I filed bankruptcy in 2014 and recieved a discharge. I thought I could not include my student loans at that time which wre in deferment. Thye are now do and I can not afford the $1400 a month payment. Trying to pay them would put my health at risk as I have chronic uncurable health problems. I would like to reopen my case to file an adversary proceeding
You need to consult with an experienced NY Bankruptcy attorney to know how to proceed and what your options are. Although an in person consultation would be necessary to determine what is the best course of action for you, if you meet what is known as the 3 part Brunner test to evaluate whether a debtor can demonstrate undue hardship sufficient to part ways with their student debts. if you can satisfy each of the following 3 requirements, your student loan debt may be dischargeable. (1) You cannot maintain, based on current income and expenses, a minimal standard of living for the debtor and dependents if forced to pay off student loans;
(2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans;
(3) You have made good faith efforts to repay the loans.
Although courts tend to interpret the Brunner test strictly, whether you qualify for a hardship discharge will ultimately be a function of the individual facts and circumstances of your case as well as the attitudes toward student debt which are prevalent in your jurisdiction. It is very difficult, but not impossible to discharge student loan debt in bankruptcy.
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You feasibly could and can do so by filing a motion to reopen. Whether the motion is granted will depend on whether the judge feels your reasons for reopening are justified.
Keep in mind getting student loans discharged is a Herculean task and the standards for a hardship discharge are monumental.
Not sure the particulars of NY, but here in California I just reopened a case from 2010. "reopening" the case typically isn't the difficult part. It's the thing that you want to do after reopening that is usually the hardest part.
Tell me more about your hardship. In the past, I regularly "cut deals" directly with the student loan lender.
As you state you have chronic incurable health problems, you may be eligible to have your student loans adjusted or eliminated through programs offered directly by the administrators of your student loans. I would check into that first before re-opening the bankruptcy. You can reopen the bankruptcy, but then would need to file an adversary proceeding seeking a discharge based on undue hardship. This can be expensive and difficult, but if you're unable to work, it may be possible. You need to consult with an experience bankruptcy lawyer in your area. Almost all bankruptcy attorneys offer a free consultation.
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