I have previously written about dischargeability of student loans in bankruptcy. For most people filing bankruptcy does not result in a discharge of a student loan under the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) amendments. The code, as amended, does not provide for the discharge of a student loan in a bankruptcy. In order for the student loan to be discharged, the debtor must brings a lawsuit, known as adversarial proceeding, and ask bankruptcy judge to make a determination that the continued existence of the student loan will create an “undue hardship” on the debtor. Under the applicable prior decisions, “undue hardship” is the most difficult part, that is the debtor must convince the bankruptcy court judge that in this case under the circumstances applicable to this debtor, the debtor will not be able to make any significant payments on the student loans owed. The high burden of proof makes these lawsuits extremely difficult.
However, under appropriate circumstances, it may be possible to determine what position the Department of Education may take on student loan dischargeability. The Department of Education recently issued a guidance letter on whether a student loan dischargeability lawsuit will be litigated or whether the Department of Education will recommend agreeing to the discharge.
The Department of Education seems to be focusing on a number of factors such as debtor’s efforts in trying to repay the loans, physical or mental disability leading to inability to work, likelihood of significant future income and factors beyond debtor’s control that led to the filing of bankruptcy.
Private student loan lenders have no such policy and it will be up to the individual creditor/lender to determine if their attorney will defend such a lawsuit vigorously or agree to settlement before a trial or go to trial.
It is never easy to obtain discharge of student loans in bankruptcy and all potential alternatives should be explored. Another option may be Income-Based Repayment (“IBR”). This program was designed to make sure that graduates who aren’t earning a significant income after graduation aren’t spending all their income on repaying their student loans and may result in a significant payment reduction and potential loan cancellation.
If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a Rochester, NY, bankruptcy lawyer.