My sister co-signed a student loan. The debtor won't pay anything, and she has now been paying $200/mo for five years. Does she have any recourse?
January 5, 2013 7:42 AM Subscribe
Ten years ago, my younger sister, at age 18.5, co-signed her then-boyfriend's student loan. He defaulted almost immediately. The creditors were after her for years, threatened wage garnishment, she negotiated with them and finally started paying them five years ago. She has now paid it down to 30k. The $200/month payment for her ex's student loans is a pretty significant fraction of her income. Is there anything that she can do legally or is she just stuck with the debt? She recognizes what she did was dumb, and that she is legally responsible for what she did.
If it matters, the original debt was incurred in IL, the debt was then sold to the Department of Education in FL (not clear on how that happened), and she now lives in CA. Ex lives in IL. She realizes that she was dumb and that she signed a legally binding document. Ex-boyfriend said "I'm not going to pay" and doesn't take her calls, but she believes he is intermittently unemployed and living with his physician parents.
Does she have any options? My parents had suggested maybe she could sue him, or retain a lawyer to threaten a lawsuit unless he negotiates. Or, is there a possibility she is eligible to be released as a co-signer because she has paid a certain number of on-time payments (more than 60 over the last five years)? We saw that another college loan insurer (Sallie Mae) does this, but couldn't find any info on the Florida Department of Education website. Any ideas or suggestions would be welcome.
Options she isn't willing to consider: not paying the debt. She already tried that, the creditors hounded her for five years and had contacted her employer to start garnishing her wages when she finally caved in and negotiated with them. Also, she has already repeatedly asked him to please pay his part, or at least come up with a payment plan - he is wholly unwilling to engage in it at all. He IS making money (according to several mutual friends) and his parents are very comfortably off (summer house, etc). She is making ok money, but things are tight - this expense has meant she has gone without health insurance for several years.
She doesn't have much money, but she will see a lawyer if it sounds like a lawyer might be able to do something. If the lawyer's answer would simply be "sorry, you were an idiot and now are liable for the remaining $30k" she would rather save herself the embarrassment and cost (she still finds this incident embarrassing). Thanks for your advice, mefites!
If it matters, the original debt was incurred in IL, the debt was then sold to the Department of Education in FL (not clear on how that happened), and she now lives in CA. Ex lives in IL. She realizes that she was dumb and that she signed a legally binding document. Ex-boyfriend said "I'm not going to pay" and doesn't take her calls, but she believes he is intermittently unemployed and living with his physician parents.
Does she have any options? My parents had suggested maybe she could sue him, or retain a lawyer to threaten a lawsuit unless he negotiates. Or, is there a possibility she is eligible to be released as a co-signer because she has paid a certain number of on-time payments (more than 60 over the last five years)? We saw that another college loan insurer (Sallie Mae) does this, but couldn't find any info on the Florida Department of Education website. Any ideas or suggestions would be welcome.
Options she isn't willing to consider: not paying the debt. She already tried that, the creditors hounded her for five years and had contacted her employer to start garnishing her wages when she finally caved in and negotiated with them. Also, she has already repeatedly asked him to please pay his part, or at least come up with a payment plan - he is wholly unwilling to engage in it at all. He IS making money (according to several mutual friends) and his parents are very comfortably off (summer house, etc). She is making ok money, but things are tight - this expense has meant she has gone without health insurance for several years.
She doesn't have much money, but she will see a lawyer if it sounds like a lawyer might be able to do something. If the lawyer's answer would simply be "sorry, you were an idiot and now are liable for the remaining $30k" she would rather save herself the embarrassment and cost (she still finds this incident embarrassing). Thanks for your advice, mefites!
IANAL -- but yeah. She needs to get him into court. Co-signing a loan doesn't typically make her liable instead, it makes her jointly liable with him, and all of this that she's paying is actually his (/ their) debt.
Alternately, and this may be cheaper and easier to start with, is to contact his parents and see if they're willing to take care of this problem, either by paying it off themselves or by making their son take care of it.
If I had a lot of money to kick around, I'd talk to a lawyer first, as she could pretty easily say some things to the parents that could hurt her position, but I think, in general, trying to resolve this amicably and outside of the court system is the way to go.
posted by toomuchpete at 7:54 AM on January 5, 2013 [5 favorites]
Alternately, and this may be cheaper and easier to start with, is to contact his parents and see if they're willing to take care of this problem, either by paying it off themselves or by making their son take care of it.
If I had a lot of money to kick around, I'd talk to a lawyer first, as she could pretty easily say some things to the parents that could hurt her position, but I think, in general, trying to resolve this amicably and outside of the court system is the way to go.
posted by toomuchpete at 7:54 AM on January 5, 2013 [5 favorites]
That's awful. It may be out of range of a criminal suit, but it could sit well within civil law. There are lots of free legal advice clinics she can speak with to find the next steps. Lawyers are not cheap, but if she has a case, there should be a way.
posted by nickrussell at 7:56 AM on January 5, 2013 [1 favorite]
posted by nickrussell at 7:56 AM on January 5, 2013 [1 favorite]
Do his parents know that this has all happened? I would start w/ them if at all possible (via registered mail) and let them know that she wants to settle this w/out having to go the lawyering route, but that she's carried this for much longer than is really reasonable given the situation, and that he needs to fix this.
My parents, at least, would be totally horrified and embarrassed and would shame me mercilessly into making things right. I'm sure that they'd also just take care of it if I was unable to for whatever [good] reason. I like to think that most people's parents don't want their kids engaging in this kind of behavior.
posted by Medieval Maven at 8:02 AM on January 5, 2013 [23 favorites]
My parents, at least, would be totally horrified and embarrassed and would shame me mercilessly into making things right. I'm sure that they'd also just take care of it if I was unable to for whatever [good] reason. I like to think that most people's parents don't want their kids engaging in this kind of behavior.
posted by Medieval Maven at 8:02 AM on January 5, 2013 [23 favorites]
She should consider talking to a bankruptcy lawyer. Usually student loans are nondischargeable, but there is a hardship exception. If she is truly unable to afford health insurance because of her ex's debt, she may have a case for hardship. A lawyer who deals with this stuff every day will be a good judge of whether this qualifies.
Bankruptcy lawyers see this kind of situation and worse day in and day out, so they won't judge her for it.
posted by payoto at 8:26 AM on January 5, 2013 [4 favorites]
Bankruptcy lawyers see this kind of situation and worse day in and day out, so they won't judge her for it.
posted by payoto at 8:26 AM on January 5, 2013 [4 favorites]
The first thing I'd do is clarify whether they're coming after her for all his student loans or just those she signed for. That is, my recollection is you sign separately for different years and different lenders, but once the loans get sold who knows if they're bothering to be careful about that.
I'm not a lawyer, but suing him seems like an expensive and complicated way to force him to declare a bankruptcy. He can't get rid of the student loan debt that way, but I think he can get rid of your sister's claim on what she has paid out.
I think talking to a lawyer about this is not a bad plan though to figure out when and how to eventually sue once he has assets. I imagine there are time limits on when she can sue over which payouts.
posted by Monsieur Caution at 8:29 AM on January 5, 2013 [2 favorites]
I'm not a lawyer, but suing him seems like an expensive and complicated way to force him to declare a bankruptcy. He can't get rid of the student loan debt that way, but I think he can get rid of your sister's claim on what she has paid out.
I think talking to a lawyer about this is not a bad plan though to figure out when and how to eventually sue once he has assets. I imagine there are time limits on when she can sue over which payouts.
posted by Monsieur Caution at 8:29 AM on January 5, 2013 [2 favorites]
The parents probably don't care. If his girlfriend co-signed a student loan for him, it's probably because his parents couldn't be bothered. I'd start with a lawyer, not with the parents.
posted by ifandonlyif at 8:31 AM on January 5, 2013 [10 favorites]
posted by ifandonlyif at 8:31 AM on January 5, 2013 [10 favorites]
Call his parents. If it were my son who suckered a young woman into that, I'd be horrified and apologetic about the whole thing.
posted by discopolo at 8:40 AM on January 5, 2013 [1 favorite]
posted by discopolo at 8:40 AM on January 5, 2013 [1 favorite]
Jeebus, if ever there was a time to call a lawyer, this is it. And not a bankruptcy lawyer, either. Cosigners are jointly liable for loans, but the main borrower is also liable (to the lender and to the cosigner for any amounts the cosigner pays). If the guy has money, your sister ought to be able to get (some of) it. Courts will be not be impressed with her youth/inexperience/stupidity in co-signing the loan, but they'll be even less impressed with the ex's behavior.
I wouldn't call the guy or the parents before talking with a lawyer.
IAAL, IANYL, TINLA.
posted by spacewrench at 8:50 AM on January 5, 2013 [27 favorites]
I wouldn't call the guy or the parents before talking with a lawyer.
IAAL, IANYL, TINLA.
posted by spacewrench at 8:50 AM on January 5, 2013 [27 favorites]
My guess is that parents that raised a child so selfish and irresponsible as to dump his education debts onto an ex-girlfriend (Also, why the hell didn't they co-sign his loans?) will probably not be the nice type of people who will be "horrified" by their son's actions. They'd probably be more the type to excuse his irresponsible behavior. Get a lawyer.
posted by katyggls at 8:55 AM on January 5, 2013 [11 favorites]
posted by katyggls at 8:55 AM on January 5, 2013 [11 favorites]
Get a lawyer and in addition to the loan issues make sure the lawyer explores the fraud issues that may have arisen (in terms of his representations to her, etc.) There may be a few different ways to approach this.
posted by fingersandtoes at 9:36 AM on January 5, 2013 [2 favorites]
posted by fingersandtoes at 9:36 AM on January 5, 2013 [2 favorites]
Lawyer. Do not contact him or the parents, let the lawyer do it. You don't know what the parents or the ex are doing and what scams may be occurring. Jesus, ten years of her financial life! This is a case of being kind or passive is going to do any good.
posted by jadepearl at 9:40 AM on January 5, 2013 [10 favorites]
posted by jadepearl at 9:40 AM on January 5, 2013 [10 favorites]
Lawyer. Immediately. Preferably someone who specializes in interstate debt collections. There are so many interesting legal problems here that it could be a bar exam question, but the first thing she needs is a consultation with someone who can tell her things like whether her claim against the jerk is time-barred, and which state's laws would be most advantageous for bringing a claim.
posted by 1adam12 at 9:45 AM on January 5, 2013 [3 favorites]
posted by 1adam12 at 9:45 AM on January 5, 2013 [3 favorites]
If someone owes you money, and you're trying to collect a debt, do you have the right to disclose information to a third party? IANAL, but I'll bet there are some restrictions on doing that. Assuming ex-BF is an adult, and his parents are not a party to the debt, your sister should not discuss it with them at all. Nthing the lawyer.
posted by in278s at 9:49 AM on January 5, 2013 [1 favorite]
posted by in278s at 9:49 AM on January 5, 2013 [1 favorite]
If the lawyer's answer would simply be "sorry, you were an idiot and now are liable for the remaining $30k" she would rather save herself the embarrassment and cost (she still finds this incident embarrassing).
So your sister is willing to pay $30k to avoid being temporarily embarrassed in front of a stranger? No, that is completely unacceptable. Lawyer. Now.
posted by zebra at 10:46 AM on January 5, 2013 [18 favorites]
So your sister is willing to pay $30k to avoid being temporarily embarrassed in front of a stranger? No, that is completely unacceptable. Lawyer. Now.
posted by zebra at 10:46 AM on January 5, 2013 [18 favorites]
Lawyer first. Most will give you an initial interview for either a small fee or nothing. You will at least be advised of your options.
Then decide how to rake this jerk....um, try to get this guy to face up to his responsibilities. Going to the parents makes no sense at all.
posted by mule98J at 11:37 AM on January 5, 2013
Then decide how to rake this jerk....um, try to get this guy to face up to his responsibilities. Going to the parents makes no sense at all.
posted by mule98J at 11:37 AM on January 5, 2013
Lawyer and only lawyer. Do not go to the parents. This is literally what lawyers are for. Which is more effective: a phone call from a stranger/ex asking for money, or a letter from a legal professional on letterhead, laying out the facts, obligations, and potential repercussions involved very clearly?
Exactly.
posted by anonnymoose at 11:52 AM on January 5, 2013 [5 favorites]
Exactly.
posted by anonnymoose at 11:52 AM on January 5, 2013 [5 favorites]
If she happens to live in Los Angeles, please memail me.
posted by insectosaurus at 12:24 PM on January 5, 2013 [1 favorite]
posted by insectosaurus at 12:24 PM on January 5, 2013 [1 favorite]
Co-signing a loan doesn't typically make her liable instead, it makes her jointly liable with him, and all of this that she's paying is actually his (/ their) debt.
IAAL, IANYL (or your sister's lawyer). I have a creditor's rights practice with some bankruptcy experience, although I do not hold myself out as a bankruptcy lawyer.
I think the quoted statement is not accurate. Unless it is the world's friendliest loan, the sister is jointly and *severally* liable. The creditor doesn't have to come after the ex-BF at all if it doesn't want to. I get this line all the time when I sue guarantors. It never works because that is what the law says.
That said, your sister has a common law indemnification right against the boyfriend for the payments she made (and possibly contractual, based upon the loan agreement). Since the ex-BF is in Illinois and your sister is in California, Illinois is the place she will need to sue him unless she can establish some type of minimal contacts to California such as running a business venture or otherwise "reaching out" to California. A few trips to Disneyland won't count.
As a lawyer, I don't recommend a lawyer's letter. The reason is that I can count on one hand the number of times I have even heard of a lawyer's demand letter resulting in the payment of money. If your sister is going to sue, skip the letter and hire an Illinois lawyer to sue. Letters go into the trash but if you serve a summons, you get an answer in 20 days. (or whatever is the time frame for Illinois)
Here is what my crystal ball says: the ex-BF will file for bankruptcy in response to your sister's indemnification suit, discharging his liability for all of the pre-petition payments your sister made. Even if he doesn't file for bankruptcy and your sister gets a judgment, that doesn't mean the court strokes her a check. She has to enforce the judgment, which will require an Illinois lawyer. Enforcing a judgment is very hard. I have millions of dollars worth of judgments sitting on my desk that have not been paid a dime. The reason is that if a deadbeat doesn't have money to pay his bills, he doesn't have money to satisfy a judgment. (how wealthy his parents are doesn't matter in the slightest) Also, there are a number of exceptions from execution available to individual debtors, although these vary from state to state. The court being "unimpressed" with a jerk does not make these difficulties go away.
By all means, consult with a lawyer and learn your sister's options, but I think the outlook is not favorable (I think your sister already knows this). The lawyer's going to say mostly what I wrote here. Some people are cheering for her to "lawyer up", but whenever someone tells you what a great idea a lawsuit is, please ask them if they have ever been a plaintiff and had the much-vaunted "day in court" (on their dime, not the insurance company's). I think a lawsuit in this case is good money after bad. The money spent on court costs and attorney fees would be better spent paying down this debt.
Regarding the hardship exception, that is rarely granted. Your sister would have to show that she cannot maintain a minimal standard of living while making the payments, and that her financial situation is not likely to improve ("certainty of hopelessness" is a common standard). And no, going without health insurance is not below a minimal standard of living. I know of at least one case that calls those seeking discharge of student loans to be the most unsympathetic of debtors. I do not know that your sister is bankruptcy material, anyway. Bankrupt means that one cannot pay one's bills as they come due. I don't see that in your question.
Someone mentioned potential fraud. There is not even the whiff of fraud to be found in the facts you presented.
Maybe the FDOE will cut a deal with her. I don't know. In general, student loan creditors don't have much incentive to cut deals for reasons I and others have already discussed.
Best of luck to your sister. TINLA.
posted by Tanizaki at 1:05 PM on January 5, 2013 [21 favorites]
IAAL, IANYL (or your sister's lawyer). I have a creditor's rights practice with some bankruptcy experience, although I do not hold myself out as a bankruptcy lawyer.
I think the quoted statement is not accurate. Unless it is the world's friendliest loan, the sister is jointly and *severally* liable. The creditor doesn't have to come after the ex-BF at all if it doesn't want to. I get this line all the time when I sue guarantors. It never works because that is what the law says.
That said, your sister has a common law indemnification right against the boyfriend for the payments she made (and possibly contractual, based upon the loan agreement). Since the ex-BF is in Illinois and your sister is in California, Illinois is the place she will need to sue him unless she can establish some type of minimal contacts to California such as running a business venture or otherwise "reaching out" to California. A few trips to Disneyland won't count.
As a lawyer, I don't recommend a lawyer's letter. The reason is that I can count on one hand the number of times I have even heard of a lawyer's demand letter resulting in the payment of money. If your sister is going to sue, skip the letter and hire an Illinois lawyer to sue. Letters go into the trash but if you serve a summons, you get an answer in 20 days. (or whatever is the time frame for Illinois)
Here is what my crystal ball says: the ex-BF will file for bankruptcy in response to your sister's indemnification suit, discharging his liability for all of the pre-petition payments your sister made. Even if he doesn't file for bankruptcy and your sister gets a judgment, that doesn't mean the court strokes her a check. She has to enforce the judgment, which will require an Illinois lawyer. Enforcing a judgment is very hard. I have millions of dollars worth of judgments sitting on my desk that have not been paid a dime. The reason is that if a deadbeat doesn't have money to pay his bills, he doesn't have money to satisfy a judgment. (how wealthy his parents are doesn't matter in the slightest) Also, there are a number of exceptions from execution available to individual debtors, although these vary from state to state. The court being "unimpressed" with a jerk does not make these difficulties go away.
By all means, consult with a lawyer and learn your sister's options, but I think the outlook is not favorable (I think your sister already knows this). The lawyer's going to say mostly what I wrote here. Some people are cheering for her to "lawyer up", but whenever someone tells you what a great idea a lawsuit is, please ask them if they have ever been a plaintiff and had the much-vaunted "day in court" (on their dime, not the insurance company's). I think a lawsuit in this case is good money after bad. The money spent on court costs and attorney fees would be better spent paying down this debt.
Regarding the hardship exception, that is rarely granted. Your sister would have to show that she cannot maintain a minimal standard of living while making the payments, and that her financial situation is not likely to improve ("certainty of hopelessness" is a common standard). And no, going without health insurance is not below a minimal standard of living. I know of at least one case that calls those seeking discharge of student loans to be the most unsympathetic of debtors. I do not know that your sister is bankruptcy material, anyway. Bankrupt means that one cannot pay one's bills as they come due. I don't see that in your question.
Someone mentioned potential fraud. There is not even the whiff of fraud to be found in the facts you presented.
Maybe the FDOE will cut a deal with her. I don't know. In general, student loan creditors don't have much incentive to cut deals for reasons I and others have already discussed.
Best of luck to your sister. TINLA.
posted by Tanizaki at 1:05 PM on January 5, 2013 [21 favorites]
If nothing else works (and after this much time, it doesn't look good in terms of getting the ex to cough up), she may be able to negotiate a smaller payout to discharge the debt. Organisations that buy debts like this are often keen to get rid of the debt if they think there is a risk of it not being fully recovered or of taking many years to do so. Don't forget that they almost certainly bought the debt for much less than the value of the debt at the time they bought it. If your sister is in a position to obtain finance for a smaller amount, she may be able to make an offer of something like $20k. This would at least reduce her overall debt and, likely, the payments as well. You'd be surprised at how much the debt owner would be prepared to discount for an early payout. It costs them money to maintain the debt, after all.
posted by dg at 2:02 PM on January 5, 2013
posted by dg at 2:02 PM on January 5, 2013
Organisations that buy debts like this are often keen to get rid of the debt if they think there is a risk of it not being fully recovered or of taking many years to do so.
But student loans are a notable exception. The law gives creditors unusually strong leverage here and they can keep coming after her for years and years if necessary, because the law will (and will likely) be on their side.
Don't forget that they almost certainly bought the debt for much less than the value of the debt at the time they bought it.
This is student loan debt, not consumer debt. It's basically an entirely separate ball of wax.
Tanizaki's advice here is the best you're going to get. The law designed this entire system so that the money it guaranteed will get back to the creditor one way or another, and specifically made student loan debt non-dischargeable by bankruptcy (because, in a cynical world, then everybody would just go to school and walk away from paying for it). You really need to make sure that the boyfriend is being held liable to the maximum extent possible under the law and this is only going to be possible with an attorney. In the longer run, there may possibly be action at the federal level, but politically it's not likely given the GOP stranglehold on the House (and it's not like the Democrats are unanimous on pushing for relief, either).
posted by dhartung at 3:01 PM on January 5, 2013
But student loans are a notable exception. The law gives creditors unusually strong leverage here and they can keep coming after her for years and years if necessary, because the law will (and will likely) be on their side.
Don't forget that they almost certainly bought the debt for much less than the value of the debt at the time they bought it.
This is student loan debt, not consumer debt. It's basically an entirely separate ball of wax.
Tanizaki's advice here is the best you're going to get. The law designed this entire system so that the money it guaranteed will get back to the creditor one way or another, and specifically made student loan debt non-dischargeable by bankruptcy (because, in a cynical world, then everybody would just go to school and walk away from paying for it). You really need to make sure that the boyfriend is being held liable to the maximum extent possible under the law and this is only going to be possible with an attorney. In the longer run, there may possibly be action at the federal level, but politically it's not likely given the GOP stranglehold on the House (and it's not like the Democrats are unanimous on pushing for relief, either).
posted by dhartung at 3:01 PM on January 5, 2013
Re a theory of fraud - there was none mentioned, but the circumstances here are so weird, and so outside of a typical student loan signing, that I wonder whether some case might not be able to be made that he induced her to sign for this loan by some sort of misrepresentation. There are such thing as unconscionable contracts, and there are such things as predatory loans, and while we don't know that's what happened here, we don't know that it didn't. That's why I'm suggesting that she go to a lawyer and discuss ALL the facts - their relationship, any promises or threats he may have made her that induced her to do this unfortunate thing, his income, her education and circumstances at the time of the signing, where they got this loan, etc and see whether there's anything that might take this case outside of the typical outcome.
posted by fingersandtoes at 5:39 PM on January 5, 2013
posted by fingersandtoes at 5:39 PM on January 5, 2013
the circumstances here are so weird, and so outside of a typical student loan signing, that I wonder whether some case might not be able to be made that he induced her to sign for this loan by some sort of misrepresentation.
I don't see what is so weird about a boyfriend and girlfriend being cosigners on a loan. But, the misrepresentation has to be about a material fact. That really isn't going to fit for a loan agreement unless you want to say that there was some misrepresentation about the terms of the contract, but that's all going to be on the face on the document. There can be no fraud in the inducement for facts that are contradicted by the language of the contract. If there is an integration clause i.e. a clause that says "no party has relied on any other party's representations in entering this contract", good luck. It doesn't bar a fraud claim outright, but it makes it all the more difficult.
What you are talking about is fraud in the performance, which really doesn't exist. The only way to get a fraud claim for failure to perform is if one contracting party, at the time of entering the contract, had no intention whatsoever of performing. I've never seen that done. How do you prove what the ex-BF was thinking at the time he and OP's sister signed? Also, his default is anticipated by the contract - that is the whole point of cosigning. To make a fraud argument, you have to have the OP's sister saying, "I signed because I thought you might not pay, but I wouldn't have signed if you were definitely not going to pay." I don't know how persuasive that theory is. I think there is a problem with reasonable reliance as well. One has to reasonably rely on a misrepresentation of fact. I think the primary borrower telling the cosigner, "don't worry, I'm good for it" gets said just about every single time.
This is a fine distinction that is hard sometimes, but there is only fraud in the inducement of contract, not in the performance. For example, if I wanted to sell you a ring and to induce you to buy it I say that it has a top quality diamond, if I then take your money and hand you a ring with a cubic zirconia, you have a claim for fraud in the inducement (and also for breach of contract). However, if I receive your money now and say I will deliver you the top quality diamond ring next Wednesday, when I show up with the fake ring, you do not have a fraud claim but only a breach of contract claim.
For unconscionability, you have to show procedural and substantive unconscionability. Procedural unconscionability is something like holding a gun to someone's head as they sign or if a contract term was inserted in an underhanded way, like if you gave someone five minutes to read a 30-page contract and if they didn't sign their dad would not be admitted to surgery and would die, so they agreed to a clause to hand over their firstborn son. Substantive unconscionability is when the terms of the contract are so incredibly harsh, oppressive, or one-sided that they shock the conscience. You have to show both, and even if you do, it doesn't void the contract. The court will generally try to reform the contract instead because there is a general policy of enforcing contracts. I don't know how you get there in this case. OP's sister can't exactly say that as a cosigner, it is unconscionable for her to be held liable for the default of the primary borrower. And, there is no indication that she didn't know exactly what she was committing to when she signed. Maybe there is a predatory student loan out there, although I have never heard of it, but the court is still just going to reform it instead of void it. This is all going to happen in Illinois, by the way. Oh, and if she wants to say the contract is predatory or unconscionable, she gets to sue the creditor along with the boyfriend.
I forgot to add in my first comment that lawyers cost money. If $200/month is a hardship for OP's sister, she can't afford a retainer for an out-of-state lawyer. I would certainly want a retainer of several thousand dollars for this out-of-state client.
The only good thing a fraud claim gets the OP's sister is that it wouldn't be dischargeable in bankruptcy, and there is certainly no reason not to plead it along with the indemnification claim, but I think it's a very tough claim to prove.
Everything I have discussed in this thread is based upon issues I have litigated as a creditor's right lawyer. I deal with these matters every day when debtors raise all the issues you listed such as "education and circumstances". I just tell them "paç fat" and get a judgment (if they don't file for bankruptcy first).
posted by Tanizaki at 7:47 PM on January 5, 2013 [2 favorites]
I don't see what is so weird about a boyfriend and girlfriend being cosigners on a loan. But, the misrepresentation has to be about a material fact. That really isn't going to fit for a loan agreement unless you want to say that there was some misrepresentation about the terms of the contract, but that's all going to be on the face on the document. There can be no fraud in the inducement for facts that are contradicted by the language of the contract. If there is an integration clause i.e. a clause that says "no party has relied on any other party's representations in entering this contract", good luck. It doesn't bar a fraud claim outright, but it makes it all the more difficult.
What you are talking about is fraud in the performance, which really doesn't exist. The only way to get a fraud claim for failure to perform is if one contracting party, at the time of entering the contract, had no intention whatsoever of performing. I've never seen that done. How do you prove what the ex-BF was thinking at the time he and OP's sister signed? Also, his default is anticipated by the contract - that is the whole point of cosigning. To make a fraud argument, you have to have the OP's sister saying, "I signed because I thought you might not pay, but I wouldn't have signed if you were definitely not going to pay." I don't know how persuasive that theory is. I think there is a problem with reasonable reliance as well. One has to reasonably rely on a misrepresentation of fact. I think the primary borrower telling the cosigner, "don't worry, I'm good for it" gets said just about every single time.
This is a fine distinction that is hard sometimes, but there is only fraud in the inducement of contract, not in the performance. For example, if I wanted to sell you a ring and to induce you to buy it I say that it has a top quality diamond, if I then take your money and hand you a ring with a cubic zirconia, you have a claim for fraud in the inducement (and also for breach of contract). However, if I receive your money now and say I will deliver you the top quality diamond ring next Wednesday, when I show up with the fake ring, you do not have a fraud claim but only a breach of contract claim.
For unconscionability, you have to show procedural and substantive unconscionability. Procedural unconscionability is something like holding a gun to someone's head as they sign or if a contract term was inserted in an underhanded way, like if you gave someone five minutes to read a 30-page contract and if they didn't sign their dad would not be admitted to surgery and would die, so they agreed to a clause to hand over their firstborn son. Substantive unconscionability is when the terms of the contract are so incredibly harsh, oppressive, or one-sided that they shock the conscience. You have to show both, and even if you do, it doesn't void the contract. The court will generally try to reform the contract instead because there is a general policy of enforcing contracts. I don't know how you get there in this case. OP's sister can't exactly say that as a cosigner, it is unconscionable for her to be held liable for the default of the primary borrower. And, there is no indication that she didn't know exactly what she was committing to when she signed. Maybe there is a predatory student loan out there, although I have never heard of it, but the court is still just going to reform it instead of void it. This is all going to happen in Illinois, by the way. Oh, and if she wants to say the contract is predatory or unconscionable, she gets to sue the creditor along with the boyfriend.
I forgot to add in my first comment that lawyers cost money. If $200/month is a hardship for OP's sister, she can't afford a retainer for an out-of-state lawyer. I would certainly want a retainer of several thousand dollars for this out-of-state client.
The only good thing a fraud claim gets the OP's sister is that it wouldn't be dischargeable in bankruptcy, and there is certainly no reason not to plead it along with the indemnification claim, but I think it's a very tough claim to prove.
Everything I have discussed in this thread is based upon issues I have litigated as a creditor's right lawyer. I deal with these matters every day when debtors raise all the issues you listed such as "education and circumstances". I just tell them "paç fat" and get a judgment (if they don't file for bankruptcy first).
posted by Tanizaki at 7:47 PM on January 5, 2013 [2 favorites]
As with sooooooooo many Metafilter questions... this is one that can only be answered by a real-life lawyer in the flesh talking to a client/prospective client.
posted by IAmBroom at 3:12 PM on January 6, 2013 [1 favorite]
posted by IAmBroom at 3:12 PM on January 6, 2013 [1 favorite]
Please tell you sister to not ever be embarrassed for someone else's bad behavior. She tried to help someone she trusted and got scammed. It happens to people all the time. She was 18 when it happened and anyone who thinks less of her for it is being a jerk.
Since the lawyer question has been answered, I'm discussing the taking it public route. I'm not sure why it would be illegal to talk to his parents (could be wrong so ask a lawyer to cover yourself). It's not like she's giving out a bank account number. It's her financial situation and I'd think she'd be free to discuss it with others. It's worth a shot.
The other thing to consider is that people are being affected by their online reputation. This might be a way for your sister to put some pressure on her ex. For example, I have a friend who has a wall of shame for people who have stolen/ripped him off in some way. I thought it was kind of stupid when he did it but he's actually had people pay him back to get their name taken down. One was an ebay scammer (maybe $400 five years after it happened), one was someone he went to high school with who stole a couple hundred dollars worth of stuff out of his minibarn years before and the last was a guy who sold t-shirts but never mailed (got his money back). 3 out of less than a dozen people is pretty impressive for a freebie website. My friend is too broke to be worried about lawsuits so have your sister ask a lawyer how to do this legally.
If she sticks to facts only, I'd think she'd be safe from libel. Look into buying his fullname.com as a web site. Put up all the facts after running it by a lawyer. Put up any old photos she has of him and what city he lives in. If every potential employer, girlfriend or anyone else he wouldn't want to know sees this when they search his name, it might put some pressure on him to pay his debts. I'm not a lawyer, just someone who hates it when someone gets scammed so have your sister make sure this is legal. I just wanted to let you know that it has worked for someone else so she could at least look into it.
posted by stray thoughts at 10:58 PM on January 6, 2013
Since the lawyer question has been answered, I'm discussing the taking it public route. I'm not sure why it would be illegal to talk to his parents (could be wrong so ask a lawyer to cover yourself). It's not like she's giving out a bank account number. It's her financial situation and I'd think she'd be free to discuss it with others. It's worth a shot.
The other thing to consider is that people are being affected by their online reputation. This might be a way for your sister to put some pressure on her ex. For example, I have a friend who has a wall of shame for people who have stolen/ripped him off in some way. I thought it was kind of stupid when he did it but he's actually had people pay him back to get their name taken down. One was an ebay scammer (maybe $400 five years after it happened), one was someone he went to high school with who stole a couple hundred dollars worth of stuff out of his minibarn years before and the last was a guy who sold t-shirts but never mailed (got his money back). 3 out of less than a dozen people is pretty impressive for a freebie website. My friend is too broke to be worried about lawsuits so have your sister ask a lawyer how to do this legally.
If she sticks to facts only, I'd think she'd be safe from libel. Look into buying his fullname.com as a web site. Put up all the facts after running it by a lawyer. Put up any old photos she has of him and what city he lives in. If every potential employer, girlfriend or anyone else he wouldn't want to know sees this when they search his name, it might put some pressure on him to pay his debts. I'm not a lawyer, just someone who hates it when someone gets scammed so have your sister make sure this is legal. I just wanted to let you know that it has worked for someone else so she could at least look into it.
posted by stray thoughts at 10:58 PM on January 6, 2013
I'm not sure why it would be illegal to talk to his parents (could be wrong so ask a lawyer to cover yourself).
I defend a lot of debt collection claims, and here is a reason. While the federal Fair Debt Collection Practices Act applies only to debt collectors, many states have enacted their own consumer debt laws that are more expansive. For example, the debt collection law in my state makes *any* person involved in collecting a debt potentially liable. Even if the OP's sister makes a website that is absolutely true (and therefore safe from defamation), truth would not be a defense to a debt collection claim against the OP's sister under my state's consumer collection law. Same for talking with the parent's about it. Of course, each state is different.
It is hard for me to imagine that shamemyexbf.com is a good idea.
posted by Tanizaki at 7:57 AM on January 7, 2013
I defend a lot of debt collection claims, and here is a reason. While the federal Fair Debt Collection Practices Act applies only to debt collectors, many states have enacted their own consumer debt laws that are more expansive. For example, the debt collection law in my state makes *any* person involved in collecting a debt potentially liable. Even if the OP's sister makes a website that is absolutely true (and therefore safe from defamation), truth would not be a defense to a debt collection claim against the OP's sister under my state's consumer collection law. Same for talking with the parent's about it. Of course, each state is different.
It is hard for me to imagine that shamemyexbf.com is a good idea.
posted by Tanizaki at 7:57 AM on January 7, 2013
This question has stuck in my head since seeing it a few days ago. What a completely terrible situation for your sister. Even if she's legally responsible for her ex-boyfriend's debt of around $42,000 (!!!), the moral responsibility is fully with him -- and his presumably well-off physician parents, who thought it was fine for an unrelated teenager to take on their son's student debt.
The other people who've chimed in here have been on the mark with the "lawyer, lawyer, lawyer" responses -- of course that should be your sister's first action before she does anything else. I am not a lawyer nor any sort of expert in student debt.
Yet I wonder -- like Stray Thoughts above -- if, in the absence of all other options, there may be some legal, ethical way to publicly out the ex-boyfriend and his family, in a way that would prompt them to actually take responsibility for this. Instead of making a website with the ex-boyfriend's name -- which would seem sketchy and hard to verify -- would she consider contacting the newspaper in the city or town where the ex and his parents live? An enterprising reporter or columnist would probably love to use your sister's story as a cautionary tale about teenagers signing legal papers they don't fully comprehend, and the subsequent ramifications. The fact that she has already paid $12,000 of his debt while forgoing her own healthcare -- while the ex and his parents are laughing it off -- should make readers sympathetic to her.
And of course the newspaper's libel/defamation lawyers would have to vet this, but the paper might be willing to include the ex-boyfriend's name and even contact the parents for a quote and include their names. If the parents are doctors with public reputations to uphold, they might want to start making amends before the article was published.
Of course, if she considers taking the above route, your sister should ***absolutely*** talk with her own lawyer and not just trust the opinion of the newspaper's lawyer (who would be looking out for the publication's interests, not hers). She may decide it's not worth it to go public like this. (If the newspaper has an online comment section, there will surely be many comments supporting her, but a few others like "HA HA stupid bitch has to pay up HA HA" -- and if her name is fairly unusual, the story will be linked with her in search results for a long time.) Only she can decide if that'd be worth it.
Your sister should not be embarrassed about this. Good luck to her, whatever she decides.
posted by lisa g at 1:21 PM on January 7, 2013
The other people who've chimed in here have been on the mark with the "lawyer, lawyer, lawyer" responses -- of course that should be your sister's first action before she does anything else. I am not a lawyer nor any sort of expert in student debt.
Yet I wonder -- like Stray Thoughts above -- if, in the absence of all other options, there may be some legal, ethical way to publicly out the ex-boyfriend and his family, in a way that would prompt them to actually take responsibility for this. Instead of making a website with the ex-boyfriend's name -- which would seem sketchy and hard to verify -- would she consider contacting the newspaper in the city or town where the ex and his parents live? An enterprising reporter or columnist would probably love to use your sister's story as a cautionary tale about teenagers signing legal papers they don't fully comprehend, and the subsequent ramifications. The fact that she has already paid $12,000 of his debt while forgoing her own healthcare -- while the ex and his parents are laughing it off -- should make readers sympathetic to her.
And of course the newspaper's libel/defamation lawyers would have to vet this, but the paper might be willing to include the ex-boyfriend's name and even contact the parents for a quote and include their names. If the parents are doctors with public reputations to uphold, they might want to start making amends before the article was published.
Of course, if she considers taking the above route, your sister should ***absolutely*** talk with her own lawyer and not just trust the opinion of the newspaper's lawyer (who would be looking out for the publication's interests, not hers). She may decide it's not worth it to go public like this. (If the newspaper has an online comment section, there will surely be many comments supporting her, but a few others like "HA HA stupid bitch has to pay up HA HA" -- and if her name is fairly unusual, the story will be linked with her in search results for a long time.) Only she can decide if that'd be worth it.
Your sister should not be embarrassed about this. Good luck to her, whatever she decides.
posted by lisa g at 1:21 PM on January 7, 2013
IANAL, and I think it'd be quite a trick for the ex-bf to play the victim and claim that exposing people's private financial woes offends the sensibilities of a reasonable person. But on top of debt collection / consumer protection & privacy issues, "In most states you can be sued for publishing private facts about someone, even if those facts are true" (link goes to Citizen Media Law Project; see also the EFF's FAQ on this for bloggers). That's worth a thought before taking any private matter public just to shame or humiliate someone.
posted by Monsieur Caution at 5:07 PM on January 7, 2013
posted by Monsieur Caution at 5:07 PM on January 7, 2013
I've been looking into the legality of a website since I'm the one who brought the idea up. I, too, say that IANAL and this might not be the best option which if she was open to the idea is why she needs to talk to a real lawyer. This is what I've been able to find from general searching (ignoring all yahoo answers and similar sites).
It has been done before.
http://www.chrisroemmerwatchout.com/
It's used as an example from
http://www.howdoyougetrevenge.com/best-ways-to-get-revenge/
for GetPayback.com
The ""publishing private facts" link Monsieur Caution put up doesn't include examples where the person posting is putting up their own information (her being a co-signer and having to pay back his loans) which includes another person (the ex). The examples are more putting up someone's private information like medical conditions (ex. was aids), sexual orientation and history, and financial status. Since this would be how her financial status was affected by his actions, it might/might not be considered different under law. Also if any of the loan/debt collection/court proceedings are public record, that might exempt it from being considered private.
I found this writers site but I'm not sure how helpful it is. It does have a case (Bonome v. Kaysen) where a woman wrote about their ex-boyfriend who then sued for invasion of privacy but he lost. In some of the comments, someone mentioned that a publishing attorney is who you'd need to discuss this kind of thing with. A website is probably a different situation but they might be able to refer you to someone who deals with websites.
http://www.rightsofwriters.com/2011/01/can-you-tell-your-own-true-story-even.html
I'm not saying taking this public is her best option but after paying $12,000 ($200 a month for 5 years) and if she keeps paying and that rate, taking 13 more years to pay off the $30,000 he owes, all options should be considered. Monsieur Caution had a very good point that she should verify that she's only being held responsible for the loan she co-signed on and not other school loans the ex-boyfriend may have taken out. lisa g's idea of a human interest story by a newspaper (TV?) might be one to check into. Checking the legality of talking to his parents is something to check into. For over $40,000 worth of liability, it's probably worth talking to a lawyer about this. Best of luck to your sister in dealing with this, whatever she chooses to do.
posted by stray thoughts at 7:50 PM on January 8, 2013
It has been done before.
http://www.chrisroemmerwatchout.com/
It's used as an example from
http://www.howdoyougetrevenge.com/best-ways-to-get-revenge/
for GetPayback.com
The ""publishing private facts" link Monsieur Caution put up doesn't include examples where the person posting is putting up their own information (her being a co-signer and having to pay back his loans) which includes another person (the ex). The examples are more putting up someone's private information like medical conditions (ex. was aids), sexual orientation and history, and financial status. Since this would be how her financial status was affected by his actions, it might/might not be considered different under law. Also if any of the loan/debt collection/court proceedings are public record, that might exempt it from being considered private.
I found this writers site but I'm not sure how helpful it is. It does have a case (Bonome v. Kaysen) where a woman wrote about their ex-boyfriend who then sued for invasion of privacy but he lost. In some of the comments, someone mentioned that a publishing attorney is who you'd need to discuss this kind of thing with. A website is probably a different situation but they might be able to refer you to someone who deals with websites.
http://www.rightsofwriters.com/2011/01/can-you-tell-your-own-true-story-even.html
I'm not saying taking this public is her best option but after paying $12,000 ($200 a month for 5 years) and if she keeps paying and that rate, taking 13 more years to pay off the $30,000 he owes, all options should be considered. Monsieur Caution had a very good point that she should verify that she's only being held responsible for the loan she co-signed on and not other school loans the ex-boyfriend may have taken out. lisa g's idea of a human interest story by a newspaper (TV?) might be one to check into. Checking the legality of talking to his parents is something to check into. For over $40,000 worth of liability, it's probably worth talking to a lawyer about this. Best of luck to your sister in dealing with this, whatever she chooses to do.
posted by stray thoughts at 7:50 PM on January 8, 2013
I, too, say that IANAL
I am, and I have litigated the very issue of publicizing information about a consumer debt on many occasions, including cases I am handling right now. If you include cases regarding writing on the envelope that indicate that the contents are to collect a consumer debt, I have litigated the matter as defense counsel in class actions and at the appellate level.
The issue isn't "private facts". The issue is that collection of consumer debt is governed by federal and state statutes. For example, the federal Fair Debt Collection Practices Act prohibits a debt collector from communicating "with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector. " The website would run afoul of that, I think, as well as the general provisions against activities of which "the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt."
Of course, OP's sister isn't a debt collector; she is collecting her own debt, but you can see where this is going. The state consumer debt laws are generally state versions of the FDCPA, but more expansive. Sometimes, any person can be subject to the statute, even a creditor who is collecting her own debt. This is going to vary from state to state. The complex factor is that since you have suggested internet publication, the information will be published worldwide. The ex-boyfriend could use this to forum shop and file suit in a state that has a consumer collection law that would make OP's sister liable. There are defamation cases where a person in one state was deemed to have sufficient minimum contacts with another state based on internet postings that were composed in one state but viewed in the forum state. Whether or not she wins on a lack of personal jurisdiction defense is going to depend on that state's law.
I think publication to third parties of any kind is a bad idea. It is not worth the risk of liability, especially for an exercise that is more about indulging feelings than obtaining the payment of past due money.
posted by Tanizaki at 8:27 AM on January 9, 2013 [2 favorites]
I am, and I have litigated the very issue of publicizing information about a consumer debt on many occasions, including cases I am handling right now. If you include cases regarding writing on the envelope that indicate that the contents are to collect a consumer debt, I have litigated the matter as defense counsel in class actions and at the appellate level.
The issue isn't "private facts". The issue is that collection of consumer debt is governed by federal and state statutes. For example, the federal Fair Debt Collection Practices Act prohibits a debt collector from communicating "with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector. " The website would run afoul of that, I think, as well as the general provisions against activities of which "the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt."
Of course, OP's sister isn't a debt collector; she is collecting her own debt, but you can see where this is going. The state consumer debt laws are generally state versions of the FDCPA, but more expansive. Sometimes, any person can be subject to the statute, even a creditor who is collecting her own debt. This is going to vary from state to state. The complex factor is that since you have suggested internet publication, the information will be published worldwide. The ex-boyfriend could use this to forum shop and file suit in a state that has a consumer collection law that would make OP's sister liable. There are defamation cases where a person in one state was deemed to have sufficient minimum contacts with another state based on internet postings that were composed in one state but viewed in the forum state. Whether or not she wins on a lack of personal jurisdiction defense is going to depend on that state's law.
I think publication to third parties of any kind is a bad idea. It is not worth the risk of liability, especially for an exercise that is more about indulging feelings than obtaining the payment of past due money.
posted by Tanizaki at 8:27 AM on January 9, 2013 [2 favorites]
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posted by yarly at 7:48 AM on January 5, 2013 [4 favorites]