401K Loan Default

[bpowell]

Deductions were made from my paycheck 2xmonth to repay a 401K Loan, however, my employer did not send the payments to Fidelity regularly and my loan went into default. I only found out about this because I called Fidelity today and to top it all off my employment was terminated today as well. I notified my employer and have not heard back. What is my recourse?

[ESOP Guy]

I would start with talking with your former employer and see what they think happened.

It is their duty to get it right and get it fixed.  So take some pay stubs to them and ask if loan payments were taken from my check why is Fidelity saying my loan wasn't paid? 

 

Make sure Fidelity isn't saying your loan in now in or heading to default because of your termination and something in the loan agreement says upon termination the loan become 100% due.  Most plans give you some time to repay if you have the cash but that is a possibility. 

 

If they don't give a good answer come back and the professionals here can help you come up with good next steps. 

[bpowell]

Thank you!

 

[MoJo]

If your loan payments were deducted from you pay, those amounts became "plan assets" and if you employer did not forward them to Fidelity - then your employer has a big problem.  Talk to them and make sure you have all the facts FIRST.  Then, if they messed up, demand they fix it.  As a last resort, call the DOL and they can intervene (but - as a last resort - make sure of the facts first).

[Powderhound]

My situation is similar but a bit more involved...the fact pattern is below best I can remember.

1. Took out a loan 2010 time frame

2. A few years later (April 4th 2013) I was notified my account was defaulted. I was shocked to hear that. My pay stubs indicated I was making payments toward my loan via payroll deduction. I had not received any indications payments were being made untimely. 

3. I asked how did this happen, the answer was " because we pay on the 1st & 15th, the plan required us to pay every 2 weeks"  

4. I asked "How can we make this right?" The answer I recieved was " There is nothing that can be done" WOW!! not good. My next question was " What are my options? The answer was "nothing"

6. I chose to "cash out" of my account via hardship w/draw and pay the penalties and taxes. I did not feel comfortable leaving any money entrusted to our companies trustee. I got 2 W-9's as expected for $16,500 and $3,600. I believe 1 had an L1 and the other simply a 1 ID label.

8. I put this train wreck behind me and continued my employment but refused to participate in any company sponsored plan. I did not question the company owner or office manager any further. 

9. Last year I found out the previous plan sponsor (AXA Equitable) was no longer the plan sponsor and a new company (Paychex) would be our company sponsor. Again, I chose not to participate. I signed nothing and simply excused myself from the sales pitch. 

10. Currently we are doing our personal taxes and was asked by our tax preparer how things had worked out. I explained the story and she suggested I look into the matter for any loose ends.

11. I called AXA for a account summary. They informed me I had $739 transferred into my "new account" with Paychex and they will have all the paperwork I requested . I knew nothing about having any money "laying around"

12. I asked a few questions of our office manager (the same one) "How do I access my account information and from whom?" She gave me the account login info I needed for Paychex. I also asked when my money was transfered her reply was "April of this year" After logging in I discovered my money had been transferred in Aug 2016. It has been sitting in a Vanguard Conservative Fund to this day. I asked who decided to place the money into that fund, her response was " I guess they did"

In summary, I am trying to access my account history for tax purposes. AXA was a dead end, the owner of the company told me he would "get someone in here that could clear things up" My office manager explained she would pull my AXA paperwork but found nothing. She then offered the contact info for the 401K Generation rep. I called him yesterday and asked for any signed documentation or paperwork he responded saying "he has nothing" I have yet to contact Paychex but will later today or tomorrow. My main concern moving forward is any tax liabilities I may or may not have. I would hate to get called out by the IRS.

In closing, I simply would like an apology and or any money due me if any errors were made by someone other than me.  Thank you for hearing my story and any input, comments or suggestions offered. Cheers

 

[Kevin C]

Powderhound, It would be better if you start a separate thread for your questions.

Your 2010 loan was fixable in 2013.  Unfortunately, it is most likely not fixable now.  The IRS has a correction program that allows employers to correct loan problems, but only if you are not beyond the maximum allowable payment period for the loan. In most cases, that is 5 years from the date of the loan.

Hardship distributions from your salary deferral account are limited to the actual amount you contributed, less any prior withdrawals.  Earnings on the deferral account can not be distributed due to hardship.  That probably accounts for the funds remaining in the plan, but you could have also had some employer contributions allocated after your hardship distribution was paid.

When the plan changed service providers from AXA to Paychex, they could have required all participants to make new investment elections.  Any participant who did not make an election would have been defaulted into the Qualified Default Investment Alternative (QDIA) under Department of Labor rules.  If that is what happened, they should have given you a QDIA notice before the change.  However, if they mapped funds during the change and you were not in a similar investment prior to the change, somebody has some explaining to do.  

If you paid taxes on the amounts reported on your 1099-Rs for the hardship distribution and defaulted loan, you should not have any problems with the IRS. If you didn't, they will show up eventually.

[Powderhound]

I will start a seperate thread.

- No, I did not receive a QDIA or any paperwork during the service providers transition. I did not hear from anybody since I took the lump sum distribution nor would I had I not called AXA the other day. The only notification I received was "were changing 401K companies. He will be here to explain the new plan next week" At which time I chose not to participate, but signed nothing and simply excused myself from the meeting. I cannot say whether they mapped the funds during the change or not or even what funds my previous allocation were assigned. Like I said, I left that train wreck and had no plans to ever look back.

- Yes, I did pay the taxes.

I suppose my next move is to specifically request from my employer the hardship and loan documentation to get a better picture of what the hell exactly happened and why I was not notified of my "fix" options. If they cannot produce the proper documentation I will reach out to Paychex.

Thank You Kevin for your input

[Bird]

17 hours ago, Powderhound said:

I suppose my next move is to specifically request from my employer the hardship and loan documentation to get a better picture of what the hell exactly happened and why I was not notified of my "fix" options. If they cannot produce the proper documentation I will reach out to Paychex.

You might save some time by just poking yourself in the eye with a sharp stick.  If your employer used AXA, and then Paychex, then they had little or no "hands on" interaction with plan activities and will have little or no clue about what happened.  I can only chuckle at the thought of getting useful info from Paychex.  Kevin is right about the funds remaining; little doubt that it represents earnings that couldn't come out when you took the "hardship" (somehow I doubt that was legit).  I don't blame you for being frustrated with the way things were handled but by choosing to pull your money out and then not attending the meeting or filling out forms; they had no choice but to put you in a default fund.

[Powderhound]

I saw the scheduled payments being deducted from my paycheck. I was paying back the loan every payday. Nothing on the AXA website indicated a problem which I frequented often during the economic downturn. Nothing on any statements I viewed indicated a problem. It seems either my company's plan admin also responsible for payroll or AXA would have caught something wrong during an audit. How was I to know the loan was defaulting 1 day at a time on the months that had 31 days over a period of several years and why did 2 other employee loans at the same time not go bad?

Maybe she chose to keep hush about the $700ish in hopes I would not discover it and then distribute it at her discretion "somewhere" back into the plan when I was no longer around. I work for a mom n pop company, her skill set when taking on fiduciary responsibility for this plan, was zero. Just a bit of polish on a Georgia country girl with a splash of seniority to be office manager, payroll & HR. Not knowing the legal lingo about this topic or what is relevant makes it difficult to fully explain the situation. 

[Powderhound]

I just spoke with her...she has no records from the AXA era in my personal file. She claims any relevant documentation was done online or via email. She only transferred to Paychek my current balance info. She implied any relevant documentation from the AXA era prior to the transfer date is gone, and with a smirk she ended the conversation.

[Powderhound]

I know some question why I chose to bring this matter up so late in the game here why..... I get paid damn well for my efforts as a service manager working for this company and chose to "ignore" this issue for fear of backlash. Like her, I am a fellow manager and have to work with her on a daily basis. Exposing a possible breach of fiduciary responsibility would have spelled disaster for someone, possibly me. I was not going to jeopardize my job for 18K. Boss man would of had a difficult decision to make if we did not get along. Moving forward to current time...word on the street is boss man is selling out to the big corporate boys. I will not work for them. As a result I want to tighten up any "loose" ends prior to the big boys moving in and taking over my office and responsibilities.  

[Bird]

I understand where you are coming from and am not being critical.  The bad news about AXA and bigger companies like that is that everything, and I mean everything, is system-driven and there is sub-par customer service.  The good news is that everything is system-driven and if a distribution was made, it was undoubtedly reported to the IRS (you indicated above you received 2 W-9s [sic] - they are 1099-Rs) so you would have paid taxes for that year and don't have to worry about it coming back.

You got screwed by the fact that someone set up the loan amortization on the wrong schedule, and that there was no warning about the default.  Unfortunately, I don't see any recourse at this point; it's way way too late to unwind it in any practical way, and even at that, it's too late to correct it under correction procedures in place. 

The good news is that the remaining money in the plan is in fact yours.  Your associate may or may not be a jerk but I am confident that she was not going to try to put it somewhere else; again, with the system-driven approach, it would probably be impossible.

[TPAJake]

I'm currently repairing a suite of 27 loans on the AXA platform (it's terrible) & just finished explaining the horrors of a "too late to fix it" loan situation to a group that converted out of Paychex.  These 2 providers are right up there with Ascensus as the worst of the worst & their model clients are companies that have incompetent or negligent payroll departments.  Consider yourself lucky that you handled your taxation issues back when you did!