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How do I re-open my discharged Chapter 7 to declare student loan hardship?

San Diego, CA |

The amount is $303,000.00 and I am 75 years old. The original amount was $142,000.00.

I am on a CA teachers' retirement. I lost my home in foreclosure due to mortgage fraud forced into bankruptcy.

Attorney Answers 4


  1. Best answer

    You will need to file a Motion to Re-Open your Chapter 7 case. Once that is approved, you will need to file an Adversary Proceeding. I would suggest you get an attorney because these steps can be difficult to manage without training. Another thing to think about it whether it is necessary to go through these steps at your age. Depending on exemptions in California, a student loan company may not be able to execute or garnish your income. They definitely can't on your social security.

    You might want to talk to an attorney to review that issue with you and determine whether your teacher's retirement is safe. In most states, I believe it is, but you want to make sure. Good luck!

    This should not be considered legal advice, but rather simple information. You should consult a lawyer to review your unique situation. No client-lawyer relationship exists until you sign something indicating there is.


  2. Student loans are generally non-dischargeable in bankruptcy but there is a narrow exception. In order to have the student loans discharged you need to show that failing to discharge the loans will create an undue hardship. Proving an undue hardship requires that you file a lawsuit against the lender (usually the Dept. of Education) where you seek a court order discharging the student loans. Proving undue hardship requires that you show:

    1. You are unable to maintain a reasonable standard of living at this time
    2. Things are not likely to change
    3. You have made at least some of the payments in the past

    As a procedural matter, most courts want you to reopen your case before filing a lawsuit seeking to discharge a student loan. Reopening is done by motion and there is no fee to reopen. There is no time limit for seeking a determination of discharge of student loans.

    Another option to consider is an Income Contingent Repayment Plan through the Dept. of Education. This may allow you to stop paying indefinitely and is easier to qualify for then a bankruptcy discharge.

    Law Office of Michael J. Primus We are a debt relief agency and help people file for bankruptcy under the bankruptcy laws. We have offices in California only.


  3. Student loan debts are not dischargeable in bankruptcy.

    Mr. Pascale is licensed to practice law in the State of New York. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and time-lines that, if known, could significantly change the reply and make it unsuitable. Mr. Pascale strongly advises the questioner to confer with an attorney in their state in order to insure proper advice is received.


  4. I disagree with other counsel that social security benefits can't be garnished. Although this is true for most debt and also "private" student loans the law carves out an exception for federal student loans.

    In my opinion, the "undue hardship", criteria is a hardship. Most borrowers don't even attempt the adversarial process because of the difficulty in obtaining a discharge and the costs involved. But, given your age I think it's most important to try and so as not to diminish your chances of success hire a bankruptcy attorney who has previously handled a student loan adversarial case. While there are many local bankruptcy attorneys, many if not majority of them don't handle student loan adversarial cases. Tell them up front on first contact that you are seeking someone with student loan adversarial experience.

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