Have Legal Questions? Ask a Lawyer Now.
Who received the proceeds/payout of the original student loan -- your wife, the friend or the school or college where the friend was attending classes?
The checks went to the original student. But after she received the checks she called and asked my wife to meet her at the bank to co sign the checks seeing how the checks were in the original students name and also my wife.
Typically the lender will only issue the checks to the school and then the school will send a check for any excess over the tuition amount to the student for living expenses. So the arrangement here was unusual. However, if your wife signed as a guarantor then she is as responsible as the person who received the money and can be pursued and sued as if she had received the money herself. This is true of cosigners for car loans, regular loans, etc (everything). With student loans, if it was originally a federally insured student loan (most of them are even with private lenders) then the lender does not even have to take the matter to court to get a garnishment on the wages and bank accounts of any borrower or co-borrower. However, if they are garnishing a guarantor then that person has the right to know how much is owed and how much is being paid down with the payments made from the garnishments and you can either ask an attorney to write the company a letter requesting the information or she can make a complaint with the Attorney General's office of consumer affairs in your state because the AG's office can and will force the company to give your wife an account regarding how much is owed and has been paid. Regarding how long your wife will have to pay this -- because your wife is 100% responsible for repayment in the written loan papers then the student loan company has the legal right to pursue her for all of the debt and they company does not have to pursue the primary borrower once they have begun receiving payments from a guarantor / co-signer of the loan (the loan paperwork states that the borrower and co-borrower are "joint and severally liable" for repayment of the loan - which means that the lender can pursue either of them separately or they can pursue them jointly - but that choice is completely up to the loan company and if they are receiving money from your wife then they have little incentive to pursue the original borrower and even if you sued the student loan company to try to force them to pursue the original borrower, the court would not rule in your favor because of the language in the contract that permits the student loan company to sue either your wife OR the original borrower or BOTH of them at the same time and each can be sued for the full amount of the loan.
Regarding the lawsuit against the original borrower -- if her lawyer has filed or does file a motion to dismiss then you or your lawyer must file an opposition to this motion (in writing). Your wife's contract with the original borrower was most likely a verbal contract which is enforceable for 4 years after the last action has been taken on the contract -- and because your wife is being forced to make ongoing payments then the statute of limitations starts again each time that your wife makes a payment on this loan that the other woman had agreed to pay. Once you overcome this issue it sounds like the borrower is going to try to claim that your wife used the money -- and you will have the burden of proof to show that your wife did not receive any benefits from this money (you will need witnesses or sworn affidavits from people to swear that they were aware of the loan arrangement and your wife did not receive any of it) and you can also get a blank subpoena form from the clerk's office at the court where the lawsuit is filed and you can issue this subpoena for a production of documents from any school that the friend was attending at that time -- so that you can prove to the court that it was the friend who was attending the school at that time and not your wife.
I hope that these explanations help -- I do suggest that you take all of the paperwork to a local attorney for review and explanation to you regarding the rights and responsibilities under the contract -- that is not something that i can do on this website and while it may cost you a few hundred dollars to have it done, the attorney can point you in the exact right direction by reading the documents (I can only generalize here) -- even if you decide not to hire an attorney and to represent yourself in the end.
Please press the 3rd, 4th or 5th star below so I will be paid for my time. I am paid NOTHING unless you press a positive rating below so I really DO appreciate it. Pressing the 3rd, 4th or 5th star underneath this answer box will NOT cost you any additional money -- it simply acts as a trigger to Just Answer to pay me for my time. THANK YOU VERY MUCH !!
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).