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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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3 YRS AFTER BANKRUPTCY MY DAUGHER IS BEING PURSUED BY GUARANTY

Resolved Question:

3 YRS AFTER BANKRUPTCY MY DAUGHER IS BEING PURSUED BY GUARANTY COMPANY CLAIMING SHE STILL OWES PERSONAL LOAN LISTED ON CA PETITION AS "STUDENT LOAN" WHAT TO DO??
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.
Hi JACustomer,
1) What was the personal loan used for?
2) Also, what is your legal question? (What would you like to know?)
Customer: replied 5 years ago.

STUDENT EXPENSES (MOSTLY JUST TO LIVE)

DID THE BK ATTY COMMIT MALPRACTICE BY MISCHARACTERIZING THE LOAN ON THE BK PETITION? DID THE ASSIGNEE OF THE LOAN HAVE A DUTY TO APPEAR AND CONTEST THE BK, OR BECAUSE LISTED AS STUDENT LOAN, NO NEED? THE DISCHARGE REFERS THE DEBTOR TO THE ATTORNEY FOR WHAT WAS DISCHARGED; ATTORNEY NEVER GAVE A WRITTEN LIST.

 

IS THERE AT STAT OF LIMITATIONS ON COLLECTION OF THE LOAN - THE BK WAS DISCHARGED IN 2009; DEBT COLLECTION ON THE "STUDENT LOAN" BEGAN A COUPLE OF MONTHS AGO.

 

SORRY, THIS IS REALLY UPSETTING. AM A TRUST AND PROBATE PARALEGAL AND KNOW ZERO ABOUT BK PROCEEDINGS. DAUGHTER GOT IN OVER HER HEAD IN GRAD SCHOOL!!

Expert:  cfortunato replied 5 years ago.

Was this private loan guaranteed by the federal government?

When was your daughter's last payment on this loan?

Customer: replied 5 years ago.

DO NOT KNOW -- YOU MEAN FDIC GUARANTEE OR SOME OTHER? CITIBANK TOLD HER IT WAS A PERSONAL LOAN, THO TERMED IT "STUDENT LOAN" DON'T HAVE THE DOCS - SHOULD I ASK FOR THEM? COLLECTION AGENT SWEARS IT WAS A STUDENT LOAN COVERED BY 2005 LAW, BUT WILL PROVIDE NO OTHER INFO - JUST TOO VAGUE.

 

HER LAST PMT WAS 3/23/09 (YES...); BK FILED 3/12/09 - DISCHARGED 6/23/09

Expert:  cfortunato replied 5 years ago.

It may and may not be a student loan. However, you will not know this by what the collection agency said, as one cannot believe anything they are told by a collection agency. You will have to look at the loan documents to determine if this was a student loan, and whether or not it was federally-guaranteed.

If it was a student loan, it was not dischargeable in your daughter's Bankruptcy. However, even if it was a student loan, the collection agency can not legally collect it after 4 years - because of the Statute of Limitations (SOL) - if and only if the loan was not federally-guaranteed.

If the loan was federally-guaranteed, it can be collected forever, as there is no SOL for federally-guaranteed student loans. 20 USC 1091a(a)(1).

If the loan was not a student loan, and it was listed on the Bankruptcy as a student loan, the above still applies, so it is unlikely that there would be a successful malpractice claim against the attorney.

 

I think this is what you wanted to know. If not, please let me know.
Thank you!

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