Include private uncertified "education loan" in Bk 7 previously filed and discharged.

Asked over 1 year ago - Las Vegas, NV

Hello,

I filled Bk7 and was discharged in 2010. I included my private uncertified "education loans" with the list of creditors. Never heard a peep from them since.
I have read you can include these after the fact at anytime if you can prove these were not "education loans" under the bankruptcy code. These loan were uncertified by my university. They were dispersed direct to me. I took them out after my last semester started and totals were above and beyond cost of attendance since I had a scholarship/ grant and aid. I am not proud of myself and I have worked hard since filing to improve my credit. I just don't want a surprise from my past popping up.

If one of these was to file a lawsuit against me could I also argue this against wage garnishment?

Thank you for your advice!

Attorney answers (6)

  1. Richard Edmund Hawkins

    Pro

    Contributor Level 16

    3

    Lawyers agree

    Answered . You are seeing incorrect advice here, that is not consistent with the current code.

    There *are* "student loans" that are dischargeable; the blanket statement that they are not dischargeable is just pain wrong.

    The code has requirements for non-dischargeability of private loans; one of the issues is whether or not there is a governmental or non-profit guarantor.

    You are *not* going to get a good answer for this on the web, even from a bankruptcy attorney. You will need to sit down with an attorney, bring your documentation, and have them reviewed. Expect to pay hourly on this; this is not a "free consultation" type of issue (free consultations relate to the hiring of an attorney; they are not for dispensing advice).

  2. J. Scott Dilbeck

    Pro

    Contributor Level 13

    1

    Lawyer agrees

    Answered . Student loans are not dischargeable whether they are properly scheduled or not. Student loans are a unique category of debt in that they receive general unsecured treatment in bankruptcy aside from the fact they are not dischargeable. You probably need to reach out to the loan company and see what kind of arrangements can be made. If you are having difficulty, you could consider a Chapter 13. You are not eligible for a discharge of course and even if you were you couldn't discharge these debts, but you could get a plan confirmed that would pay these student loans off at 0% interest. The problem is that the maximum length of a plan is 60 months, so depending on that total balance it might not be an affordable monthly payment. Good luck to you.

  3. Matthew Scott Berkus

    Contributor Level 20

    1

    Lawyer agrees

    Answered . The certified / uncertified distinction is not helpful to you in the bankruptcy context.

    The issue of whether these loans are "qualified education loans" under IRC 221(d)(1) generally gets decided by the wording of the note. How you actually used the money does not resolve the issue. And can hurt your case because if you signed a Note saying the money was for X, and you used it for Y, you don't come to the case with clean hands. Also, "qualified education expense" includes most expenses, including living expenses (20 USC 1087II)

    So, if the debt is still legally owed, which it is, and you are sued (assuming the statute of limitations has not expired), whether the debt was a student loan or not doesn't matter. You borrowed money, didn't pay it back.

    Sorry, probably not what you "want" to hear.

  4. Amanda M Roberts

    Pro

    Contributor Level 12

    Answered . There are some student loans that are dischargeable in bankruptcy. Since you received a discharge, you should determine how the loan was schedule, you may need to consult with an attorney to understand the difference. In advance of the meeting with an attorney, I suggest pulling your credit report to see if it is being reported on your credit, if it wasn't discharged it should appear on the credit report.

  5. Michael Rice

    Contributor Level 6

    Answered . I very much agree with Mr. Berkus.

    I only want to add (1) that you I think you should take the documents you have to a bankruptcy attorney to look at and (2) if you're having trouble paying them that there might be lots of options.

  6. Matthew Erik Johnson

    Contributor Level 17

    Answered . Mr. Hawkin's is the correct answer here. There are situations where a hardship discharge of student loans might be available. Its rare, and is highly dependent on age and disability - but it is possible for the right debtor.

    Matthew Johnson phone# 206.747.0313 is licensed in the State of Washington and performs bankruptcy, short sale... more

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