Author |
Topic Search Topic Options
|
mpoku
Newbie
Joined: 04/June/2015
Location: Toronto
Points: 6
|
Post Options
Thanks(0)
Quote Reply
Topic: Loan Written Off but Just served with Small Claims Posted: 04/June/2015 at 5:18am |
Hi, I had a $16,000 old CIBC student loan written off and this currently shows up on my credit bureau as being written off. Now, way back I had made payments to a collection agency, like over 10 years ago and then I guess they sold my account to another collection agency who then started harassing me. I have never acknowledged that this loan is mine nor does it appear that the new agency has any documentation from the previous one (they dont even have history of my payments) and now they have sent my file to a lawyer to has now served with with a plaintif's claim. I do not feel I should have to pay this since my original loan was written off. I need as much advice as I can get because I have to respond to this claim by June 20. I am knowledgeable in the legal aspect but not where old student loans is concerned. I am thinking this is statute barred and they are just trying to see if maybe im one of those people who know nothing at all about the law and will be scared in paying up on a loan that the govt wrote off over 6 years ago. Thanks in advance everyone :)
|
|
Sponsored Links
|
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(0)
Quote Reply
Posted: 08/June/2015 at 10:33am |
Is the law firm KRMC in Toronto or McInnis Cooper on the east coast?
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|
mpoku
Newbie
Joined: 04/June/2015
Location: Toronto
Points: 6
|
Post Options
Thanks(0)
Quote Reply
Posted: 08/June/2015 at 10:34am |
Yes it is.
|
|
mpoku
Newbie
Joined: 04/June/2015
Location: Toronto
Points: 6
|
Post Options
Thanks(0)
Quote Reply
Posted: 08/June/2015 at 10:34am |
Sorry it's KRMC.
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(0)
Quote Reply
Posted: 10/June/2015 at 1:48pm |
Grace Latini?
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|
RobertRuse
Newbie
Joined: 04/June/2014
Points: 5
|
Post Options
Thanks(0)
Quote Reply
Posted: 10/June/2015 at 2:17pm |
Keep us posted on this development. I guess my only question to someone who is knowledgeable in this area of law is: if you made a payment ten years ago and the ontario limitations act was amended an took into affect January 2004(where no provincial loans have a Statute of Limitation), does this mean that your payment somehow restarted the clock and is now within the purview of the ontario limitations act that was amended. keep us updated on this situation and its development.
and question for johnny, if the province acquired this loan from the bank and is a gurantor(from my research the gurantor is not suppose to exercise more rights than the original creditor which would be the bank in this individuals case.
would you say im correct?
|
|
mpoku
Newbie
Joined: 04/June/2015
Location: Toronto
Points: 6
|
Post Options
Thanks(0)
Quote Reply
Posted: 10/June/2015 at 5:17pm |
No, Sean butt. Any info you can provide me. I have to file my defence next week.
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(0)
Quote Reply
Posted: 11/June/2015 at 6:29am |
Filing a defense is easy enough. dealing with the matter out of court would be the best thing. Otherwise, you incur costs and a truck load of headaches for yourself. I can't do anything for you unless you are a client and there are fee, and the amount depends on what the scope of work is in your case. What do you want to see happen here? what are your desired and expected results? The reality at the moment is you are being sued for a student loan that you either owe - or do not owe. If you owe it, then that is not much of a defense unless you have some form of dispute about the amount owing, and/or how the debt came about. Their attorney will simply want to strike out your dense and go for judgment if it is one that can be determined as weak. OR, you could hire a lawyer to file a notice of intent to defend, which ties things up. On that same plane of realty though you don't want to do things that would undermine your case, such as annoying the plaintiff enough to not want to remedy outside of legal proceedings. My way of doing things is very strategic and effective. It is all about building new relationships, changing the way they (opposition) thinks and behave towards you, and solving problems instead of creating new ones that cause bias in the cultural and attitudinal arenas. Saves money, time, and creates opportunity. Simply put. And Robert, any payment made by you is an acknowledgement, or admission of liability/guilt, in whichever context the limitation issue and law requires. Also, the bank is only the loan provider under the risk-shared program. The "original creditor" in the case of the student loan is the government and not the bank.
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|
mpoku
Newbie
Joined: 04/June/2015
Location: Toronto
Points: 6
|
Post Options
Thanks(0)
Quote Reply
Posted: 11/June/2015 at 7:26am |
Thank you for your suggestion. What i am going to do is file a defence but first, im consulting with a coworker (I work in a law firm as a law clerk) who is a partner lawyer and is looking over my claim and will advise me on how best to defend so I will keep you all posted with what happens here. The 2004 Limitation issue has arose so my coworker wanted to look over the claim to see if he can find any loopholes and advise me accordingly.
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(0)
Quote Reply
Posted: 11/June/2015 at 10:04am |
A limitation defense is a good one - IF there is one. The burden of proof is then shifted to them.
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|
studentmess
Newbie
Joined: 05/November/2014
Points: 30
|
Post Options
Thanks(0)
Quote Reply
Posted: 11/June/2015 at 10:49am |
Johnny wrote:
A limitation defense is a good one - IF there is one. The burden of proof is then shifted to them.
| I would be confirming that a limitation option exists before going down that route. When was this loan secured and it what province?
|
|
administrator
Admin Group
Joined: 25/January/2003
Points: 1798
|
Post Options
Thanks(1)
Quote Reply
Posted: 11/June/2015 at 4:35pm |
Here are the rules for small claims court for Ontario assuming this is an Ontario issue. http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/It's important to review the limitations. In Ontario, the govt passed legislation removing limitations on student loans back in 2004 I believe. Know the time limitations. There may be a limit on how
long you can wait before making a claim. In most cases, a claim can't be
filed if more than two years has passed since the incident. If you're
not sure what limitation period applies to your case, you should consult
a lawyer. See the Limitations Act. http://www.ontario.ca/laws/statute/02l24#_ga=1.1146673.1211285353.1434040172Make sure you click on the '12 more' link on this page to see previous versions of the law. I see they removed the limitations on student loans back in 2004 or around then... Is this the federal or provincial part of your loan?
|
Administrator Mark OMeara Author of Let Go and Heal: Recovery from Emotional Pain https://LaughSingWrite.com - http://bit.ly/heal2024
|
|
administrator
Admin Group
Joined: 25/January/2003
Points: 1798
|
Post Options
Thanks(1)
Quote Reply
Posted: 11/June/2015 at 4:44pm |
I would be very careful in the wording of your defense so that your defense statement does not acknowledge the loan, therefore removing any statute barred limitations... Make sure your law friend advises you on proper wording such as 'alleged loan'
And by the way, the lawyers are probably reading this forum too so don't give away all of your cards i.e strategy on this site, but do let us know how it goes....
And as a disclaimer, this is a discussion forum only and any information posted here should not be construed in any way as legal advice....
|
Administrator Mark OMeara Author of Let Go and Heal: Recovery from Emotional Pain https://LaughSingWrite.com - http://bit.ly/heal2024
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(1)
Quote Reply
Posted: 12/June/2015 at 5:37am |
Filing a limitation defense does not acknowledge the debt. Wording is key yes, but it is simple. Creditors can sue people even if a limitation issue exists. The onus is on the debtor to prove it. If the limitation issue were called out prior to the action being started then this wouldn't be happening. there are two ways to do this: 1) Call out a limitation issue and prove it quickly, if you can get the bank to work with you. Highly unlikely. 2) File a defense based on a limitation issue, and force them to prove that the loan is NOT barred. If you take option 2, then you best be prepared to act if the debt is not barred because you will have cost them more money and time, so they will be harder to deal/negotiate with. If your coworker is a lawyer, or well versed in procedural law in civil matters then this is good. CIBC's selection of attorneys with KRMC has a selection of "creditor's rights" attorneys. They fight and make things VERY difficult for people who they feel are frustrating the system. So, just be prepared. Mark, Ontario limitation law applies to that owed to the province. It does not apply to the federal government or CIBC in this case. The CIBC student loans are governed by the CSLA in the risk-shared years. Now, if the loan was granted under a provincial program and not the CSL program then that would be different. The banks involved in first and second generation are responsible to recover their own money once subrogation occurs.
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(0)
Quote Reply
Posted: 12/June/2015 at 5:42am |
Finding out if the CIBC loan is barred can be done though. I do this for people but like I said there is a cost because this is a valuable service to those who require the benefit, and are deserving of it from the protection and rights perspective. If it is determined to be an "escape plan" then I do not provide service to that group.
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|
Prime
Newbie
Joined: 19/March/2011
Points: 26
|
Post Options
Thanks(0)
Quote Reply
Posted: 09/May/2016 at 5:36am |
Hello. I have been away from this site for a while 3 years almost. Now once again dealing with an issue involving Ontario student loans and those limitation period laws. Your comments have been very helpful as they were 3 years ago. I am beginning to deal with these issues all over again, and begun looking into the Limitation Act. I believe that my issues are covered by pre 2002 Limitations Act. However this is no longer available on the Ontario Law website and is not available on the CanLII website ether. I believe my issues fall under the "transition period" (s24 Ontario Limitations Act 2002). Have you blogged on this transition period in relation to student loans? (I know this is a long time ago) If you have a link would be appreciated, so that I can read it over. This is one of the best sources I've found covering the s24 "transition period" under the Ontario Limitations Act 2002. (But it was written for lawyers by lawyers so very technical) http://www.practicepro.ca/practice/limitation.aspThank You.
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(0)
Quote Reply
Posted: 10/May/2016 at 5:10am |
I have been puttering around with various limitation issues on our Facebook page. Limitation issues in respect of Ontario student loans are quite complex. The article you posted was created by Gowlings in Ontario as a general publication.
A case for limitations in Ontario is very complex not only in the wording, but in the act of discovery. In a case of Ontario student loans, the government and legal system within it takes a very odd position on this chess board. They say there are no limitations at all after the coming into force of the no- limitation change. A loan agreement that was written up before this should be bound by the law at the time in which the contract was written. This, in my opinion, is how it should be. However, someone has to get this inside a court room and have a judge decide in order to create the jurisprudence for future cases. A VERY expensive way to prove a point.
I believe everyone who entered into a contract with the Ontario government for a student loan before the entry of the new no-limitation law has good argument to make. Law is law, and is always subject to interpretation.
Theoretically, if no action has been brought against a borrower before the coming into force of that old legislation, and the former limitation law had applied to that borrower and student loan, and in a hypothetical scenario that loan would due to bar out on May 1 2005, the prior limitation law should apply (if no action is brought against that borrower before the time prescribed by the prior law expires on May 1 2005). The new limitation law should be allowed to overlap, or "strike" a person's legal right. This is where I find Canadian law so unintelligible. Overlapping laws create this crisis.
The fact is that the old limitation law DOES apply to some people and the SOME that it applies to do benefit.
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|
SolveStudentDebt
Moderator Group
Joined: 05/November/2003
Location: Canada
Points: 5996
|
Post Options
Thanks(0)
Quote Reply
Posted: 10/May/2016 at 5:13am |
Typo above. Should read:
The new limitation law should NOT be allowed to overlap, or "strike" a person's legal right. This is where I find Canadian law so unintelligible. Overlapping laws create this crisis.
|
Solve Student Debt specializes in solutions for students and graduates in student loan default, and those at risk of defaulting. solvestudentdebt.com
|
|