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Student Loan Law: 1.10.1.4 State Student Loan Ombudsman or Advocate

In recent years, many states have passed laws to strengthen the rights of student borrowers.279 As result of these laws, a number of states across the country have a designated student loan ombudsmen or advocates. These state officials are a dedicated resource committed to providing information that is critical to many student loan borrowers.

Student Loan Law: 1.2.1 Print and Digital Versions

Student Loan Law is available in both a print and digital version. Print revisions are released every few years and the digital version is updated more frequently, with all changes integrated into the text. The digital version also contains additional pleadings, practice tools, and primary source material, as described at § 1.2.4, infra.

Student Loan Law: 1.4.1.3.4 Joint consolidation loans

Prior to July 1, 2006, married borrowers could choose to consolidate loans from both spouses or jointly consolidate the loans of either spouse. Both borrowers had to agree to be jointly and severally liable for repayment. In addition, the borrowers had to agree to repay the joint loan regardless of any change in marital status. Perhaps because of the dubious advantages of this program, Congress eliminated it as of July 1, 2006.107

Student Loan Law: 1.5 Private Student Loans

Banks and other financial institutions make private student loans without any direct financial backing from the federal government. Banks may issue private loans to fund a student’s education or to refinance a borrower’s existing federal student loans into a new private loan. Private loan issues are discussed in detail in Chapter 16, infra.

Student Loan Law: 1.10.2 Additional Department of Education Resources

The Department of Education’s website is extensive and contains a great deal of useful information. The Federal Student Aid (FSA) website is the main source of information and resources for student loan borrowers. It can be found at https://studentaid.gov. Borrowers may access information about default and collection relief at https://myeddebt.ed.gov.280 Borrowers can also call the FSA Information Center at 1-800-4-FED-AID (1-800-433-3243) or 1-800-730-8913 (TDD).

Student Loan Law: 1.4.2.2.2 Pell Grant overpayments

Grants do not usually have to be repaid unless there is an overpayment. A school must cancel or reduce as appropriate the amount of a Pell Grant award if the borrower is approaching their lifetime eligibility limit.151 The school is liable for an overpayment if it occurred because the school failed to follow proper procedures.152 If the school is not liable, they must notify students of the overpayment and request repayment.

Student Loan Law: 1.4.1.4 Perkins Loans

The Perkins Loan Program (formerly called National Direct Student Loans and, before that, National Defense Student Loans) provided low-interest loans (Perkins Loans) to both undergraduate and graduate students with exceptional financial need.122 Perkins Loans were originated and are serviced by participating schools and repaid to the school. The government did not insure these loans but instead provided initial contributions to eligible institutions to partially capitalize a loan fund.

Student Loan Law: 1.7 Determining the Type of Loan

The most efficient way to find out about a client’s federal student loans is by accessing the borrower’s information through the National Student Loan Data System (NSLDS). The NSLDS is the Department of Education’s central database for federal student aid. It receives data from schools, agencies that guarantee loans, the Direct Loan Program, the Pell Grant Program, and other Department programs.

Student Loan Law: 1.4.1.2 Parent PLUS and Grad PLUS Loans

Today, PLUS loans are only available through the Direct Loan Program.71 Prior to July 1, 2010, PLUS Loans could also be issued as FFEL Program loans. There are PLUS loans for both parents (parent PLUS loans) and graduate/professional students (graduate/professional PLUS loans). A graduate or professional student’s maximum annual Direct Unsubsidized Loan eligibility must be determined before the student applies for a PLUS loan.72

Student Loan Law: 1.10.3 NCLC’s Student Loan Borrower Assistance Project

In 2007, NCLC established a Student Loan Borrower Assistance Project (SLBA). SLBA is focused on providing public information about student loan rights and responsibilities for borrowers and advocates. SLBA also seeks to increase public understanding of student lending issues and to identify policy solutions to promote access to education, lessen student debt burdens, and make loan repayment more manageable.

Student Loan Law: 1.4.2.3 TEACH and Other Grants

The TEACH Grant Program provides up to $4000 annually to students who are enrolled in an eligible program and who agree to teach full-time in a high-need field at a public or private elementary or secondary school that serves low-income students. The TEACH Grants were impacted by the Budget Control Act of 2011, which means that borrowers’ maximum award is reduced for each fiscal year thereafter.

Federal Deception Law: 6.3.4.4 The Meaning of “Sequential”

Another key word in the ATDS definition is “sequential.” The TCPA does not define the term. As discussed below, it could mean any arrangement of a set of numbers in a particular order determined by some rule, or it could be limited to numerical order or even consecutive numerical order.

Federal Deception Law: 6.3.4.5.2 Smartphone issues and the “capacity” argument

The first of the theories discussed in the preceding sections is that a dialer is an ATDS if it has the capacity—even if unused—to generate random or sequential telephone numbers, and to dial those numbers.262 Smartphones probably have the ability to generate random or sequential numbers because this is a built-in functionality of database software that smartphones are likely to use.

Federal Deception Law: 6.3.4.5.3 Smartphone issues and the “footnote 7” argument

As discussed in the preceding sections, the second theory is that a dialer is an ATDS if it generates random or sequential numbers that are not telephone numbers themselves, but that are used to store or produce telephone numbers to be dialed.264 This argument is based on the plain language of the statute and the Supreme Court’s reasoning in footnote 7 of Facebook,265 and does not require a broad interpretation of the term “capacity” in the ATDS definiti

Federal Deception Law: 6.3.4.5.4 Smartphone issues and the “sequential” argument

The third theory is that the term “sequential” in the ATDS definition should be interpreted to include sequences other than numerical order.273 With this understanding of the term, a dialer that uses an algorithm to select telephone numbers from an existing list, and then dials those numbers, is an ATDS. The defendant is unlikely to be able to present a credible claim that smartphones are able to perform this function without the installation of additional software.

Federal Deception Law: 6.3.4.6 Evading the ATDS Definition by Dividing a Dialer’s Functions Among Multiple Devices

An evasion that callers have attempted involves dividing the autodialing function among multiple pieces of equipment. Since the TCPA’s definition of ATDS refers to “equipment”—not a “device”—a system is an ATDS even if one device must work in tandem with another to place calls.274 Moreover, callers cannot evade the definition by dividing ownership of pieces of dialing equipment that work in concert among multiple entities.275

Federal Deception Law: 2.2.4.2 FTC Rule Violation As a State UDAP Violation

Even though the FTC Act itself does not provide a private right of action, an FTC TRR defining unfair or deceptive practices provides guidance in interpreting unfair or deceptive state UDAP statutes—and state UDAP statutes provide strong private remedies. Therefore, violations of an FTC TRR should be privately actionable under state UDAP statutes.

Federal Deception Law: 2.5.3 Interrelation of FTC Cooling-Off Rule and State Law with Truth in Lending Rescission

Another source of consumer cancellation rights is the rescission notice required by the Truth in Lending Act when a creditor takes a non-purchase-money security interest in the debtor’s home.313 The FTC Cooling-Off Rule explicitly states that it does not apply in situations in which the TILA rescission notice is required.314 In fact, mistakenly disclosing a right to cancel under the Cooling-Off Rule or state law may violate the Truth in Lending Act by obscuring or contradicting the notice of the

Federal Deception Law: 2.5.4.2 Effect of Prior Negotiations, Seller Being Invited to the Home

The FTC Cooling-Off Rule applies when the seller visits the buyer’s home in response to an invitation by the buyer.329 However, if a sale is made in the consumer’s home following prior negotiations at the seller’s place of business, the rule does not apply.330 The theory is that, “while such sales are actually consummated in the home, the attributes of the typical door-to-door sale are not present—the consumer has not been duped or otherwise deceived as to the nature of the sales call.”