As Paperwork Goes Missing, Private Student Loan Debts May Be Wiped Away 670

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As Paperwork Goes Missing, Private Student Loan Debts May Be Wiped Away 670

As Paperwork Goes Missing, Private Student Loan Debts May Be Wiped Away 670

NYT-

Tens of thousands of people who took out private loans to pay for college but have not been able to keep up payments may get their debts wiped away because critical paperwork is missing.

The troubled loans, which total at least $5 billion, are at the center of a protracted legal dispute between the student borrowers and a group of creditors who have aggressively pursued them in court after they fell behind on payments.

Judges have already dismissed dozens of lawsuits against former students, essentially wiping out their debt, because documents proving who owns the loans are missing. A review of court records by The New York Times shows that many other collection cases are deeply flawed, with incomplete ownership records and mass-produced documentation.

[NEW YORK TIMES]

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One Response to “As Paperwork Goes Missing, Private Student Loan Debts May Be Wiped Away 670”

  1. Randall Stephens says:

    I read the piece on NYT. I’ve read similar coverage on Bloomberg, and vice.com. I expect there is already more coverage than that, and that more will be coming.

    It is disappointing the best journalists/writers the media offers up on these issues can’t be bothered to get it right. Thus far they have been suggesting that the dismissals of these cases are wiping out the debts.

    The NYT piece stated at ¶ 3:

    “Judges have already dismissed dozens of lawsuits against former students, essentially wiping out their debt, because documents proving who owns the loans are missing.”

    Common to almost ALL debt related cases for the past decade is a plaintiff that was not the original creditor. Frequently plaintiff either does not, will not, or cannot, prove it is entitled to enforce a/the debt instrument. Courts often don’t care and grant plaintiff judgment in spite of the lack of proof. In the rare instance a debtor receives favorable judgment against an unentitled plaintiff the judgment is almost never “with prejudice.” If such judgments were entered “with prejudice” it is still possible another party could step forward in a subsequent suit and allege an entitlement they don’t/won’t/can’t prove – and obtain a judgment.

    A dismissal w/o prejudice at a trial court level is of very limited value. A plaintiff certainly can, and often times does, simply file a 2nd action. A trial court’s dismissal may even help a plaintiff by informing it what defects need to be cured to prevail in a 2nd action. A vacation, or reversal, with an order for dismissal w/o prejudice, from an appellate court isn’t any more valuable. One thing that doesn’t happen in these kinds of rulings, either at trial level, or appellate level, is the wiping out of the debt.

    The NYT piece exemplified a case in the Ohio 6th DCA, and provided a link to the opinion. Read the last paragraph of the opinion in Natl. Collegiate Student Loan Trust 2003-1 v. Beverly, 2014-Ohio-4346:

    “{¶ 68} In case No. H-13-010, we grant the Civ.R. 60(B) motion for relief from the June 25, 2012 default judgment and vacate the default judgment. In case No. H-13-011, we grant appellants’ Civ.R. 60(B) motion for relief from the January 11, 2013 default judgment and vacate the default judgment. We remand both cases to the Huron County Court of Common Pleas for further proceedings. We order appellees to pay the costs of their respective appeals pursuant to App.R. 24.”

    The default judgments were vacated, but the Ohio 6th DCA didn’t order the cases dismissed, either with or without prejudice. It ordered remand for further proceedings. Vacation/reversal, or dismissal w/o prejudice, is more like a 2nd bite at the apple for a purported creditor.

    The Huron County Clerk has case dockets available online making a review of the dockets in Beverly’s cases an easy task.

    As it happened for Beverly NCSLT eventually filed for voluntary dismissal under CR 41(A) in both cases, one in late 2014, the other in fall of 2015. Beverly, and/or counsel, was either lucky, or good, or both. Most are not so fortunate. But even the voluntary dismissals in Beverly do not act as a bar to NCSLT, or another party, filing a subsequent suit.

    The coverage I’ve seen on this student issue thus far has drawn parallels to the foreclosure debacle of the past decade, and continuing. OK. Let’s look at that.

    I’ve been in contact with thousands of individuals, and families, in foreclosure in the past decade. Most are run over roughshod by the trial courts, often with the courts zealously disregarding rules of evidence, rules of procedure, and longstanding law. Very few can muster for an appeal. Appeals are 1) expensive, 2) complex, 3) extremely stressful. The likelihood is that a homeowner having lost in the trial court, even when having a solid case, won’t be able to muster for the appeal – they’ll run out of money, make a procedural misstep, or just crumble from the stress. They can also be dispossessed of the property, and evicted, during the pendency of the appeal. Imagine having to draft one of the most complex legal documents while being homeless. Ugh!

    Of the few that can muster, and prevail at the appellate level, the most common result is NOT a dismissal with prejudice, leaving plaintiff to either litigate further on remand, or simply file a new suit.

    There are numerous instances of folks prevailing in one proceeding only to have plaintiff file a subsequent 2nd, or even 3rd, suit. It took just a couple of minutes for me to recall these examples. It took considerably longer to find the case numbers. If I dug into some research on this I expect I could come up with hundreds of appellate examples.

    Abdullah Bourmarate, Florida 5th DCA, Case Nos. 5D12-1269, and 5D14-1379.

    David Verizzo, Florida 2nd DCA, Case Nos. 2D08-4647, and 2D15-2508.

    James Fitzgibbons, Florida 12th Judicial Circuit, Sarasota, Case Nos. 2007 CA 010649 NC, and 12-CA-001817-NC.

    Micah Schnall, COA of Washington Div. One, Case Nos. 68516-3-I, and 73522-5-I.

    Robert Frost, Florida 4th DCA, Case Nos. 4D09-2668, 4D15-534, and 4D16-262.

    Will the student loan debacle be different? We can hope. But we can also see from the foreclosure debacle the authors are comparing it to that dismissals don’t wipe out the debt, and don’t necessarily act as a bar to subsequent suits.

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