When can I file an adversary proceeding regarding a student loan?

Asked over 4 years ago - San Diego, CA

Is there a deadline after filing for ch. 7 to file an adversary proceeding? I filed more than 30 days ago and had my meeting and just waiting for the 60 days to receive a discharge. My student loan (by the way, it's just 3,000) lender just informed me that they will not discharge my debt.

Also, to how many entities do I serve a summons? When do you serve a summons to 1) Depart of Ed, USA
2) Department of Justice 3) USA Attorney General

Thank you.

Attorney answers (3)

  1. Jeffrey Daniel Larkin

    Contributor Level 15

    Answered . I agree with Mr. Smith's analysis. Unless you are severely disablied without opportunity for gainful employment your chances of discharging your student loans are slim at best.

    Mr. Larkin is a CA licensed bankruptcy attorney and is located in San Diego. His response here does not constitute 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 in question. Many times the questioner may leave out details which would make the reply unsuitable. Mr. Larkin strongly advises the questioner to confer with an attorney in their own state to acquire more information about the specifics of their case

  2. Charles Ross Smith III

    Contributor Level 16

    Answered . Holy cats! You are ambitious. The procedure for filing an adversary proceeding in Bankruptcy Court is complicated. It takes knowledge and judgment to decide if one should be filed in the first place. And student loans are not easy to discharge. Ever. Serving the summons is just the first part of a adversary complaint. There is no way to help you short of writing a book on the subject. But here's my advice, anyway.

    The first thing you need is grounds for your complaint. Do you have some kind of hardship? (I'm thinking that you are not a quadraplegic.) "Undue Hardship" is the standard. Did the school cheat you? Did you not get the education you were promised? Was the school unlicensed? Would you be stuck living on $10.00 a month forever if you were to have to pay this loan? If you have no grounds, there is no use in filing. Instead, make a deal to pay off your student loans.

    If you think you really have evidence to show why the Court should make the loan dischargeable, go to an attorney and ask for their opinion. That much you could get for free, maybe. Also ask what they would charge to file the adversary action. Do not try this yourself. It would be like trying to do brain surgery on yourself.

    By the way, you appear to have filed your bankruptcy petition by yourself. I congratulate you. However, you should not press your luck here. The Bankruptcy Court takes it very seriously when an adversary proceeding is filed without cause. Good luck.

    Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

  3. Jeffrey B. Lampert

    Pro

    Contributor Level 19

    Answered . Let me pile on to the prior answers of my colleagues: getting a student loan discharged is not just, not just difficult, not just very hard, not just complicated--it is almost impossible unless your circumstances are EXTREMELY dire. Even if you were disabled, that is not in and of itself a basis to discharge a student loan. Even if you were elderly, that is not in and of itself a basis to discharge a student loan. Even if you were disabled, elderly and unemployed, that is not in and of itself a basis to discharge a student loan.

    My observation is that $3,000 in student loan debt is not a lot of money in the grand scheme of life. If you are elderly, unemployable, without a possibility of earning money with which to pay the student loan, then there is a chance.

    But, I am not a judge and I am not G*d, so it is not for me to say with 100% certainty what will happen. But, the point is, the likelihood of success is very, very slim.

    Also, your question regarding service of the summons shows a great deal of intelligence, in that you understand that entities other than the lender must be served with the adversary complaint. By the same token, that technical question is the tip of the iceberg. Are you truly prepared to litigate the adversary? Comply with Rule 26 disclosure requirements? Prepare the necessary disclose statements? Prepare the testimony declarations?

    I am not trying to impress you with my knowledge. After all, Rule 26 of the Federal Rules of Civil Procedure is available on line. But having done several adversaries over the years, I know that there are procedural requirements that must be followed to a "T".

    Good luck to you in your decision making process.

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