If you default on your federal student loans, the consequences can be pretty severe, but it’s generally unlikely that you will be sued. That’s because the federal government has enormously powerful tools to pursue defaulted federal student loan borrowers without the need for a court order. Federal lenders and debt collectors can garnish wages, intercept federal tax refunds, offset Social Security benefits, and seize federal income streams – all without stepping foot in a courtroom. While the feds do sue borrowers in some cases, especially when a borrower is not otherwise “reachable” through its normal collection methods, it’s not particularly common (at least in Massachusetts and New York, where I practice).
But private student loans are another story. Private student loan lenders do not have the same powers as the federal government. They generally cannot do anything to you without obtaining a court judgment first – and that requires that they file a lawsuit against you. But suing you is only the first step in the process.
Facing a private student loan lawsuit can be overwhelming and terrifying. If you find yourself being sued, there are some steps you can take to protect yourself.
Don’t Ignore the Lawsuit
The worst thing you can do if you are being sued by a student loan lender is ignore the lawsuit. Typically you have a short window of time to file a formal response (here in Massachusetts, an “Answer” or “Motion to Dismiss” must be filed within 20 days of the date of service), and by filing a timely response you get to have your day in court. If you ignore the lawsuit, then the student loan lender may automatically obtain a court judgment against you, and you may lose the opportunity to defend yourself.
You may be able to raise legitimate defenses to a student loan lawsuit. For example, if the lender waited too long to sue you, the debt may be time-barred by something called the Statute of Limitations. Or, perhaps you never took out a student loan from the company that is suing you, or you didn’t sign a contract with that company. Maybe the balance that the lender is claiming you owe is incorrect or unproven. The lender might be suing the wrong person, or they could have filed the lawsuit in the wrong court. Ultimately, the defenses you may be able to raise depends on your unique facts and circumstances, but the point is, if you don’t raise them in the proper way or at the right time, you may lose the opportunity to defend yourself.
Don’t Miss Your Court Dates
If you properly respond to the lawsuit, that’s just the first step. Litigation can take a long time. The court may schedule a hearing after processing your response. Depending on the state and court that you are in, this could be a simple status conference where the judge checks in to see where things are with the case, or it could be a hearing on the merits. You may be able to request some sort of court mediation session during the hearing. Whatever the specifics are, don’t miss your court date. If you do, it could result in a judgment being entered against you. If you have an emergency, contact the court clerk to see what the procedure is for requesting a postponement or continuance.
Be Respectful to the Judge
Judges are human beings, and while standing up in court can be intimidating, being polite and respectful can go a long way. Dress professionally for your court date (even if it’s just a status conference), speak calmly, and address the judge as “Your Honor.” Be respectful and calm even if you disagree with the judge. It’s ultimately the judge who’s going to be making the decisions in your case – not the student loan lender.
Obtain Legal Counsel
You are not required to hire an attorney if you are being sued by a student loan lender. But getting help from an attorney can be helpful. The rules that govern how a lawsuit works can be complicated and confusing, and dealing with judges and opposing attorneys can be intimidating. Having someone in your corner to help you navigate the process can go a long way in alleviating stress and increasing your chances of a positive outcome. Depending on the court and the state where you live, you may be able to hire an attorney for a limited purpose (such as a legal consultation, assistance with a court document, or a single appearance for a specific hearing), or you can retain an attorney to defend you from start to finish. I defend many student loan lawsuits here in Massachusetts, but if you’re not local and you need an attorney, a good place to start would be the National Association of Consumer Advocates.