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Debt Before Marriage

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ajinaz

Member
What is the name of your state (only U.S. law)? AZ

I apologize in advance for the length of this post but I want to be as clear as possible.

Thank you for any guidance.

My daughter and her spouse were served papers in Maricopa County Superior Court Arizona.

They are being sued by a collection agency that bought the spouses student loan.

From researching on the internet, the papers were taken out by an LLC that specializes in taking on student loans at non-accreditted trade schools and then filing suit.

The student loan was taken out before they knew each other and went into default several months before they were married. The amount of the suit is roughly 14,000.

They really cannot afford an attorney which leads me here.

They do own a home with very little equity. My daughter is the only one on the mortgage.

The papers indicate that they must respond within 20 days or a judgement will be rendered.

My questions:

Can my daughter be held responsible for this debt?

Can they garnish her wages?

Does she have to respond to this or will the court assume she owes the debt? It appears that to respond she will have to pay $239 to file a response. Is there any way around filing a response and still showing the court they were not married when this loan was taken?

Spouse does not deny the debt but is not able to pay the debt at this time.

I am strictly concerned with my daughter in this matter. Her spouse is unemployed and will probably not work for many years as he is a stay at home dad. My daughter makes pretty good money but is saddled with substantial federal student loans.

Any advice or insight into what could happen or how she should proceed would be greatly appreciated.
 


HRZ

Senior Member
Perhaps I'm missing something...she is not responsible for his debts acquired prior to marriage .

But if he holds an interest in anything the lender can chase that ...

How does she get sued for his separate debt ? But it clearly makes sense to file an appropriate timely response that this is not my debt .
 

adjusterjack

Senior Member
Reading between the lines I conclude that both your daughter and her spouse are named as Defendants.

Yes, she and her husband do have to file an answer and respond PROPERLY to the lawsuit or there will be a default judgment against both of them which will allow the judgment creditor to garnish her wages and go after her bank accounts.

The court does have a fee waiver or deferral process:

http://www.superiorcourt.maricopa.gov/SuperiorCourt/LawLibraryResourceCenter/Forms/DeferralOfCourtFees/defer_gnf.asp

But you wrote that she makes good money, so it's anybody's guess whether she will qualify.

Bottom line: No, there is no way around having to file an answer and defend against the lawsuit in the proper manner.

She can go online and google something like how to respond to a debt lawsuit and see if there are any guides.

She can also see if there are local legal aid services that can provide assistance or guidance.

The best idea, however, is for her to hire a lawyer who can make short work of getting her out from under the lawsuit.
 
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latigo

Senior Member
What is the name of your state (only U.S. law)? AZ

I apologize in advance for the length of this post but I want to be as clear as possible.

Thank you for any guidance.

My daughter and her spouse were served papers in Maricopa County Superior Court Arizona.

They are being sued by a collection agency that bought the spouses student loan.

From researching on the internet, the papers were taken out by an LLC that specializes in taking on student loans at non-accreditted trade schools and then filing suit.

The student loan was taken out before they knew each other and went into default several months before they were married. The amount of the suit is roughly 14,000.

They really cannot afford an attorney which leads me here.

They do own a home with very little equity. My daughter is the only one on the mortgage. (?) *

The papers indicate that they must respond within 20 days or a judgment will be rendered.

My questions:

Can my daughter be held responsible for this debt?

Can they garnish her wages?

Does she have to respond to this or will the court assume she owes the debt? It appears that to respond she will have to pay $239 to file a response. Is there any way around filing a response and still showing the court they were not married when this loan was taken?

Spouse does not deny the debt but is not able to pay the debt at this time.

I am strictly concerned with my daughter in this matter. Her spouse is unemployed and will probably not work for many years as he is a stay at home dad. My daughter makes pretty good money but is saddled with substantial federal student loans.

Any advice or insight into what could happen or how she should proceed would be greatly appreciated.
Do you really have to be told what will happen if your daughter doesn't defend against the pending lawsuit on the grounds that she is not personally liable for her husband's pre-marital debts?

In case you are that naïve I'll tell you. She will become inexorably personally liable to the judgment creditor and every item of community property they may acquired as man and wife in Arizona will be subject to the payment of that judgment - including subjecting her income to garnishment!

HOWEVER, if she is dismissed from the lawsuit on the grounds that she is not personally liable for his pre marital debts FOR WHICH SHE IS NOT - then her husband's judgment creditor cannot touch any of their community property, including her earnings. (See: Forsythe v. Paschal 34 Ariz. 380, 271 P. 865 "a creditor of one spouse may not enforce a judgment for an individual debt against the property of the community."

The unfortunate bottom line here is the old snooze and lose routine. If you want to help her, then hire her an attorney and do it quickly.
___________________


[*] Incidentally, your are dead wrong about the status of the mortgage as there is no way that the two of them are on the title to the home and she alone is signatory to the mortgage note. The only way that could be so would require that she purchased the home and took out the mortgage before she married the deadbeat and subsequently deeded him an interest. (Most unlikely) Otherwise, the holder of the mortgage would be virtually unsecured.

Also, why doesn't she dump this stay-at-home piece of trash?
 

HRZ

Senior Member
Why taint a very very solid set of suggestions with an final off point comment...a stay at home parent is not a piece of trash , per se . ( I know of several situations where mom is by far the better wage earner and dad is the elected homemaker )

SHe needs to borrow the money and have an attorney in there to promptly respond and defend her ..like first thing Monday morning ! DO NOT Let 20 days pass unanswered !

We need not venture opinions about the husband!
 

Chyvan

Member
[*] Incidentally, your are dead wrong about the status of the mortgage as there is no way that the two of them are on the title to the home and she alone is signatory to the mortgage note. The only way that could be so would require that she purchased the home and took out the mortgage before she married the deadbeat and subsequently deeded him an interest. (Most unlikely) Otherwise, the holder of the mortgage would be virtually unsecured.
Not necessarily. It may be a bank or state thing. After my parents died and my sister and I inherited the house, I signed off on some grantor form that allowed my sister to take out a mortgage in her name using my half the house as collateral. In the event of default, I'll lose my portion of the house (no great loss), but my credit isn't going to be affected.

Mind you it wasn't a purchase mortgage, and what you're saying might apply to those, but this was a cashout refi.
 

latigo

Senior Member
Not necessarily. It may be a bank or state thing. After my parents died and my sister and I inherited the house, I signed off on some grantor form that allowed my sister to take out a mortgage in her name using my half the house as collateral. blah, blah, blah . . . . .
Yes, it is necessarily!

But isn't it magnanimous of you to share that fascinating, yet totally irrelevant personal tidbit with us?

Its just unfortunate that you are so witless as to fail to appreciate that it is ONLY because you agreed to "subordinate" to the lender that your sibling was allowed to encumber your undivided one half of the inherited land.
 

Chyvan

Member
Yes, it is necessarily!

But isn't it magnanimous of you to share that fascinating, yet totally irrelevant personal tidbit with us?

Its just unfortunate that you are so witless as to fail to appreciate that it is ONLY because you agreed to "subordinate" to the lender that your sibling was allowed to encumber your undivided one half of the inherited land.
Right, and how do you know the husband didn't subordinate also?

your are dead wrong about the status of the mortgage as there is no way that the two of them are on the title to the home and she alone is signatory to the mortgage note. The only way that could be so would require that she purchased the home and took out the mortgage before she married the deadbeat and subsequently deeded him an interest. (Most unlikely) Otherwise, the holder of the mortgage would be virtually unsecured.
You weren't at the closing so you don't know.
 
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