Are student loans dischargeable debt? How do you file a Complaint to Determine Dischargeability of a Debt to wipe out student loans?
I have a patient who was recently injured from a 3 story fall and has been put on disability. He is no longer able to work the same job due to the physical demand. While he has saved a little money to the side he has a large student debt that is financially burdensome and he wants to know if student loans are dischargeable debt.
If the person is not in bankruptcy, he needs to contact the U.S. Department of Education for information on its dischargeability programs (not for private student loans). In bankruptcy court, he needs to be able to prove a strict hardship. The requirements are from the Brunner test out of the 2nd Circuit. A Google search will find it.
This area is difficult for attorneys to prove. See the student loan debt posts on my blog for more information.
Mr. Goldstein is a Virginia-licensed attorney only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation. Contacting Mitchell Goldstein or the Goldstein Law Group does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised.
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To file a complaint to determine dischargeability he must first file a bankruptcy case to get under the court's authority. Then he must file an "adversary proceeding" in bankruptcy court to wipe out the student loans.
I recently had a Chapter 13 client who received her Social Security disability benefits (at 39 years old) and we are going to use Social Security's findings and her doctor to testify if necessary in court. Since Social Security is thankfully very stingy with disability awards I'm sure she will have her student loan debt discharged.
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Divorce / Separation Lawyer
Student loans cannot be eliminated in bankruptcy court by a complaint to determine dischargeability. To attempt a student loan discharge in bankruptcy one must first be in bankruptcy and then file an adversary proceeding.
Bankruptcy courts very rarely grant hardship discharges. An example of how they get denied even in extreme cases:
• In re Miller Bankr.E.D.Pennsylvania - 409 B.R. 299 - 2009-07-22 - Debtor failed to meet hardship standard; student loan debt not discharged even though Debtors only income was $846 month in social security
But sometimes one does get granted, so he needs to see a lawyer. Here's an example:
•In re Larson Bankr. N.D.Ill. - 426 BR 782 - 2010-03-25 - Debtor met hardship standard; student loan debt was discharged - Middle aged debtor incurred student loan debt between 1991 and 1993. By 1993, he was going blind, and was completely blind by 1998. By 2004, after major health issues (heart attack and failed kidneys), and inability to work more than 28 hours per week (on doctor's orders), debtor filed for relief, and the court permitted a hardship discharge to discharge their student loan debt.
Note that the person in this case may qualify for some programs outside bankruptcy. For example, there is an income contingent repayment plan for federal student loans is now available. Under the new plan, borrowers can repay their student loans based on their income and the balance will be forgiven after 25 years. In a case like this payments might be small.
In any event, the person in this case needs to see counsel.
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