Procedural Question in Re Statutes of Limitations

[William O Orange]

I tried this question in the "student loan" forum but realize that it may be too technical for that board.

A Federal Statute of 1991 pre-empted the application of state statutes of limitations to student loans.

If a student loan debt went into default and the state SoL tolled PRIOR to the enactment of the 1991 law, is that loan "revived" by the federal act or does it remain limited/barred for purposes of court action?

If the Federal Act does act retroactively then is this not an ex post fact law? And if so is it not prohibited by the Constitution?

Compare for example, if a student loan was discharged in bankrupty prior to the federal act banning such discharges, the debts are not revived and remain discharged.

[calawyer]

This isn't a question, it's a law review topic.

You have identified most of the legal issues involved. What does the statute itself say about retroactivity. If it is silent, there are general rules about the retroactivity of statutory provisions that would kick in. I'm too many years out of law school to remember what they are.

Xan??

[William O Orange]

Calawyer, thanks for the response, and pardon my ignorance here. I don't have the stat in front of me but my recollection was that the stat said nothing about retroactivity.

Now as to the general rules re retroactivity, you're one ahead of me, you recall that you may have learned them years ago, I have no recollection of ever learning them

Now is Sutherland on Statutory Construction a good source for this?

However, if the Constitution says that Congress may not pass an Ex Post Facto law, doesn't this mean that Congress may not pass an ex post facto law or does it mean Congress may not pass certain laws as ex post facto but others which are ex post facto may be enacted because we call them something else?

I did locate a cite to a case which according to the reference was to relate as to how the act (HETA) is to be accepted as retroactive. However, upon reading it it did not. Instead it discussed as to how laches could not be applied to a student loan case. Similar indeed but not on point.

A separate question would be can a federal act barring application of its own SoL be valid or subject to constitutional challenge as an ex post facto law. My original question, I believe, has another angle: can the Federal Govt invalidate State SoLs or does this intrude on federalism/10th amendment concerns? While bankruptcy is federal law historically debt collection has always been state.

And before I'm done (don't you just hate someone who rambles on and on ), back on the laches question raised in the case I referenced. The Court stated that laches is not available to a defendant-debtor because the plaintiff is the Fed Govt and it possesses sovereign immunity. My recall is that sovereign immunity is available to the Govt ONLY when it is exercising "governmental powers" as distinct from proprietary powers, acting in its own business capacity. I would think that debt collection resulting from a loan guarantee is "business" and not governmental therefore sovereign immunity could not apply.

But then again, what the "H" to I know. 8)

[Recovering Attorney]

I used to work for a guarantee agency adn I know there was discussion on the 1991 act and all, but I can't recall. Basically, though, you are f----d

[Recovering Attorney]

what exactly is your situation?

[William O Orange]

My situation is that I am semi-retired, however even when I was practicing never did anything with consumer credit/collections matters. I was recently referred a young man (actually in his 40s but that's young to me) who had defaulted on a loan years ago and was being hounded by collectors. Didn't figure I could do much for him, advised him that there may be a possibility of asserting a hardship in bankruptcy ct. Referred him on to a friend who does BK.

But talking with him triggered memories of another case who had a similar situation 2 years ago. An older man approaching retirement, he had defaulted years and years ago due to cancer. Thought his loan was barred by SoL, which it was by Michigan law, and was even told so by the US attorney when it was routed the case from DofE (or guaranty__forget which). Two years before his retirement he gets hit by collections agency, threatened with garnishment. Now that might not be too bad but he was trust officer in a bank, garnishment would ruin him or so he thought. I didn't have much to offer him, at that time I also had to tell him that the feds might grab his social security when he did retire (it appeared that they were doing that in 2002).

A couple of weeks after my last visit with him I learned that he had died when his car went off the road and into the Lake. Funny thing was that an autopsy showed him at .13 blood alcohol and he was never known as a drinker. His wife got a nice insurance settlement and the student loan was cancelled of course. I never said anything to anyone but I think he killed himself rather than suffer the ignominy of a garnishment.

So, making a short story ever longer. When I talked to the other fellow recently I started thinking about loans, SoLs and such. And altho I don't have a client, (no regular access to Lexis or Westlaw) I do have time so I started prowling law-related boards and asking questions. I've always been sympathetic to the underdog and started thinking of various defenses that "should/could" have been raised if I had known any better.

Enough said.