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  1. #1
    Join Date
    Mar 2011
    Location
    Delaware, OH
    Posts
    14

    Default Statute of Limitations for Private Student Loans

    My question involves collection proceedings in the State of: DE

    Currently there is a breach of contract attempting to be issued to me. No summons has yet been served on me. The debt was for a private student loan from 2002. I have NEVER made a payment but was in forbearance for a short period of time around 2006. I am hoping to use the SOL defense in my answer if and when I am served. Can you explain when the SOL period begins (I'm assuming it starts when the promissory note was signed)..does it start over after the forbearance period ends (meaning I would have six yrs after the forbearance period ends) or does forbearance simply suspend that time period then continues. The state of DE has a 6 yr statutue for promissory notes/breach of contract to my knowledge.

    Also any suggestion for how I would word the SOL defense in my answer?

    Thank you.

  2. #2
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Statute of Limitations - De

    It starts from when you are delinquent, i.e., when the first payment is due at the end of the forbearance period.
    It's only three years to my knowledge though. It is tolled (i.e., put on hold) if you are absent from the state.

  3. #3
    Join Date
    Mar 2011
    Location
    Delaware, OH
    Posts
    14

    Default Re: Statute of Limitations for Private Student Loans

    I really appreciate your help! So if the promissory note which also served as the application page of the loan (specific language stating it's not a promise to lend money though) states that if bankruptcy is filed then full payment is due immediately. So when the bankruptcy forbearance ended and bankruptcy finalized then the six year statute should begin correct?

    For DE I saw breach of contract to be six years unless I'm reading it wrong...although I would just make it for the six year SOL anyways. They have to serve me with a summons before the statute stops tolling correct? Or is is from the date they filed their petition in court which was over a year ago?

    Also the application for the loan/promisorry note shows the wrong univeristy and wrong amount...is there any valid defense to this?

    They have not sent any history of the loan (payments etc) they only have forwarded me a copy of the application/promissory note that was signed and an affidavit from the person in charge at the private loan institution there is an amount due from me. Are these enough to prove the loan if the school and amount are incorrect? Obviously I don't want to state the amount is wrong outright as I'll confirm the debt as mine.

    Again I really appreciate your help.

  4. #4

    Default Re: Statute of Limitations for Private Student Loans

    The SOL in your situation likely started to run as soon as the bankruptcy was finalized.

    What do you mean they filed their petition in court a year ago?

    Have you always lived in Delaware since school or did you move there recently?

  5. #5
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Statute of Limitations for Private Student Loans

    The cause of action must be filed before the statute of limitations runs, but states differ on how that relates to service. In some states if service is effected after the statute of limitations runs the plaintiff must show a good faith effort to effect service between the date the statute of limitations ran and the date service was made. If you are hiding from service or cannot be located, odds are the plaintiff will eventually seek permission from the court to serve you via substituted service.

    You either borrowed the money or you did not. Clerical errors on the promissory note (or is it just the application?) - errors you apparently chose not to point out or have corrected - don't affect whether or not you borrowed the money.

    If you want to dispute the amount the plaintiff claims you owe on the loan, you will have the opportunity to do that in court.

  6. #6
    Join Date
    Mar 2011
    Location
    Delaware, OH
    Posts
    14

    Default Re: Statute of Limitations for Private Student Loans

    The application/promissory note states if you file bankruptcy then payment is due immediately. I'm hoping that if this is is accepted then I may have an SOL option, as it's been over 6 years.

    I may owe the money but I cannot pay at the present time. My husband left with all our savings and I'm taking care of our son alone with all the bills. We live paycheck to paycheck and one more bill will put us on the street literally.

    Basically I just don't know what to do - the collection agency filed a breach of contract a year ago - they never served me and sent a letter to negotiate a few months back - they then asked the court for more time and are again trying to serve me. I've sent them letters asking for proof of the debt but they do not respond. I just don't know what to do.

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