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How do you file a Complaint to Determine Dischargeability of a Debt to wipe out student loans?

Norcross, GA |

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.

Attorney Answers 3


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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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.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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