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After BK - private student loans and statute of limitations

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  • After BK - private student loans and statute of limitations

    Okay, so private student loans are said to be not discharged by BK. And what if they are beyond the SOL? They can't successfully sue, though not discharged by BK, if it's after the SOL expired, is that correct?

    And the clock starts ticking from the last payment made - is that right?

    Thanks for any insights.
    Last edited by AllMyDefault; 06-08-2014, 04:25 AM.

  • #2
    This is a very good question. I don't know if student loans (federally backed) have a statute of limitations.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      http://www.bills.com/statute-of-limi...student-loans/

      Federal student loans do not have a SOL.
      Private student loans have a SOL. It is the SOL for "written contracts". For Texas, that's 4 years.

      As for when the SOL starts, there's differing opinions.

      http://www.creditinfocenter.com/rebu...itations.shtml

      When did you last make a payment of ANY amount?
      Chapter 7, above median, no asset. Discharged with no UST involvement.

      Comment


      • #4
        ^Very important question. ANY payment ( even a buck) will reset the clock. It may not necessarily be when you made the last full on time payment either but any payment as well.

        Comment


        • #5
          Last payment was 4 years ago, as of just a few days ago. Thought I was in the clear. But on one of the links TXskyblue provided - thanks - the clock starts about 30 days after, according to their answer.

          I've got a letter from a JDB and am about to send a copy of their letter back disputing. No signature as learned in another thread. Though I did print my initials. Maybe even that isn't necessary? I'd appreciate anyone's take on that.

          Comment


          • #6
            Is this the first letter from the JDB? They may be aware that the SOL is about to expire and are fishing.

            Tough call on whether you should send a demand for validation letter or just sit on it and don't respond. Are you judgment-proof?
            Chapter 7, above median, no asset. Discharged with no UST involvement.

            Comment


            • #7
              Originally posted by TXskyblue View Post
              Is this the first letter from the JDB? They may be aware that the SOL is about to expire and are fishing.

              Tough call on whether you should send a demand for validation letter or just sit on it and don't respond. Are you judgment-proof?

              Yes, it is their first letter on this debt. I am judgment proof in that I have nothing they could take.

              Why is it a tough call?

              I didn't do much disputing pre-BK. Thought I ought to post-BK. What good would it do to NOT answer?

              Comment


              • #8
                Originally posted by AllMyDefault View Post
                Yes, it is their first letter on this debt. I am judgment proof in that I have nothing they could take.

                Why is it a tough call?

                I didn't do much disputing pre-BK. Thought I ought to post-BK. What good would it do to NOT answer?
                I really would appreciate knowing if there is an advantage one way or another.

                Comment


                • #9
                  The issue is whether you take a chance at "awakening a sleeping dragon". In other words, the JDB may not know they are at/near the statute of limitations (SOL) on collecting. If you demand proof of the debt (validation), they may then "see" the SOL issue and then move to sue you to obtain a judgment before the SOL expires.

                  The bottom line is that you never answer a JDB because you may inadvertently, or purposely, admit to the debt. The only time to send a DV is when you are relatively sure this is not the original creditor and the JDB won't be able to validate the debt - or it's a legitimate debt that is not yours! (I had one debt where they had the wrong person and I DV'd them and they apologized and IMMEDIATELY removed the collections from my credit report within a day of receiving my letter.)

                  Your mileage may vary.
                  Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                  Status: (Auto) Discharged and Closed! 5/10
                  Visit My BKForum Blog: justbroke's Blog


                  I am not an attorney. Any advice provided is not legal advice.

                  Comment


                  • #10
                    Originally posted by justbroke View Post
                    The issue is whether you take a chance at "awakening a sleeping dragon". In other words, the JDB may not know they are at/near the statute of limitations (SOL) on collecting. If you demand proof of the debt (validation), they may then "see" the SOL issue and then move to sue you to obtain a judgment before the SOL expires.

                    The bottom line is that you never answer a JDB because you may inadvertently, or purposely, admit to the debt. The only time to send a DV is when you are relatively sure this is not the original creditor and the JDB won't be able to validate the debt - or it's a legitimate debt that is not yours! (I had one debt where they had the wrong person and I DV'd them and they apologized and IMMEDIATELY removed the collections from my credit report within a day of receiving my letter.)

                    Your mileage may vary.
                    Thank you very much for the response!

                    What does DV mean?

                    In this case the most recent letter I have states the date of default, so am fairly sure they have an idea of the SOL in this case anyway, but your info is extremely helpful for the future.

                    If I send a dispute should I get return receipt requested? Along the lines of what you've mentioned I've wondered if that was like poking a hornet's nest by bringing my response to a higher level of awareness because someone has to sign for it.

                    Comment


                    • #11
                      I would not bother sending a dispute letter, because I fail to see how sending one protects any of your rights in this situation. If you respond, then the JDB knows they have a valid address for you, and can have you served with a lawsuit. If you ignore their letter, then since you are so close to the SOL, it is highly likely that they won't be able to file a lawsuit in time, and you will no longer have to worry about this debt. Also, if you send a dispute letter, you could inadvertently admit information which the JDB needs in order to sue, but does not possess due to lack of documentation.

                      Comment


                      • #12
                        Exactly what bcohen mentions. You don't send such a letter unless you have the upper hand (and you know you have the upper hand).

                        DV is debt validation (the letter one might send demanding that they verify the debt.)
                        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                        Status: (Auto) Discharged and Closed! 5/10
                        Visit My BKForum Blog: justbroke's Blog


                        I am not an attorney. Any advice provided is not legal advice.

                        Comment


                        • #13
                          Thanks again for the responses! Very helpful!

                          What about sending them notice not to contact me?

                          Then if they do I can use the FDCPA, correct?

                          Comment


                          • #14
                            Originally posted by AllMyDefault View Post
                            Thanks again for the responses! Very helpful!

                            What about sending them notice not to contact me?

                            Then if they do I can use the FDCPA, correct?
                            Please re-read my reply above. It is NOT IN YOUR INTEREST to contact these people in any way, shape, or form. What you want is to "slip through the cracks" and not be sued before the SOL runs out.

                            Comment


                            • #15
                              There is something else you should consider. If you went through a bankruptcy, it could very well be the case that the SOL for your student loans was put on hold until the bankruptcy was final. State or Federal (or perhaps a local judge) might interpret SOL in this case.

                              Comment

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