This presentation should be construed as an overview of the issues discussed and not as legal advice to anyone attending this presentation or reading the accompanying handout. Specific legal questions regarding these concepts and their application to any institution of higher education should be directed to the institution’s legal counsel.
Top Ten Ways to Leave Money on the Table ◦ Amnesty Programs & Extended Letter Campaigns ◦ Agency Fees not in Sync with Collectability ◦ Poor Documentation/Validation ◦ No Student Signatures ◦ No Threat of Litigation ◦ Not Assessing Collection Costs
Top Ten Ways to Leave Money on the Table ◦ Long Retention Periods or No Recall at All ◦ Too Many Agencies / Not Enough Agencies ◦ Shelving Accounts ◦ No Settlement or Waiver Auth on A/R Balances ◦ Circumventing the Agency/Debtor Negotiation ◦ Agency Creaming
Portfolio Make-Up and Construction ◦ Work Effort, Data, Size, Type and Criteria Fee Rates Collection Costs Waiver Protocols
What’s Really Happening Have a Plan Communicate the Plan Provide Incentives Champion Challenger Be Consistent Gauge the Performance Over Time & Against Your Plan
Be Careful of the Reports Create Your Own Reports Also Watch the Numbers Administrative Closures BankruptciesDeceased CancellationsDeferment/Forb. Closed Accounts Per Clients Request Adjustments & Waivers Netback Dollars are Key
Speed of Placement/Activity Letter Series Looming Litigation Pay Attention to the PPA Inbound Calls Documentation Requests Collector Incentives House Accounts Adjustments in PPA
Collection & Company Philosophy Client Communication Reporting & Placement Flexibility Service & Attention Complimentary Correspondence
11 U.S.C. § 523(a)(8) (a) A discharge under … this title does not discharge an individual debtor from any debt— (8) unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents, for (A)(i) an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution; or
(A)(ii) an obligation to repay funds received as an educational benefit, scholarship, or stipend; or (B) any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual.‖ Note the term ―qualified education loan‖ as defined under federal law and whether this definition will clear some of the current questions in our industry about what type of debt is discharged.
Internal Revenue Code § 221(d)(2) Qualified higher education expense is defined to mean: ◦ the cost of attendance (as defined in section 472 of the Higher Education Act of 1965 as in effect on the day before the date of enactment of this Act) as an eligible educational institution…
Section 472 of the HEA 20 U.S.C. 1087ll Cost of Attendance = Tuition/Fees normally assessed a student including materials and equipment for students in the same course of study. Books/Supplies/Misc. Personal Expenses Room & Board The statute should be reviewed for the context of each item listed above. This definition is broader than the current interpretation. Things such as room & board were historically challenged, but are not clearly protected from discharge – assuming the school’s debt qualifies as a ―loan.
Federal Debt vs. Institutional Debt What does the case law say about institutional debt?: ◦ Chambers, 348 F.3d 650 (7th Cir. 2003) ◦ Mehta, 310 F.3d 308 (3rd Cir. 2002) ◦ Renshaw, 222 F.3d 82 (2nd Cir. 2000) Basically – Funds need to have changed hands or there should be a signed agreement whereby the school provides services and allows for payment for those services at a later date.
The only way out When you are holding a non-dischargeable student loan, the only way for the debtor to have that debt discharged is to petition the court for an adversary hearing and then to receive from a judge a finding of ―undue hardship. There is the possibility for a partial discharge based on case law, but this is the minority rule and appears to be a judicially created remedy.
Undue Hardship The Majority Test – See Brunner v. New York State Higher Educ. Services Corp., 831 F.2d 395 (2d Cir. 1987). Three elements must be proven by a preponderance of the evidence. ◦ Based on current income and expenses the debtor cannot maintain a minimal standard of living. ◦ This situation is likely to persist for the duration of the repayment period. ◦ A good faith effort has been made to repay the loans. Often you will see an intervening circumstance that has dramatically affected the debtor’s earning potential.
Confirm a bankruptcy was actually filed ◦ Case #, filing date, and attorney name Education loans generally non-dischargeable Proof of Claim Review Chapter 13 plans and object if the plan discharges the education-related debt. Undue hardship exception filed through an adversary proceeding. Release of transcript or registration.
Statute of Limitations ◦ 6 years vs. 3 years Collection Cost ◦ Common Misconceptions Collection costs = the amount of the agency fees The federal regulations allow for collection costs on Perkins loans so it is okay to set up institutional debt the same way Agreements have to be promissory notes Notifying the student in collection letters that a fee will be added if the account is sent to an agency is sufficient There is a “right” to be “made whole” on institutional debt
The Fair Debt Collection Practices Act states that it is a violation to collect any amount that is not “expressly authorized by the agreement creating the debt or permitted by law.” See 15 U.S.C. 1692f. Further, state consumer protection statutes and unfair trade practices statutes may implicate creditors (schools) that are not compliant with state requirements regarding the addition of student paid fees. Agencies and Schools should demand compliance in the contracts that govern their relationships.