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Craig,
The Higher Education Act at 20 U.S.C. 1095a regulates certain aspects
of collection of defaulted federally guaranteed student loans. The
Secretary of the U.S. Department of Education enacted regulations to
enforce these collection methods at 34 C.F.R. 682.410(b). When you
have a defaulted student loan, your initial focus should be on the
legal enforceability of the debt, the amount of the debt and the
amount of collection costs. Generally, and with some exceptions, the
Higher Education Act preempts specific state and federal Fair Debt
Collection Practices Acts.
If your wages have been garnished, or your income tax refund has been
intercepted or your entitlement to social security benefits have been
offset, then you are entitled to an administrative hearing to
determine the legal enforceability of the debt, the amount of the debt
and the amount of collection costs. You are also entitled to
discovery of documents that support the guaranty agency's (collection
agent/collection contractor) claims that you owe the debt.
If you choose to challenge the debt by administrative hearing, then
you should:
1) send a written demand (certified mail, return receipt
requested) for discovery of all promissory notes, all computerized
documents that demonstrate collection efforts, copies of all
correspondence to and from the guaranty agency and its agents relating
to the debt, copies of a payment history, and documents supporting the
guaranty agency's basis for collection costs as delineated in 34
C.F.R. 30.60;
2) demand an in-person administrative hearing with
Administrative Procedures Act (5 U.S.C. 504, et. seq.) type judicial
review after negative decision;
3) hire a court reporter to accompany you, swear-in all
witnesses and transcribe the hearing.
Be prepared to file a federal lawsuit to challenge the constitutional
fairness of the hearing if you lose. File that suit within one year
of the hearing so that you can allege civil rights violations (Biven's
actions) under 42 U.S.C. 1983.
Good luck.
George Gingo
California lawyer license no. 147897
Florida lawyer license no. 879533
ggingo@earthlink.net
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From: Craig (cballiet1@yahoo.com)
Subject: HELP!! Default Student Loan -- What are my options?
This is the only article in this thread
View: Original Format
Newsgroups: misc.legal.moderated
Date: 2004-02-24 04:45:37 PST
Hi,
My wife, before we were married, defaulted on her student loan. Her
loan has been referred to an attorney for collection. Since then, I
have purchased a house, car, etc. all of which were in my name.
We have been making payments to this attorney for over ten years now.
My wife has asked for balance information so that we could look into
just paying it off. The attorney has never responded to her
inquiries. (Of course, I would be more relentless in finding this
information, but legally I cant).
We recently received a letter from this attorney from a court of
common pleas which is requesting information on my wife's assets in
attempt to collect via sheriff's sale. My questions are:
1. The house, car, etc. is soley in my name. However, this document
is requesting for assets that are owned "or enjoyed" by another
person. Does this put my house at risk?
2. We have been making the required payments -- and the attorney has
not dislosed the information we requested. How can I get rid of the
attorney and pay back the student load directly??
Please--any advice would be appreciated as this situation could
destroy our lives.
Thanks,
Craig
Post a follow-up
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2. We have been making the required payments -- and the attorney has
not dislosed the information we requested. How can I get rid of the
attorney and pay back the student load directly??
In addition to the prior excellent (but costly) advice you may want to
have your wife file a complaint with the state Bar for professional
misconduct and suspected diversion of assets (if you think that may be
the case). She is liikely to get the accounting you want forthwith.
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