By Kyle Olson

Feel buried under student loan debt? According to some new research, you're definitely not alone.

Americans have recently racked up over $150 billion in private student loan debt. That figure is part of the $1 trillion student loan debt that has recently surpassed credit card debt as the nation’s number one cause of debt.

A staggering figure to envision, and a terribly transparent sign of our economy as a whole, student debt might be justified reaching these numbers if jobs were available to pay off said debt, according to experts.

Despite the amount of student loan debt that Americans have accumulated, many are unable to pay back their loans due to the extremely tough job market and low wages many post-graduates are earning.

The difference between the federal student loan debt and the private loan debt is that students with private loans aren't privy to forbearance or flexible payment options as with federal loans.

Many private student loans were dished out like hot cakes before the housing market crashed the economy. Many of these were loaned for more than the borrower needed, causing a long-term financial headache for the student.

Since then, borrowers have learned from these mistakes and made it harder for students to borrow more money than is actually needed.

However, it may be too little too late according to some experts.

What’s Being Done?

Now a federal agency is asking Congress to look into bankruptcy as an option to wipe out student loan debt, according to The Wall Street Journal. As nice as that may seem, a consumer advocacy agency says that will do little for the majority of borrowers who find themselves under mounds of debt.

However, as it stands, student loans cannot be discharged through personal bankruptcy, including Chapter 7 and Chapter 13 bankruptcy, among any other forms of bankruptcy.

Some ease has been put on federal student loans as of late after Congress voted to extend the 3.4% rate on federal subsidized loans that otherwise would’ve reached over 6-7% if not agreed upon.

Both private lenders and the American government can garnish borrowers' wages if the loans are defaulted on. What many people don’t know is that the government can withhold federal tax returns for Americans who default on their loans as well.

According to The Wall Street Journal, nearly 850,000 private loans went into default status between 1998-2009. During that same time period, nearly 2.1 million federal loans went into default.

Although many people fall into bankruptcy after their student loans go into default status, a bankruptcy option for borrowers would be a bad option due to the amount that taxpayers would be on the hook for.

Private student loans used to be dischargeable under bankruptcy laws like any other consumer debt, but under a 2005 change in the bankruptcy code, private student loans can no longer be discharged unless borrowers can prove undue hardship which is the same case for government backed student loans.

As drastic and critical as a situation the student loan debt is, experts say that something must be done to ease the burden on the many Americans stifled with debt.

In an unusual business bankruptcy case, a bankruptcy trustee has brought a civil lawsuit against the former owner of a company that was forced into bankruptcy protection after the collapse of the Ponzi scheme-style scam it had been running for several years.

Fair Finance Co. Bankruptcy Case Background

The case involves the bankruptcy of Fair Finance Co., based in Ohio, which, according to sources, defrauded investors between 2002 and 2009 by pretending to offer them consumer loans. In actuality, according to a March 2011 statement released by the Securities and Exchange Commission, the owners of Fair Finance Co. used much of the money they took in to fund other unprofitable companies, purchase luxury goods for themselves, funnel money to family members, and finance home purchases.

The SEC notes that the scheme involved more than 5,200 investors and took in roughly $230 million, which accounted for about 90 percent of the company’s total loan portfolio. At the time of the SEC investigation, three men at the company’s helm faced a dozen felony charges related to their misuse of consumer funds.

A Civil Suit in Bankruptcy Court

Just this week, though, another wrinkle emerged in the Fair Finance case, which went to bankruptcy court as part of efforts to recover the misused funds taken from consumers. Here’s what happened:

• The trustee overseeing the bankruptcy case brought charges against Donald Fair, who sold Fair Finance Co. in 2002 to the three men charged by the SEC.
• According to sources, the trustee has accused Fair of failing to blow the whistle on the fraudulent activities the three men carried out under the guise of providing consumer loans.
• Though Fair sold the business in 2002, he was apparently supposed to remain on board as chairman emeritus of the company’s board for five years following his departure. However, he reportedly stepped down late in 2002.
• Because he allowed his name to remain on documents distributed by the company, the bankruptcy trustee has argued, Fair was responsible in part for the actions its new owners took.
• The charges against Fair are civil (not criminal), and request that he pay the court $150 million for his failure to act to prevent the fraudulent activity.

Sources report that Fair’s lawyer has called the charges against Fair absurd, claiming that he had no knowledge of how the business was being run after his departure. Despite this claim, it seems that Fair is in the process of negotiating with the trustee on a settlement figure.

Before leaving Fair Finance Co. in 2002, Fair worked there for 56 years, establishing the outfit as a dependable source of consumer loans. This long-standing reputation apparently kept victims of the scam from suspecting anything illegal for several years.

A recent article on Forbes.com lashes out against the state of student lending and student debt in the United States. The author makes several salient points regarding the problems surrounding student debt, which cripples many graduates largely because it is very difficult to discharge in bankruptcy.

But what makes a loan “predatory?” The nation conspicuously lacks a legal or official definition for “predatory lending,” but the Forbes article cites many attributes of student loans that suggest they might fall into this category. These include:

• Student loans do not come with “free-market consumer protections.” Student loans cannot easily be discharged in bankruptcy (compared to other unsecured loans); borrowers do not have the option to restructure their student loans; and these loans come with no real statute of limitations in most cases. Lacking these protections, borrowers are more or less bound for life to repay any money they borrow for their education.
• The organizations that are meant to oversee student lenders (called “guarantors”) make roughly 60 percent of their revenue from fees and penalties associated with loans that have gone into default. In other words, the groups intended to protect borrowers from lender abuse actually have a financial interest in borrowers not being able to repay their loans as outlined in their loan terms.
• Student lenders have broader debt collection rights than other types of lenders. This means that they have a better chance of collecting some or all of the money owed to them (including money owed as part of penalties and fees).

Comparing Other Types of Predatory Loans to Student Loans

To refresh your memory about problematic predatory lending that has made headlines in recent months and years in the U.S., here’s a quick outline of how two different types of predatory loans were outed and then blasted by pretty much every consumer advocate in the country.

• Subprime mortgages: These fueled the housing bubble (and bust), and essentially amounted to lending money to people who had no real chance of repaying it. One of the hallmarks of many subprime mortgages issued was that those in the lending, loan servicing, and investment fields had financial incentives for the loans to fail. In other words, these people stood to make money when borrowers defaulted on their loans, because of late fees and other penalties (sound familiar?).
• Payday loans: The target of several pieces of legislation in recent years, payday loans are profitable to the lenders exactly because borrowers are not expected to be able to repay them as originally agreed. Payday loans become most lucrative when borrowers must pay late fees and penalties—meaning, of course, that they were designed to extend money to those who did not have a good chance of repaying it.

Congress has made some noise about reforming the student loan industry, but as of now, no real, meaningful changes have been implemented.

The Federal Trade Commission filed a complaint with U.S. District Court alleging that Christopher Mallett has engaged in deceptive practices online, targeting debt-ridden consumers. The complaint outlines Mallett’s alleged misdeeds, which include violations of the Federal Trade Commission Act.

According to the FTC, Mallett:

• Impersonated federal consumer protection agencies on multiple websites.
• Falsely claimed that he and his websites were affiliated with federal consumer protection agencies.
• Invented a consumer protection agency that does not actually exist (the Department of Consumer Services Protection Commission).

The FTC claims that Mallett attempted to attract debt-ridden consumers to his site and redirect them to affiliate sites that provided relief for mortgages, debts, and taxes. None of these sites had any actual affiliation with the federal government, and all reportedly charged customers for their services.

If proven, these actions would violate the Telemarketing Sales Rule and the Mortgage Assistance Relief Services Rule, which outline how online services and mortgage assistance can be advertised and sold.

Plagiarism of FTC Words & Symbols

In addition to Mallett’s alleged fraudulent affiliation claims, the FTC charges that he improperly used the FTC’s official seal and closely copied language from the FTC’s web site on his own web pages. Mallett’s companies and web sites reportedly include:

• U.S. Debt Care
• World Law Debt
• U.S. Mortgage Relief Counsel
• gov-usdebtreform.net
• worldlawdebt.org
• FHA-homeloan.info

Because of the close matches between official government logos and language and that on Mallett’s sites, he may also face charges of impersonating government agencies.

Unsubstantiated Debt Settlement Claims

In addition to his false claims of government affiliation, Mallett reportedly made unsubstantiated claims about how his services could benefit consumers. The FTC notes that Mallett promised substantial reduction in consumer debts, even going so far as to publish charts showing previous customers’ “success” in lowering their debts.

Mortgage & Debt Relief Scams

The FTC is bringing the complaint as part of its efforts to eliminate scams that prey on consumers who are struggling with mortgage-related debt and other types of consumer debt. These types of scams can be particularly malicious because unsuspecting consumers may spend money they can barely afford for what they believe is a service that will help them turn their finances around.

When they learn that the service was nothing more than a scam, they often suffer a double blow of having lost money and having lost a chance at getting significant help toward improving their financial situation.

In some cases, consumers turn to such services to avoid filing for bankruptcy; ironically, spending money on such scams may push these consumers over the edge financially, leaving them with few choices besides personal bankruptcy.

The Federal Trade commission reported this week that it has halted a payday lender from attempting to garnish consumers’ wages without the necessary court order. The company, Payday Financial, LLC, reportedly did business under the names Big Sky Cash and Lakota Cash.

Sources note that, in order to garnish its customers’ wages, Payday Financial divulged information about alleged payday loan debts to their employers, which is illegal. The attempt to garnish wages also prevented customers from disputing the debts in court or working out a payment plan with the lender.

Wage Garnishment Rules

Federal law permits government entities to request wage garnishment for unpaid debts owed to the government; however, the law requires that private creditors (i.e. anyone other than the government) go through the court system if they want to pursue wage garnishment.

According to the FTC, Payday Financial sent customers’ employers paperwork designed to look like documents from the federal government requesting wage garnishment to repay debts. That move has led the FTC to charge Payday Financial with:

• Misrepresenting their legal wage garnishment status to employers (in other words, lying about their legal ability to garnish the employees’ wages);
• Lying about their communication with consumers (specifically, by indicating that they had already given the employees an opportunity to contest or pay the debt);
• Illegally revealing the existence and amount of alleged debts without consumers’ consent or knowledge;
• Violating the FTC’s Credit Practices Rule, which does not permit lenders to require that consumers consent to wage garnishment in the event of default; and
• Violating the Electronic Funds Transfer Act, which prohibits payday lenders from requiring borrowers to authorize direct debit payment of loans.

Payday Financial has agreed to stop garnishing its customers’ wages until a court decides on the case.

Halting Wage Garnishment through Bankruptcy

Consumers who are dealing with legal wage garnishment have the option of filing for bankruptcy to prevent further withdrawal of funds from their wages. Personal bankruptcy includes a legal protection called the automatic stay, which prevents collection actions of all kinds for the duration of the bankruptcy case.

The automatic stay can halt:

• Wage garnishment;
• Debt lawsuits;
• Foreclosure;
• Repossession; and
• Phone calls and mailings from creditors.

In bankruptcy, filers may have debts discharged or enter a repayment plan to catch up on past-due debts. Once a debt has been discharged or repaid in part through the bankruptcy court, creditors no longer have a legal right to collect on it (meaning they can no longer legally garnish wages to cover that debt).

The Federal Trade Commission has scored another win for consumers. Last week, it convinced a federal court to rule that payday lending company Swish Marketing must pay $4.8 million as a penalty for tricking consumers into buying expensive debit cards they didn’t want.

The case highlights abuses that consumer advocates continue to fight against, including deceptive online advertising and negative-option marketing. Here’s a look at the case and what the FTC’s action might mean.

• Online payday lending: The company’s web site reportedly claimed that it matched online consumers with payday lenders to meet their needs.
• Hidden products attached: When consumers completed the online loan application, they were apparently directed to a screen that included four additional offers. Of these, three offers had a “no” box checked and one had the “yes” box checked. In some cases the additional offers were presented as a “bonus.”
• Automatic charges: Customers who didn’t notice the “yes” box or who didn’t read the fine print ended up with a debit card that automatically connected to their bank account and charged them $54.95.

Expensive Products, Debt-Ridden Buyers

In addition to being illegal, deceptive marketing practices like the ones Swish Marketing engaged in tend to prey on those who can least afford them. In many Chapter 7 cases, for example, some of the unsecured debt that filers discharge comes from payday loans.

Payday loans are short-term, high-interest loans that often lead to serious debt for those unable to make ends meet. They provide an immediate source of cash but come with a high price tag in the long run.

Penalties for the Payday Lender

Thanks to the FTC’s action, Swish Marketing and its owners are now prohibited from:

• Misrepresenting relevant facts about a product or service. Its improper sale of debit cards failed to explain how customers would be charged and how much the product would cost.
• Improperly identifying a product as a “bonus.” The previous offer didn’t provide sufficient information about the “bonus” debit card, which left consumers unable to make an informed decision about whether or not they wanted such a “bonus.”
• Charging consumers without disclosing privacy plans. Related charges against the company addressed the fact that it reportedly sold or shared customer information without warning that it would do so.
• Failing to make sure affiliates follow the rules. From now on, Swish will be held responsible for the actions of any company it works in tandem with.

The FTC did not report how the $4.8 million will be distributed. In many similar cases, funds are used to refund money consumers lost as part of the scam.