The Beginning of the Lawsuit
A lawsuit begins by filing a Summons and Complaint with the civil court in your county. The creditor pays a filing fee, the court enters the case into the system, and the court system is officially involved.
The creditor now has a limited amount of time to serve you and anyone else who they may be suing. Service can be performed in a variety of ways, including:
Personal Service: Someone personally delivers a copy of the Summons and Complaint to you, then files an affidavit with the court detailing the date, time and location of delivery.
Substitute Service: If the process server tries at least 3 times to serve you personally but is unable to do so, they can deliver the Summons and Complaint with someone over the age of 18 at your home or work location. The server must also mail a copy of the documents by regular mail at the location where the documents were delivered, and file an affidavit with the court regarding service.
Service By Mail: California allows the server to mail the papers to you by regular mail to your home or mailing address. The server then fills out a Proof of Service and files it with the court. New York also allows service by mail, but it’s considered valid only if you sign an acknowledgement and return it to the creditor.
Service by Publication: If the creditor can’t find you and doesn’t have your home or work address, the court may grant permission to publish the Summons and Complaint in a newspaper in the area where you’re likely to be.
Responding to a Student Loan Lawsuit
Once you’ve received the Summons and Complaint, the clock immediately begins to count down your time to respond. If you miss your deadline, the student loan lender’s attorney can request that a default judgment be entered against you. That judgment is the court’s final decision regarding your liability for payment of the student loan.
A judgment cuts off your defenses and eliminates your rights to force the student loan company to prove the case. That’s why you need to spring into action immediately by taking these actions.
Review the Summons and Complaint Carefully
The Summons and Complaint contains important information about the case to help you understand who’s suing you and the claims they’re making. Reviewing the court documents will tell you the following:
- Name of the entity suing you.
- Name and address of the law firm representing the student loan company.
- Case number and court location.
- Names of anyone else being sued.
- Information about the student loan.
- The amount they claim you owe.
With this information in hand, you can move onto the next step.
Check Your Records
Now that you know what you’re up against, you should spend some time gathering whatever information you have regarding the private student loan. You’re looking for documentation regarding any payments you may have made and correspondence you’ve received from student loan collectors. It’s a good idea to obtain a copy of your credit report as well because it may provide more insights about the loan history.
You may not have any records or documents about this private student loan, but it’s good to try your best.
Consider All Possible Defenses
In order for the creditor to win the case, you either have to default or show that they can’t prove all of the required elements of their case. Those elements include:
- You borrowed the money.
- You didn’t repay the private student loan.
- The amount being claimed as due is correct.
- The company suing you has the legal right to do so.
- The debt is legally enforceable and not past the statute of limitations.
Companies such as National Collegiate Student Loan Trust, Navient (Sallie Mae) and others are notorious for shoddy record-keeping and questionable accounting practices. That means there are a lot of defenses available to you when you’re being sued for a private student loan. Some of those defenses are:
- You never borrowed the money for the student loan.
- You believe the loan has either been paid in full or the amount claimed is incorrect.
- The student loan servicer put you into default in error.
- The company suing you has no legal right to do so because you don’t believe that they own the loan.
- You believe the statute of limitations has expired.
You have the right to raise any defense you believe to be true. Once you do, it’s up to the student loan company to prove the case.
File and Serve Your Response
Remember, you have a limited amount of time to file and serve a response to the Summons and Complaint. This response may be an Answer or a request that the case against you be dismissed.
This is usually when someone will want to meet with a lawyer who defends student loan lawsuits. Though many attorneys defend collection cases, student loan lawsuit defense is a far more complex matter. Private student loans are usually transferred through a complicated financial scheme called securitization, so the attorney needs to have a deep understanding of the way these transactions are structured. Beyond that, issues surrounding student loan interest capitalization make it difficult for most people to verify the amount due.
If you’re being sued for a student loan debt in either California or New York, you should meet with our Managing Attorney, Jay Fleischman, about your options. Jay has successfully defended hundreds of private student loan lawsuits brought by National Collegiate Student Loan Trust, Navient, Citizens Bank and more.