Re: Student Loan and wage garnishment

You are correct that pursuant to the Higher Education Technical Amendments Act of 1991 (HETA), Congress removed the statute of limitations on an interim basis and later eliminated the statute of limitations altogether as codified in 20 U.S.C. 1091(a).

Congress further strengthened the recovery provisions of HETA by making the amendments effective as if enacted by COBRA of 1985. As a necessary consequence of this express retroactivity clause, actions that had become time-barred after the enactment of COBRA were revived. Therefore, regardless of when a student loan default had occurred, the loans again became subject to collection efforts.

Debtors-confronted with the retroactivity clause of 1091 (a) and a delay by the government in initiating the recovery of their defaulted loans-have attempted several indirect novel theories in an attempt to escape collection efforts. Debtors have alleged that the retroactivity clause violates the Fourteenth Amendment's guarantee of due process and equal protection. This argument has been rejected because it is within the power of Congress to enact such revivals because the repeal of a statute of limitations on personal debts does not deprive a debtor of property in violation of due process.

The U.S. Supreme Court first held that the constitutional prohibition against ex post facto laws applied only to criminal laws in the landmark opinion of Calder v. Bull (1798). The issue in the case, which arose from the Supreme Court of Connecticut, was whether the act of the Connecticut legislature to set aside a decree of a probate court (which had the effect of divesting the appellants of certain property) was an ex post facto law.

Your attorney can explain further.