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I have an outstanding student loan that is 30 years old, can a collection company garnish my wages over this old debt

Brooklyn, NY |

I have a student loan that last month was 30 years old. I live in NYC and make 1200.00 a month take home pay. I have no savings and get by month to month. Today a company called FMS called and said they are going to garnish my salary. Can they do this? Please advise. Thank You Jerry C

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Attorney answers 3

Posted

Yes. There is no statute of limitations on student loans, and the collectors don't need to sue you to get a judgment before it can garnish.

That being said, it may be possible to file a declaratory judgment action in state court asking that the claim be rejected because of a legal argument called "laches." According to Wikipedia (which is pretty accurate in this regard):

Laches is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights", and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one’s rights in a timely manner can result in claims being barred by laches. Laches is a form of estoppel for delay. In Latin,

Vigilantibus non dormientibus í¦quitas subvenit.
Equity aids the vigilant, not the negligent (that is, those who sleep on their rights).

In most contexts, an essential element of laches is the requirement that the party invoking the doctrine has changed its position as a result of the delay. In other words, the defendant is in a worse position now than at the time the claim should have been brought. For example, the delay in asserting the claim may have caused a great increase in the potential damages to be awarded; or assets that could earlier have been used to satisfy the claim may have been distributed in the meantime; or the property in question may already have been sold; or evidence or testimony may no longer be available to defend against the claim.

The defense of laches resembles, but is not entirely analogous to, a plea that the period of time allowed under a statute of limitations has expired. Laches essentially alleges prejudicial delay and unfairness in the context of a particular situation, whereas statutes of limitation tend to define a specific legally prescribed period of time (after the cause of action has accrued) within which a lawsuit for a particular type of cause of action may be commenced or after which the right to recovery is barred. Moreover, although a lawsuit commenced within the time allowed by a limitations period is valid no matter how long it takes for the action to proceed to trial, laches can sometimes be applied even in a situation where a lawsuit has been commenced and any delays would otherwise be reasonable. It is generally allowed by a court when a defendant could reasonably have believed that the plaintiff was not going to exercise his or her legal rights and acted on that belief to his or her detriment.

This is a matter that you would almost certainly need a good trial lawyer forlawyer for, and it won't be inexpensive. I'd suggest that you contact Jay Fleischman, who would do this sort of work, at jay@drlcny.com. Tell him I referred you.

Brett Weiss
brett@BankruptcyLawMaryland.com
www.BankruptcyLawMaryland.com

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The Small Print: This response is for discussion purposes only. It isn't meant to be legal advice and you shouldn't treat it as such. If you want legal advice, speak with a local lawyer familiar with your state's laws who can review *all* of the facts and the law applicable to your situation.
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Posted

Although I practice in Maryland I doubt they can do anything. First the Staute of Limitations has probably run. And even if they obtained a judgment, if it was not revivied it probably has lapsed. Alot of time collection companies buy old debt and take a shot at collecting. So demand proof of what they have

Posted

There is no statute of limitations on student loans. It is possible for a creditor to collect a student loan that is 30 years old or even older.

However, you said you maid $1200 per month. Under federal law, only 25% of your take home pay can be garnished. It may be that your income is so limited that none of it could be garnished.

Generally, filing bankruptcy does not discharge a student loan. However, at some point you might be able to have the student loan discharged in bankruptcy under the hardship provisions.