Some debt collectors for private student loans are finding it difficult to collect because they can't prove they actually own the debt. According to the New York Times, "Judges have already dismissed dozens of lawsuits against former students, essentially wiping out their debt, because documents proving who owns the loans are missing."
A little background. The federal government is the largest student-loan lender; it now holds $1.4 trillion in outstanding federal-loan debt. But there is also a smaller private student-loan market. About $108 billion is private student loans is held by banks and private financial agencies like Sallie Mae.
National Collegiate Student Loan Trusts, an umbrella name for 15 trusts, holds about $12 billion of the total private student-loan debt. More than 40 percent of that debt--$5 billion--is in default; and National Collegiate has been aggressively pursuing defaulters in court. According to the Times, the trusts brought 800 collection cases last year--an average of 4 a day.
But National Collegiate has a big problem: when it goes to court it often cannot prove it is legally entitled to collect on the debt. How did that happen?
Many of these student loans were taken out more than 10 years ago by dozens of private banks. These loans were then bundled together into securities and sold to investors. A lot of this debt was sold and resold several times before it wound up in the hands of National Collegiate's trusts.
Somewhere along the way, a lot of important paperwork got lost, and now National Collegiate often can't prove it owns the underlying debt it seeks to collect. As a result hundreds of its debt collection cases have been thrown out of court. Boo hoo!
This is essentially the same problem that arose during the home mortgage crisis of 2008. Home mortgages were packaged into asset-backed securities and then sold and resold to various investors. When the loans went into default, the owners of the repackaged mortgages often could not prove they were entitled to collect the debt.
I have a few comments on National Collegiate's troubles.
First, the federal government doles out $150 billion a year in student aid. No one should be going to private lenders for student-loan money. If the higher education industry had any integrity, it would discourage students from taking out private loans. But our rapacious colleges and universities don't care if their students are taking out private loans to pay tuition.
Second, the private student-loan market grew after Congress passed the so-called Bankruptcy Reform Act of 2005, which made private student loans nondischargeable in bankruptcy unless the borrower could prove undue hardship. The banks know that their student-loan customers will find it almost impossible to discharge their private loans in bankruptcy.
Third, the banks have further protected themselves against losses by requiring student borrowers to find co-signers for their student loans. Millions of parents and grandparents have cosigned private loans for their relatives and are liable to repay them if the student defaults. And bankruptcy isn't an option for grandma or grandpa because they too are subject to the undue hardship rule.
In short, the private student loan industry is a sleazy business and ought to be shut down. Congress could close this industry almost overnight if it repealed the undue hardship standard in the 2005 Bankruptcy Reform Act. And colleges and universities could help shut the industry down if they would publicly discourage their students from taking out private loans.
Personally, I don't give a damn if National Collegiate and its investors lose a ton of money because they don't have the paperwork proving they own the student loans they purchased. After all, National Collegiate is a sophisticated party. If it purchased debt without obtaining the necessary documents proving ownership, it deserves to have its collection cases thrown out of court.
Stacy Cowley and Jessica Silver-Greenberg. As Paperwork Goes Missing, Private Student Loan Debt May Be Wiped Away. New York Times, July 17, 2017.