many assets, that aspect of it doesn’t matter much. What will matter is that the debt will essentially disappear after you file.

If you file for Chapter 13, you do not have to sell off any assets, but the debt won’t disappear either. Instead, you’ll be put on a 3-5 year payment plan in order to settle.

This may make sense if the court has already issued an order against your wages, but at any other point in your case, it would make more sense to try to set up a payment plan with the medical service provider or debt collection agency directly. Their last resort is wage garnishment. Don’t let it get that far. Know your rights so you can negotiate with them effectively rather than damaging your credit report through Chapter 13 bankruptcy.

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How Late Can I Sign a Pre-Nup?

sign a pre-nup

Q. How soon before a marriage should a pre-nup be signed? My daughter is getting married in five weeks and her fiancé still hasn’t given her the pre-nup so she can have an attorney review it. His father owns a large company and she believes he does not want her to make any changes. She has been with him for eight years. — Nervous mom

A. This may become a sticky situation for your daughter.

There are no set number of days before a marriage that a pre-nup, or premarital agreement, must be signed, said Ken White, a certified matrimonial attorney with Shane and White in Edison, N.J.

White said premarital agreements are governed by statute — the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31.

“Per the law such an agreement must be in writing, must be signed by the parties before the marriage, must have a statement of all assets belonging to the parties at the time of the agreement attached to it, and both parties must either have independent counsel or specifically waive, in writing, their right to have an independent attorney review the agreement,” White said. “The agreement becomes effective upon the marriage of the parties.”

He said the timeline/deadline issue comes into question when a party seeks to enforce a premarital agreement. Specifically, he said, the enforceability of a premarital agreement can be challenged if a party successfully proves that he or she entered into the agreement under duress.

For example, if just before the wedding ceremony with all one’s family and friends waiting in the banquet hall, one party turns to the other for the first time and states, “I will not marry you unless you sign the premarital agreement this moment,” White said.

“Under such a circumstance, the party challenging the enforceability of the agreement may argue that he/she did not have a sufficient opportunity to review, consider and otherwise comprehend the agreement before signing it, and only signed it because he/she felt as if a gun had been placed to his/her head and knew of no other way to avoid the humiliation of facing all his/her family and friends, accordingly the agreement was signed under duress/coercion,” White said.

To avoid such challenges, White said most attorneys advise that a premarital agreement should be drafted, reviewed and signed as early as possible before the marriage.

“Many of my peers will not participate in the drafting/executing of a premarital agreement unless it happens at least 90 days before the wedding ceremony,” he said. “I myself use a 30-plus day deadline, and will refuse to participate in the process if less time is available.”

But, there is no set rule, White said, and you may be able to find attorneys willing to participate in the process at the last moment, despite the potential pitfalls associated with such action.

Good luck to your daughter.

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