When Is Student Loan Discharge In Bankruptcy Legally Allowed
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The U.S. Department of Education has the legal authority to allow a borrowers federal student loans to be discharged in bankruptcy, in certain circumstances. It has not, however, generally exercised this authority.
Can The Court Discharge A Portion Of My Student Loan Debt
Yes. The court is not forced to choose between all or nothing in a student loan discharge case. The court has the option to discharge a portion of your student loans if they choose to.
When looking to discharge student loans in bankruptcy, the possibility of a partial discharge can be good or bad, depending on your situation. Sometimes, a partial discharge allows us to drastically reduce your student loan payments which can change your life.
Remember The Big Picture Bankruptcy Can Give You Relief Even If You Cant Eliminate Your Student Loans
Even if the court doesnât discharge your student loans, know that the debt relief bankruptcy provides will likely make it far easier for you to pay back any debts that the court did not eliminate on your behalf. For example, if the court discharges multiple credit card debts, you can use the funds youâd ordinarily be paying back to your credit card companies to pay your student loan servicers. Filing for bankruptcy allows you to achieve a relatively fresh start financially so that you can start rebuilding your credit score and meeting your basic needs with greater ease. As a result, even if your student loan debts arenât discharged in bankruptcy, youâll still benefit significantly from being freed from other financial burdens that may be keeping you from making timely student loan payments right now.
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Other Important Factors About Bankruptcy On Student Loans
In trying to prove that your student loans pass the Brunner test, and prior to seeking the legal advice of an attorney, its also important to consider the following.
- It Could Matter Whether Your Student Loans Are Federal or Private.Federal loans offer Income-Driven Repayment Plans . Their low monthly payments could make it more difficult to prove you are under undue hardship.
- Your Budget And Job Prospects May Be Determining Factors.Large and small aspects of your budget will be scrutinized in cases of bankruptcy. Examine your budget to get a better idea of whether or not you have a good chance of being able to prove your case.
- Some Private Student Loans May Be Exempt From The Undue Hardship Requirement.Factors such as attending a non-accredited school or borrowing more than the cost of attendance may help your case.
Examine A Student Loan Re
Pursuing an educatonal loan refinance could possibly be a better alternative to popular filing bankruptcy, if you need to abstain from unfavorable credit rating impacts and find a significantly better control in your figuratively speaking. Re-financing means taking out fully another debt to repay the outdated data.
As much as possible are eligible for a student-based loan re-finance at a cheaper rates than youre presently having to pay, there are commonly no drawbacks to re-financing. You should use Credible to compare student loan re-financing charges from several exclusive lenders at a time without inside your credit score.
The big expert associated with the tactic is that you might be able to acquire a reduced monthly interest and/or long term on the brand new financing, giving you reduce monthly payments, said Derek Brainard, director of economic education at AccessLex Institute and co-host associated with the LEX address dollars! podcast. A lower life expectancy monthly interest may possibly also produce lowering costs.
Including, state you have got $55,000 in student education loans with a 6.8per cent monthly interest. The payment per month is $682 and youve got nine a long time continuing to be in your finance phase. You re-finance to another financing with a 10-year expression at 4.25%. That reduces your payment per month to $563 and helps you to save a little more than $6,000 in interests throughout the life of the loan.
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Preparing For The Adversary Proceeding
The court will look at a number of factors in determining undue hardship. One factor it will likely consider is whether you made a good-faith effort to repay your loans. That good-faith effort may include trying to rearrange your payment schedule. If you havent already, contact your loan servicer and ask about alternative payment plans. You could end up reducing your monthly payment amount or even postponing making payments altogether.
If your lender refuses to adjust or pause your payments, document whom you spoke to and the date and time of the call. You might need to use this information as evidence in court.
You may also need to present information on your income, budget and debt burden during the adversary proceeding. In most cases, youll have already collected this material as part of the overall bankruptcy filing process.
Why Student Loan Debt Is Treated Differently
Over the years, Congress has decided that good reasons exist to stop people from getting rid of their debts by declaring bankruptcy. For instance, Congress has made child support, alimony, certain tax debts, and criminal restitution non-dischargeable. The need to protect those types of debts from discharge is obvious. But after the federal government decided to start offering federal loans, Congress chose to do the same for student loan debt.
Student loans became non-dischargeable in the late 1970s when Congress added Section 523 to the U.S. Bankruptcy Code. The thinking was that the U.S. Department of Education should be protected from borrowers racing to bankruptcy after graduating. Over the years, Congress has amended Section 523 to protect different types of federal loans , and Federal Perkins Loans) and private loans.
Currently, Section 523 protects a student loan from discharge absent undue hardship if:
- it was made or insured by the federal government
- it was made under a loan program funded by the federal government or a nonprofit
- it is a qualified education loan according to the IRS’s criteria
All federal student loans are protected from student loan bankruptcy discharge. However, some private loans may not be. You can read more about discharging private loans here.
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Criteria Based On The Educational
- The loan must have been borrowed to pay for the education of a student who is enrolled at an eligible educational institution. Eligible educational institutions are defined as Title IV colleges and universities. If the educational institution was not accredited or not eligible for U.S. federal student aid, the loan is not a qualified education loan.
Note that these criteria apply to the design of the loan, not necessarily to how the borrower chose to use the loan proceeds.
Crushed By Student Loan Debt You May Get A Bankruptcy Option
Student loan borrowers crushed by five- and six-figure balances could have their payments forgiven under a bill introduced by federal lawmakers this week that would expand the nation’s bankruptcy laws.
If passed, the Consumer Bankruptcy Reform Act of 2020 would create a new Chapter 10 provision in the U.S. bankruptcy code under which student loans would be treated like credit cards, medical expenses and other consumer debt. Borrowers would be able to file for Chapter 10 and eventually have their student loan balance removed with the approval of a bankruptcy judge.
The proposal is part of a broader bankruptcy measure introduced Wednesday by Senator Elizabeth Warren of Massachusetts and Representative Jerrold Nadler of New York, both Democrats.
Filing for Chapter 10 would give “meaningful bankruptcy relief and give Americans a better chance to get back on their feet,” Warren said in a statement.
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Alternatives To Bankruptcy For Student Loans
Since bankruptcy can be an expensive and cumbersome process, most experts see it as a last resort for borrowers. Consider bankruptcy after youve exhausted all other options, like debt consolidation, credit counseling and negotiating with creditors for a lower payment or interest rate.
If youre balancing student loan payments with other expensive, dischargeable debts like credit cards and medical bills, then bankruptcy may be able to provide relief. But if student loans are your only concern, consider these alternatives.
Bankruptcy Discharge Of Student Loans Is Very Rare
You cant simply wave a magic wand, announce to the world I declare bankruptcy and watch your student loans disappear. It isnt that easy.
In a 1981 bankruptcy court case, Judge Burton R. Lifland said that discharging student loans required a certainty of hopelessness, not simply a present inability to fulfill the financial commitment.
It is much easier to wipe away credit card debt, personal loans, auto loans and mortgages than student loans. The U.S. Bankruptcy Code puts student loans in the same category as child support obligations, taxes and criminal fines.
Statistics concerning the rarity of bankruptcy discharge for student loans are based on information provided by the Educational Credit Management Corporation . ECMC is the guarantee agency that services defaulted federal student loans when the borrower files for a bankruptcy discharge.
Only 29 of 72,000 student loan borrowers with active bankruptcy filings in 2008 succeeded in getting a full or partial discharge of their student loans, according to ECMC.
Thats 0.04%, or odds of about 1 in 2,500. Youre more likely to die of a heart attack or of cancer than to get your student loans discharged in bankruptcy. Still, the odds of discharging student loans in bankruptcy are better than your odds of winning the Powerball lottery jackpot.
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What Happens If I Have More Debt Than Just My Student Loans
If you are facing debt outside of your student loans, you can consider a bankruptcy or consumer proposal. These debt relief programs wont absolve you of your loans but will allow you to pause your payments until you have completed your program. The idea is that once your consumer proposal or bankruptcy is completed, you will have the tools and be in a better standing to repay your student loans.
When you book a consultation with David Sklar & Associates, you can have peace of mind knowing that your trustee will work with you and consider your student loans when helping you weigh your debt relief options.
Benefit Of Satisfying 7
| Satisfy the 7-year waiting period form the date of the bankrupts end of their education | |
| Filing for personal bankruptcy | If you file for personal bankruptcy more than seven years after the date of the ?end of your education? then you are entitled to an automatic discharge of your outstanding student loan |
| Making a consumer proposal | If you make a consumer proposal more than seven years after the date of the ?end of your education? then you are entitled to a discharge of your outstanding student loan on the date you satisfy your obligations under your consumer proposal |
If you file for personal bankruptcy in circumstances where you do not satisfy the seven-year waiting period, you are not entitled to an automatic discharge of your student loan debt, and your bankruptcy will have no impact on your legal obligations arising from that indebtedness. If you fail to satisfy the 7-year waiting period you will, however, be entitled to have most, if not all, of your other unsecured consumer debt discharged or forgiven as a result of your bankruptcy.
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How Does Bankruptcy Impact My Student Loan Debt
In some cases you will be able to include your student loan debt in a student loan bankruptcy, but you must meet certain conditions for your student loan debt to be included in your bankruptcy and eliminated when you receive your bankruptcy discharge.
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Generally you can only include student loan debt in bankruptcy if you have not been a student for more than 7 years, or for less time if you meet the hardship requirements.
When you declare bankruptcy you will be ineligible to receive further funding from the Student Aid funding program in your province for a certain period of time.
In BC, the length of time you will be ineligible for funding is 10 years or 8 years if you declared bankruptcy under financial hardship conditions.
Student Loan Bankruptcy: The Seven-Year Rule
When you receive your bankruptcy discharge you will only receive a release from the obligation to pay off your student loans if you file for bankruptcy at least seven years from the day you stopped being a part-time or full-time student.
In other words, you can only eliminate student loan debt in bankruptcy if you stopped being a student more than 7 years ago.
If you were a student less than 7 years ago, your student loan debt cannot be included in your bankruptcy and you must continue paying your student loan debt or seek another option for getting out of debt.
Calculating When The 7
If you are contemplating filing for personal bankruptcy or making a consumer proposal in the hopes of discharging your student loan debt, you should seek the help of a Licensed Insolvency Trustee to ensure that you have satisfied the 7-year waiting period.
To be prudent, if your goal is to have your student loans discharged, you should calculate the start date on the end of your education as the latter of
- The date you actually ceased attending school, or
- the last day of your exams for your final semester
You might want to add 30 to 90 days out of an abundance of caution.
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Eliminate Student Loan Debt
If you are experiencing problems paying your Ontario student loan we can answer questions that will help you resolve student loans. We offer a free, no obligation consultation. One of our experts will personally review your situation and answer all your student debt related questions. Let us help you choose the correct solution to resolve your student loan debts.
Alternatives To Student Loan Bankruptcy
Bankruptcy is not the best fit for everyone. Here are some options to consider to help you deal with your student loan debt:
Refinance for a lower interest rate. Depending on your student loan balance, credit score, and income, you may be able to find a lender that offers a much lower interest rate. While refinancing won’t get rid of the debt, the lower interest rate may make it easier to pay off your loans faster.
Request a deferment or forbearance. If you’re struggling with your private student loans, ask for a deferment or forbearance to give you some relief. You can also ask your student loan servicer if they offer interest rate reduction programs and other flexible repayment options.
Apply for an income-driven repayment plan.IDR Plans are affordable repayment plans offered by the federal government to federal student loan borrowers. These plans allow you to pay 10 to 15% of your discretionary income for 20 to 25 years. Any loan balance remaining after you make your final payment will be forgiven.
Check eligibility for discharges. The federal government and some private lenders will discharge your student loan debt due to total and permanent disability. You may also be entitled to a discharge if your school misrepresented your ability to transfer credits or get a job or if the school closed.
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Bankruptcy And Financial Aid
This page answers common questions about the relationship between bankruptcy and financial aid, such as student loans. The first answer concerns the impact of bankruptcy on eligibility for student loans. The second answer discusses whether student loans can be discharged through bankruptcy.
Thanks to Pat Somers of the Univ. of Arkansas at Little Rock and Art Bilski of the Illinois Student Assistance Commission for their assistance with this section.
Bankruptcy and Eligibility for Financial Aid
Will a bankruptcy affect a students future eligibility for student loans and other financial aid?
The answer to this question is a complex one because several issues are involved. It depends on the nature of the student loan programs and the type of bankruptcy.
Whatever the circumstances behind the bankruptcy, the student should talk with the financial aid administrator at the school he plans to attend, and explain the situation. The financial aid administrator may be able to guide the student to certain loan programs or lenders that may fit his needs.
Generally speaking, a bankruptcy should have no impact on eligibility for federal student aid.
The anti-discrimination rules appear in 11 USC 525:
Discharging Student Loans Through Bankruptcy
- if the borrower files an undue hardship petition
Types of Bankruptcies
