Debt threat after death

It has been sleepless nights for senior citizen Cynthia Brivit since a law firm sent a letter to her this month indicating that legal action is to be taken against her to have her house in Greater Portmore, St Catherine sold in order to recover a $1.1-million debt to the Students’ Loan Bureau (SLB).

Brivit and two other persons had signed as guarantors around 2006 for a loan of $100,000 for a student who was accepted at the St Josephs Teachers’ College in Kingston.

However, some legal experts are of the opinion that any legal action taken against Brivit at this time could be statute-barred under the Limitation of Actions Act because six years have elapsed since the agreement or from the date on which the cause of action accrued.

The student, Maradelle Lois Martin, graduated from college but died eight years ago. Brivit said, shortly after the borrower’s death, she and the deceased’s husband took the death certificate in 2016 to the SLB and an officer advised her that she would get an early response.

Brivit said she was aware that the deceased’s husband had paid $150,000 to the SLB in relation to the loan. The money, she said, came from an insurance policy which the deceased had and which was to be used for funeral expenses.

‘Shock and surprise’

After the death certificate was submitted, Brivit said that, to her “shock and surprise”, the next response she received from the SLB was a letter on November 16, 2020 from a law firm, demanding payment of $883,000 by November 27, 2020.

“ Failure to pay the sum herein demanded will leave us no alternative but to proceed to file suit against you and your guarantors,” the letter stated.

“I firmly believed that since the borrower died, I would no longer have responsibility for the loan,” the bewildered senior citizen said.

Brivit disclosed that prior to that letter she had received a letter in 2015 from a lawyer informing her that a debt collection agency was assigned to recover the student loan owing but she said she was never contacted by the agency.

“I was taken aback when I received the letter this month from a law firm stating that I owe the SLB $1.1 million for the $100,000 that three of us as guarantors had signed for the student. Now I am informed in the letter that ‘our instructions are now to take active steps to sell your property’ which means I am going to be homeless,” said Brivit, who is unemployed. She says she now has difficulty sleeping at nights and has not been able to concentrate since she got the letter.

“Even in church, on Sabbath, I was crying and asking God to ease my pain and suffering in relation to the good deed I did for the deceased,” Brivit said. She outlined that she had no one to help her because her only child died in 2009 and that was before Martin graduated from college.

The letter received by Brivit earlier this month, but dated May 31, states that a lawsuit will be filed in court seeking to secure judgment and an order for sale of her property on the open market. The letter, from law firm Richards & Richards, states that, upon the sale of her property, the balance remaining after recovery of what is owed to the SLB, will be held until she provides and account to which it should be transferred.

Brivit outlined that she had used money she had in her bank account as collateral for the loan. She said she did not know the other guarantors so she was not aware if they had received demand letters from the lawyers for SLB. She said she has written to Minister of Finance and the Public Service Dr Nigel Clarke asking for his intervention in the matter.

Statute-barred

Attorney-at-law Hugh Wildman, asked to comment on the issue, said Brivit could raise a defence that any action taken against her is statute-barred.

He said that, under the Limitation of Actions Act, clearly six years would have long gone since the cause of action which was from the time she entered into the agreement. He noted that the matter is further compounded given her claim that she went to the SLB with the death certificate and that she was promised she would get an early response.

Attorney-at-law Able-Don Foote also explained that legal action against Brivit might be statute-barred under the Limitation of Actions Act. However, under the common law, if the person acknowledges the debt after the time has elapsed under the Act, then that would allow for the cause of action to run afresh.

Foote said that was the outcome in previous decided cases dealing with FINSAC debts.

In Jamaica, actions such as claims for breach of contract, personal injury and wrongful death must be filed before the expiration of six years or they will be statute-barred as they will no longer be legally enforceable under the Limitation of Actions Act.

As of April 1 this year, students entering tertiary institutions are no longer required to have guarantors.

editorial@gleanerjm.com