Possibility of Mental Incapacity Defense

Cancel Student Debt and win #CollegeForAll
#1

Hi!

I am new to the community here but the topic of fighting debt collection, and the possibility of organizing a debt strike has been something that has been on my mind for many years.

I assume that there are some people here that are lawyers or have judicial background and can lend a bit of color to an idea that I have about discharging student debt.

The basis of the idea is to create support for challenging student debt through the claim of mental incapacity. In my personal case, I have zero recollection of signing any of my student loan documents, or of the period during which I attended University. My sister committed suicide during the summer between my freshman and sophomore years, and I was being heavily medicated with an inappropriate cocktail of drugs by a school psychiatrist. I know this because of my school medical records. Additionally, I am told that I was heavily abusing drugs and alcohol. It is my belief that the combination of these two things would be a sufficient defense for mental incapacity, and being that there were no co-signers on my loans, then they should be discharged as I was in no state of mind to be signing a legal agreement.

I know that I am woefully ignorant of the law and that is why I wanted to post this here to see if there are any people with experience with this line of defense, or just more generally familiar with the legal system and how this might play out.

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#2

Hi @tbrose,

Welcome to the Debt Collective community. I’m glad you are here, but I am so sorry that you went through this.

I am not a lawyer so I really can’t speak to whether or not there is a possible legal challenge for a case like this.

May I ask which school you attended? Have you requested the Master Promissory Note for these loans? If so, do they show an electronic signature or a real signature by hand? If by hand, is it yours?

I’m asking mainly because while I don’t know if there is a legal challenge for mental incapacitation, there may be other ways we can dispute this debt depending on the circumstances.

-Thomas

#3

Hey Thomas,

Thanks for your reply. I am really interested in trying to resolve my own personal situation, and I will request the Master Promissory Note - I have not done so previously. I have not had any contact with the the servicer for I believe 5 years now. I don’t recall signing any paperwork at all, I am leary of contacting them - should I be?

I think it is worthwhile exploring further how we may be able to contest student loans by proving incapacity. I know that the law makes it fairly explicit that you cannot enter into any sort of legal agreement if you are incapacitated. This can mean potentially that if you can prove you are were under the influence of drugs, alcohol, or perhaps even medications that could present side effects that would render you of unsound mind, then you have a legal argument that the contract is invalid. Does the organization have someone who can speak to what the burden of proof would be for proving such a case? I think that if a case like this were able to be won in a court of law, it could set a really valuable precedent for battling student loan companies.

I, personally, will take the steps of requesting the Master Promissory Note. What steps should I do after that? Should I have any concern about contacting the servicer?

Thanks brother.

-TR

#4

I don’t think there is any danger of contacting the servicer. The MPN should have a signature on it of some kind. It will provide us with some clues (is it your real signature? Is it obviously not your signature? Is it an electronic signature? In that case it still counts, but it is a lot harder to tell who actually signed in that case).

Then again if they can’t produce the MPN for some reason you’ve got a huge advantage. But they probably will be able to.

Since I’m not a lawyer I’m not really the right person to explore the legal question here. We are organizers, not lawyers. You could try reaching out to your local legal aid society.

#5

Hey Thomas,

Cool. I will contact them regarding the MPN. I was worried that making any contact might possibly be used to restart the statute of limitations.

I will reach out to legal aid societies. I am based in nyc, and I know of a few, but I think they mainly deal with issue specific casework, such as housing, discrimination, etc.

I would like to try and find an answer though, as it I think that if it is a possible defense then it could be of use to your organization.

Kindly,

≈≈ TR

#6

If these are federal student loans, there is no statute of limitations.

If these are private student loans 1) don’t acknowledge their legitimacy and 2) don’t make a payment on them, no matter how small. Even a $1 payment will restart the statute of limitations.

But requesting the MPN shouldn’t.

#7

Hey Thomas,

Yeah they are private and I have not recognized their legitimacy for some time. It was refreshing to find your organization because I have shared the same mentality, but did not know that there was a resource for combatting these companies.

-TR

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#8

When was the last time that you made a payment on these loans?

It can be very hard to tell which state law applies to any particular debt (is it the state the loan was originated in? Where you lived when the loan originated? Where you live now? Where the school is?) but in many states it is six years.

#9

So, I did contact an attorney to inquire about the other line of defense, which it seems is infeasible, but he also seemed to imply that the statute of limitations would be for NY where I currently reside. I have not made any payments since at least 2016, and have had no contact in fact.

Is it possible for them to sue me for default judgement, if they cannot locate me, or do they have to serve me with papers as an absolute before winning any sort of judgement.

-TR

#10

They are supposed to serve you with a subpoena in order to seek a judgement against you.

I am not a lawyer. I think there are rules/procedures they are supposed to follow if they cannot locate you.

What we run into often, however, is people getting their wages garnished out of the blue who were never served papers. It’s the first time that they learn there is a default judgement that was filed, sometimes years ago. Then it becomes I huge issue to get a lawyer and go through the process of vacating the judgement.

So the main takeaway here is that if you ever get notified by your employer that they are about to garnish your wages, you should take action immediately to dispute the garnishment. Usually you have 30 days to do that from the first notification of garnishment. Disputing it right away should buy you some time to prevent the garnishment from ever starting, and maybe even being able to vacate the judgement all together.

Again I am not a lawyer. I’m just a lay person who has tried to help some other people in similar situations.