05 Feb The Worst Kind of Debt You Can Have: Student Loans (Part Three)
In parts one and two, I discussed how (1) the definition of student loans is extremely broad, and (2) the history of how student loans have been come increasingly difficult to discharge. In this post, Iâ€™ll address the predominant legal standard used by almost all bankruptcy courts to determine whether a debtor’s circumstances create an â€œundue hardship.â€
The Brunner Test
In Brunner v. New York Higher Educ. Services, 831 F.2d 395 (2d Cir. 1987), the Second Circuit Court of Appeals held that undue hardship exists if:
(1) The debtor canâ€™t maintain, based on current income and expenses, a â€œminimalâ€ standard of living if he repaid the student loans;
(2) Other circumstances exist indicating that the debtorâ€™s financial condition is likely to persist for a large portion of the student loan repayment period; and
(3) The debtor has made a good faith effort to repay the student loans.
Actual decisions applying the Brunner test are varied, but at least one Circuit Court of Appeals has specifically held that a debtor need not be at poverty level to demonstrate that he was entitled to a discharge. In re Hornsby, 144 F.3d 433 (6th Cir. 1998).
When reviewing these cases, itâ€™s clear that the outcome of each case is dependent on (1) the views of the particular judge assigned to your caseâ€”any judge has his biases or leanings, and (2) the unique facts of each case. Individual circumstances, especially disabilities or misfortunes, weigh heavily in the courtâ€™s consideration. Whether or not you qualify for a student loan discharge is highly dependent on what bankruptcy judge has been assigned to your case, as well where you live. Different circuit courts of appeal cover different states, and they have all decided student loan cases and added their own interpretation of the various factors involved in these cases. So, for example, your case might come out differently if you live in Maryland instead of California. You should seek experienced local bankruptcy counsel for assistance in deciding whether to ask for your student loans to be discharged.
You must file an adversary proceeding to ask for your student loans to be discharged
To request a discharge of student loans, you must bring an â€œadversary proceeding.â€ An adversary proceeding is a separate lawsuit in your underlying bankruptcy case. You sue the student loan creditor just like you would in any other lawsuit. The adversary proceeding may be brought at any time, even after your bankruptcy case is closed.
In “The Worst Kind of Debt You Can Have: Student Loans (Part Four)â€ Iâ€™ll address some other strategies for dealing with student loans.
Russell A. DeMott is a Charleston, South Carolina Bankruptcy Lawyer who helps people file Chapter 7 and Chapter 13 Bankruptcy.
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