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1. who is the named plaintiff in the suit?

National Collegiate Trust

2. what is the name of the firm handling the suit?

Patenaude & Felix A,P,C

3. how much are you being sued for?

28,xxx.xx

4. who is the original creditor?(if not the plaintiff)

Union Federal Savings Bank

5. How do you know you are being sued? (you were served, right?)

I was served

6. how were you served?

In person

7.  was the service legal as required by your state law?

Yes

8.  what was your correspondence (if any) by the people suing you before you think you were being sued?

I sent them a letter to three different addresses denying the debt in 2013 and asked them to stop contacting me because I believed it was included in my 2010 bankruptcy. 

9. what state and county do you live in?

Arizona: Maricopa County 

10. when is the last time you paid on the account? (looking to establish if you are outside the statue of limitations)

Never made a payment; the loan was taken out in 2007 and went into default in 2010 during my bankruptcy. I thought it was included so I started the process of rebuilding my credit. In 2013, I received a bill from them and sent them the letter I mentioned above.

11. What is the statue of limitations on the debt?

6 years

12. what is the status of your case? suit served? motion filed?

Answered with a general denial of all allegations on 10/7/2015.

Plaintiff filed 1st amended complaint on 10/13/2015.

I filed a motion to strike 1st amended complaint on 11/2, citing it was filed without being signed by the attorney, it was not conformed, and plaintiff did not have leave of court (no idea if it was accepted?).

Notice of Disclosure statement filed on 11/18. 

13. have you disputed the debt with the credit bureaus? (both the original creditor and the collection agency)

Yes. I have disputed it every time it shows up on my credit report because I thought it was included in my bankruptcy. I found out recently (after talking to a lawyer) I would have needed to go through the adversary process when I filed bankruptcy, but the bureaus have removed it every time. 

14. did you request debt validation before the suit was filed?

No.

15. how long do you have to response to suit? 

I already responded. I am looking for advice on whether I should continue to fight this (it's subject to compulsory arbitration) or try and settle. I have been advised my current life situation makes me collection proof, but I have a little bit of a 401k I can cash out to settle this if I absolutely have to. I am in a master's program that will have me unemployed for the next 3.5 years, but I don't want to worry about a judgement following me around. I also don't want to cash out a protected asset to settle a debt I thought was discharged. 

16. what evidence did they send with the summons? an affidavit? statements from the oc? contract? list anything they attached as exhibits.

The first set of documents I received contained a summons, certificate of compulsory arbitration, plaintiffs complaint citing "breach of contract," "open account," and "account stated" with nothing attached. There was NO account number listed in any of this and the plaintiff referred to it as a "line of credit."

 

​The amended complaint just lists "breach of contract" and the description is changed to "loan for academic purposes."  Attached was the "note disclosure statement" and "non-negotiable credit agreement" from the original creditor with my signature. They also attached what looks like a very generic "pool supplement" because none of the information is specific to my account. It lists three people as "witnesses" to the agreement but the names are typed out and there is no physical signature. The amended complaint was not signed by the attorney, it was not conformed by the court, and it was filed without leave of court based on the date I responded. 

 

 

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Ok, nevermind...if you had signed it in another state, the statute of limitations is 4 years.

 

Was the debt part of your BK?  Have you gone through your BK paperwork?  Has it been discharged?

 

In 2007, was the loan placed in forbearance for any period of time?  If so, when did it become active?

 

The 6 year Statute of Limitations may still apply, if this particular loan didn't get scooped up in your BK. 

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Ok, nevermind...if you had signed it in another state, the statute of limitations is 4 years.

 

Was the debt part of your BK?  Have you gone through your BK paperwork?  Has it been discharged?

 

In 2007, was the loan placed in forbearance for any period of time?  If so, when did it become active?

 

The 6 year Statute of Limitations may still apply, if this particular loan didn't get scooped up in your BK. 

 

Yes, the debt was a part of the BK but I have no way of knowing if it was included in the discharge for sure. I received generic notice of discharge when the BK was complete. My trustees assistant told me it would be included when I talked to her in Mar/2011, but the lawyer I spoke with in Oct/2015 said that it wouldn't have been discharge if I didn't go through the adversary process. I don't know if it went into forbearance or not? Is there any place I can look that up?

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You'd have to look through your old loan documents, statements & letters.  Forbearance will suspend the requirement to repay the loan.  This happens when you are currently enrolled in school, once you stop, the payments become due. You need to determine what the date of default is.  

 

In regards to your BK, is there a way to get a copy of your BK court filings & records?  It would be best to contact the atty you used for your BK, get a copy of everything.

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You'd have to look through your old loan documents, statements & letters.  Forbearance will suspend the requirement to repay the loan.  This happens when you are currently enrolled in school, once you stop, the payments become due. You need to determine what the date of default is.  

 

In regards to your BK, is there a way to get a copy of your BK court filings & records?  It would be best to contact the atty you used for your BK, get a copy of everything.

 

The original loan paperwork (included by the atty in the AMC) states a BK will trigger default. I filed my BK with the help of a paralegal but I made copies of everything. I don't know if this info helps, but the loan was listed on the schedule F, which is what I used as proof to deny the debt's validity back in 2013. The atty I spoke with most recently tried to look up my BK stuff to see how the loan was listed, but she couldn't see anything other than what I had copies of.

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If this was a student loan (public/private is irrelevant) and it wasn't handled properly, i.e. through an additional process, then it would not have been discharged in your bankruptcy.  It is extremely difficult to discharge student loans, not impossible but you have to be practically living on the street.

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If this was a student loan (public/private is irrelevant) and it wasn't handled properly, i.e. through an additional process, then it would not have been discharged in your bankruptcy.  It is extremely difficult to discharge student loans, not impossible but you have to be practically living on the street.

 

Yeah, that is what the lawyer told me too :( Is my best chance to try and settle this before arb? 

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Yeah, that is what the lawyer told me too :( Is my best chance to try and settle this before arb? 

 

That's completely up to you.  Is NCT the original creditor?

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Does the OC's loan documentation state that it is a "student loan" or academic loan?  

 

Does the promissory note contain a "Holder" section?

 

Yes, the paper work identifies it as "astrive undergraduate loan." I do not see a "holder" section in any of the terms, is there another term it might be under?

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@Odetotheteapot

 

I couldn't tell from your posts (or I missed it), but is this a federal student loan?  Or is it a private loan?   The reason I'm asking is because federal student loans have no SOL.

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Does the loan documentation tell you when, and how "default" occurs?  I would make priority #1, determining the date of default.  If this is time-barred, it will be your easy out.

 

It is a private student loan and they are within SOL ... any other ideas?

 

And thanks for the info so far ...

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@Odetotheteapot

 

Are you saying you were current on paying the loan until you declared BK in 2010?  I thought no payments were made.  Unless the loan was in forbearance during 2007 - 2010, then there's a chance the loan was in default before you filed BK.  It is important to define the exact date of the default.

 

What does your contract say about "default"?

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@Odetotheteapot

 

Are you saying you were current on paying the loan until you declared BK in 2010?  I thought no payments were made.  Unless the loan was in forbearance during 2007 - 2010, then there's a chance the loan was in default before you filed BK.  It is important to define the exact date of the default.

 

What does your contract say about "default"?

 

Ohh, ok I see. No, I did not make any payments at all on this loan. 

 

The credit agreement says the following under a section called "Whole Loan Due"

 

To the extent permitted by applicable law, I will be in default and you have the right to give me notice that the whole outstanding principle balance, accrued interest, and all other amounts payable to you under the terms of this credit agreement, are due and payable at once  (subject to applicable law which may give me a right to cure my default) if: (1) I fail to make any monthly payments with you when due, (2) I die, (3) I break any of my other promises in this credit agreement, (4) any bankruptcy proceeding is begun by me or against me, or I assign any of my assets for the benefit of my creditors, or (5) I make any false written statement in applying for this loan or any other loan or at any time during the deferment or repayment periods. If I default, I will be required to pay interest on this loan accruing after default. The interest rate after default will be subject to adjustment in the same manner as before default. Upon default, you may also capitalize any interest and fees (i.e. add accrued interest and unpaid interest and fees to the principal balance), and increase the margin used to compute the variable rate by two percentage points. 

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Did the lender ever send you a statement requesting payment?  Any letter, document, or statement showing a date of requested payment?  Late notices etc... 

 

What chapter BK was it?  How long did it take?  I ask this, because the court will apply an automatic stay during BK proceedings, which will toll the statute of limitations.  Just need to figure out the date of default, add the time in for the BK stay, and see if it reaches 6 years before they filed the case against you.

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Did the lender ever send you a statement requesting payment?  Any letter, document, or statement showing a date of requested payment?  Late notices etc... 

 

What chapter BK was it?  How long did it take?  I ask this, because the court will apply an automatic stay during BK proceedings, which will toll the statute of limitations.  Just need to figure out the date of default, add the time in for the BK stay, and see if it reaches 6 years before they filed the case against you.

 

The first bill they sent was in 08/2010 it was due 09/24/2010. I filed for bankruptcy on 09/28/2010. I think that technically I would have been in default at the point I didn't pay, but I don't know. It was a chapter 7 BK and I received the discharge on 01/10/2011.

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Which entity sent you the bill 08/2010?  NCT or Union Federal?  Does the documentation show when Union Federal sold the loan to NCT?  

 

The bill is from NCT. It is really weird wording, it looks like they sold it in march of 2007?

 

It says "This pool supplement (the "supplement") is entered into pursuant to and forms part of that certain Note Purchase Agreement (the "agreement") dated as of March 26th, 2007, by and between The First Marblehead Corporation and Union Federal Savings bank (the "program lender"). This supplement is dated as of September 20th, 2007. Capitalized terms used in the supplement without definitions have the meanings set forth in the agreement." 

 

What I find really odd is that my loan is dated for June 4th 2007 so I don't know how it could have been included in a sale that was prior to my loan even being disbursed. 

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It sounds like it was sold to First Marblehead, before it was sold to NCT.  

 

In the promissory note from Union Federal (the original note), does it contain any payment schedule, or loan terms?  Anything that can be construed as a payment due or owing?

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It sounds like it was sold to First Marblehead, before it was sold to NCT.  

 

In the promissory note from Union Federal (the original note), does it contain any payment schedule, or loan terms?  Anything that can be construed as a payment due or owing?

 

The promissory note says repayment was to start on 1/10/2010. 

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That's surprising they would request payment almost 3 years after the loan was made.  

 

By what you're saying, it appears the statute of limitations defense probably won't work.  Without seeing the documents, it will be difficult to articulate where the holes are in their records.  Although, it's likely the same with any JDB.  They still have to prove they own the account.  You're in Superior court, so *hopefully* you'll have a real judge.  You need to come up with a defense strategy, and start looking for leverage.  If it were me I'd look at the following starting places:

 

-  Check with a BK attorney to see if you can include this in your BK, and start the process asap.  I don't know much about BK law, but it's worth a look.

-  Fish through all the documents that were sent to you by the OC, and any subsequent JDB, and see if there are inconsistencies or blatant errors.

-  Look at the Promissory note and see if it contains a "holder in due course" language.  Also, any subsequent documentation you may have.

-  Find any letters, communications, etc... from NCT and see if there are any FDCPA violations.

-  Per the promissory note, see if you did any action that would have sent the loan into default before 2010.

 

I'd start there...

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