Bankruptcy discharge: private student loans can be wiped out in some cases

Many people are under the incorrect belief that student loans can’t be wiped out in bankruptcy. However, there are at least two ways to get rid of student loans in a bankruptcy case.

The first is to show the court that the loan would cause “undue hardship” and so based on that borrower’s specific situation, the loan should be wiped out. We discuss that in another article. The second is to prove that a particular loan does not meet the legal definition of “educational loan” under the Bankruptcy Code and therefore is just an ordinary loan that can be wiped out in bankruptcy.

There are two “exceptions to discharge” that may prevent student loans from being wiped out in bankruptcy.

  1. An educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or

  2. Any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual

Governmental unit or nonprofit institution

This exception covers federal and state loans. It also covers loans “made under any program funded in whole or in part by a nonprofit institution.” This sentence in the bankruptcy law caused a whole bunch of student lenders to use nonprofits just for the purpose of funding/guaranteeing their loans. In the paperwork, you may see the name of a nonprofit like The Education Resources Institute (TERI). We believe that many of these loans were not meaningfully funded by nonprofits, but instead the lender “rented” the nonprofit’s name just to avoid the loans being dischargeable in bankruptcy. This is one factor we’ll look at if we represent you in your student loan bankruptcy case.

Qualified education loan

A qualified education loan is a very complex definition that requires looking at a handful of different federal laws, but basically the loan had to be made to an eligible student (half-time or more), at an accredited school, and the loan may not have been for more than the cost of attendance at the school, and solely for educational expenses.

How to make your case

Although the two definitions above make the majority of student loans non-dischargeable in bankruptcy, we believe that a lot of loans don’t meet either definition. You can make your case either by filing an “adversary proceeding” in your bankruptcy case, or by using these arguments as a defense to a student loan collection lawsuit after you have filed bankruptcy. We are one of the only law firms in Minnesota that handles student loan discharge cases, and our prices begin at $5,000. Get in touch if you have questions.

Bankruptcy discharge: student loans can be wiped out if there is "undue hardship"

Many people are under the incorrect belief that student loans can’t be wiped out in bankruptcy. However, there are at least two ways to get rid of student loans in a bankruptcy case.

The first is to show the court that a particular loan does not meet the legal definition of “educational loan” under the Bankruptcy Code. We discuss that in another article. The second one is to show that the loan would cause “undue hardship” and so based on that borrower’s specific situation, the loan should be wiped out.

In Minnesota, courts look at three factors to figure out whether a loan causes undue hardship.

  1. The borrower’s past, present and reasonably reliable income and assets;

  2. A calculation of the borrower’s reasonable necessary living expenses for their family; and

  3. Any other relevant facts and circumstances.

This test is applied case-by-case and really depends on how well a borrower can paint the financial picture both that they can’t afford to pay their loans now, and also convince the court they will not be able to pay in the future. It’s helpful to be able to prove some kind of disability or condition that makes it harder to work or makes the stress of student loans too much to bear.

It’s much easier to wipe out private loans than federal loans using the bankruptcy process. Discharging student loans requires that you file bankruptcy first, and then file a separate case, called an adversary proceeding, against the student lender. Typical fees in a student loan discharge case are between $7,500 and $15,000, but they vary case-by-case.

We’re one of the only law firms in Minnesota who handle student loan discharge cases. Get in touch for a free consultation to figure out whether you’ll qualify.

What you need to know about student loan garnishment and tax refund offset

If you default on a federal student loan, the Department of Education has the power to garnish your wages and use your tax refund as an offset. These extremely unpleasant things all happen outside the court process and there is no statute of limitations. In fact, these collection powers are so powerful, that the Department rarely brings collection lawsuits against borrowers anymore. If you are dealing with student loan garnishment or offset, here’s what you need to know.

Wage Garnishment

The majority of federal student loan garnishments are done by the Department of Education itself. Under federal law, the Department may seize up to 15% of your disposable pay from each paycheck. This is typically the amount of your wages remaining after deducting taxes and health insurance.

The wage garnishment process happens administratively—they don’t have to sue you first and there is no court oversight of the process. They do, however, have to notify you in writing of their intent to garnish. This letter must list the nature and amount of the debt and give you a summary of your rights.

Borrowers have 15 days from the date that the intent to garnish notice was mailed to request a hearing. Borrowers can request a hearing after that date, but the garnishment will proceed while the hearing is still pending. Although borrowers have a right to an oral hearing, most hearings are conducted merely through the submission of the relevant paperwork. A decision must be issued within 60 days.

During the hearing, borrowers may object to the garnishment for a couple of reasons, including: (1) disputing the existence of the debt; (2) challenging the enforceability of the debt because it was based on forgery, or was discharged in bankruptcy or on statutory grounds; and (3) seeking to reduce the amount of the garnishment based on financial hardship. The borrower may also raise their eligibility for non-bankruptcy discharges, such as total and permanent disability or school closing during this process. There is a strict process to follow and forms that must be used to raise these issues and request a hearing.

Borrowers may also stop a garnishment by exercise their rights to rehabilitate or consolidate their defaulted loans. If all else fails, filing bankruptcy to stop the garnishment is an option.

Tax refund offset

The Department may also seize your tax refunds to offset the amount you owe on a defaulted federal student loan. They have to notify you in writing of their intent to seize your tax refund and provide you with a summary of your rights.

The defenses to a tax refund offset include: (1) disputing the existence of the debt; (2) challenging the enforceability of the debt because it was based on forgery, or was discharged in bankruptcy or on statutory grounds; and (3) the borrower is current on a repayment plan for the loan. In general, hardship is not a defense to a tax refund offset.

Borrowers may also prevent a tax refund offset by entering into an agreeable repayment arrangement or by exercising their rights to rehabilitate or consolidate their defaulted loans, though there are strict timelines that must be followed to prevent the tax refund seizure. As a practical matter, it is nearly impossible to get a tax refund back after it’s been seized.

Finally, filing bankruptcy will stop the tax refund offset.

How to deal with federal student loans

As total student loan debt in the United States approaches $1 trillion, many borrowers are going into default. On federal student loans alone, the number of people who went into default during the first three years after graduation was a staggering 13.4 percent. There are a few things borrowers can do to deal with runaway student loans.

If the federal student loan is not in default

If a federal student loan is not in default, there are numerous repayment options available, including a number of income-driven payment options. Each of these programs allow a borrower to pay a percentage of his income to his loans (sometimes as low as zero percent) and the remaining debt is forgiven after a number of years (20-25). The government has a web site that allows you to explore these options.

If the federal student loan is in default

Once default occurs, income-driven repayment plans aren't available anymore and the student lender will tack on a 25 percent collection fee to the balance. The lender can then garnish wages and seize tax returns. If a loan is in default, you have two options: rehabilitation or consolidation.

Rehabilitation

In our experience, rehab is the best option for most borrowers. To rehabilitate your federal loans, you must make nine consecutive reasonable and affordable payments. The payment amounts are determined by your disposable income and can be as low as $5 per month. To start the rehab process, contact your loan servicer and request info on rehab. The servicer is required by law to give you this information. You will likely have to submit some form of income verification.

Once you’ve made the required payments, your loan will be taken out of default status and income-based repayment options are available again. The default status will be removed from your credit report, although past late payments can still be reported.

You can begin the rehab process even if your wages are being garnished or tax refunds are being seized, though the garnishment or seizure probably won’t stop until you’ve made all the rehab payments.

It’s also important to understand that you can only rehab a defaulted loan one time. So it’s critical to transition to an income-driven repayment option once you’ve completed the rehab so you don’t default again.

Consolidation

Consolidation is the process of paying off your defaulted federal student loans with a new loan. Consolidation may be an attractive option for a person who can’t wait nine months to get out of default. Typically, this is someone who wants to go back to school right away and needs immediate access to additional federal student aid that isn’t available when loans are in default. Most, but not all, federal loans are eligible for consolidation.

Before you can consolidate your loans you must either: (1) make three consecutive fully monthly payments; or (2) agree to pay off the new consolidated loan through an income-driven repayment plan.

You can begin the consolidation process by requesting info from your servicer or apply for a consolidation loan directly through the federal government. Consolidation isn’t available if your wages are being garnished, unless you can get the garnishment order lifted.

After consolidation, past late payments and past default status will remain on your credit report.

Finally, consolidation is generally only available one time—you typically cannot consolidate a loan that has already been consolidated.

Discharging federal student loans outside bankruptcy

A federal loan can be administratively discharged by the U.S. Government for a few reasons. These include things like the borrower becomes totally disabled or the school closes while the borrower is attending. More information about these options is available on the federal student loan website.

Discharging federal student loans in bankruptcy

Contrary to popular belief, student loans can be discharged in bankruptcy, but it's not always easy. A student loan can be discharged if paying it would cause "undue hardship" to the borrower. It's not totally clear what this means, since different courts have interpreted this in different ways, but it's definitely something more than just not being able to afford to pay off loan on a borrower's current income. A borrower generally has to show that she will never be able to pay off the loan to have it wiped out in bankruptcy.

Payment plans in Chapter 13 bankruptcy

One last option for borrowers struggling to pay private loans is Chapter 13 bankruptcy. In Chapter 13, a borrower can force the lender to enter a repayment plan over a five-year period.  This can be necessary where a borrower is being sued and the lender is demanding the full amount to be paid at once "or else." The downside to this approach is that if the court-ordered payments are low enough, interest will accumulate faster than it's paid off and the borrower will owe more at the end of the five years.

How to deal with private student loans

Unlike federal student loans, borrowers have few good options for dealing with unmanageable private student loan payments. If your private loan has gone into default, here’s what you need to know.

your options for defaulted private loans

You basically have three options for dealing with a private student loan in default: (1) negotiate a settlement or payment plan with the debt collector; (2) wait to be sued and defend yourself in court; (3) try to wipe out the private loans in bankruptcy.

Negotiation

Private student loan borrowers do not have the protection of federal income-based repayment options. You’ll have to work with the debt collector and try to agree on a reasonable settlement or payment plan you can afford.

Defend yourself in court

If the debt collector won’t be reasonable about settlement, another option is to wait to be sued and defend yourself in court. There are a variety of defenses available in a private student loan lawsuit. While the best case scenario would be getting the case thrown out, in most cases pushing back in court will soften the collector’s bargaining position and get you a more reasonable settlement.

Discharge in bankruptcy

It is difficult, but not impossible, to wipe out private student loans in bankruptcy. You should consult with a bankruptcy lawyer experienced in dealing with student loan issues to see if discharge might be a viable option for you.

Your rights when dealing with private loan debt collectors

Knowledge is power and you should educate yourself on your rights when dealing with private student loan debt collectors. The Fair Debt Collection Practices Act forbids collectors from using misleading, abusive, or harassing collection tactics. You can sue a debt collector who breaks the law even if you owe the debt and there are many benefits to holding a debt collector accountable.

Common FDCPA violations in student loan collections include misleading threats about garnishment and lying to you about wiping out your student loans in bankruptcy.

How to defend a private student loan lawsuit

Procedurally, there aren’t any differences between a private student loan lawsuit and any other debt collection lawsuit. The lawsuit begins with the service of a summons and complaint. Even if the summons doesn’t have a court file number, you must still answer it within 20 days. Your answer must respond to all of the allegations in the complaint and should identify your defenses.

The defenses in a collection lawsuit, however, are somewhat different than those typically asserted in, say, a credit card collection lawsuit. Here is a list of some of the more common defenses in a private student loan lawsuit.

statute of limitations

The statute of limitations in a private student loan lawsuit in Minnesota is generally six years from the date you defaulted on the student loan. Be careful, though, because this analysis can be complex. You need to look at the default triggers in your loan agreement and think carefully about when you first went into default. Depending on your agreement, it may not have been when you first missed a payment. Next, you need to figure out whether Minnesota’s six year statute of limitations period is applicable, or whether another state’s shorter statute of limitations period applies. Then you need to calculate the time between your default and the end of the applicable time limit to determine whether the lawsuit was started in time.

If you can show that your lawsuit was beyond the statute of limitations, a Court should throw it out.

illegal interest rate

Watch out, this one is tricky too. Most states limit how high an interest rate can be charged for certain loans. But there is also a federal law, the National Bank Act, that may allow some lenders to avoid state law interest rate caps. To figure out whether the interest rate on your loan is too high involves a complicated analysis of who your lender is, where they are located, and what interest rate law applies. This is even more difficult because many student loans have variable interest rates that change over time.

If you can show that the interest rate charged was illegal, you should be able to reduce the amount owed. In some cases, you may be able to eliminate the student loan debt entirely.

discharge in bankruptcy

If you filed bankruptcy after taking out the student loans, you may be able to show that the loans were wiped out in your bankruptcy. This, too, is a complicated analysis that involves looking at who made your loan, where you went to school, what you went to school for, whether you used the student loan proceeds for anything other than education, and a bunch of other factors.

But if you can show that your loan was not the type that is automatically discharged in your bankruptcy, you might be able to get a court to throw out the lawsuit.

insufficient evidence

Many private student loans are being acquired by debt buyers. Because they didn’t originate the loan, debt buyers may not have sufficient evidence to prove that they own the debt or the amount owed.

Contract formation issues

If you never agreed to the loan and signed the paperwork, the loan contract shouldn’t be binding. We’ve seen several cases where the primary borrower forged a co-signor’s signature, so if you don’t recognize a loan, you should ask some questions before you concede owing it.

Differences between federal and private student loans

Probably the first step in figuring out your options for dealing with student loans is to determine whether your loans are federal loans or private loans. Here are the key features of each:

FEDERAL STUDENT LOANS

Federal student loans are made or guaranteed by the Department of Education. The most common federal student loan types are Stafford, Direct Loan, PLUS, and Perkins loans. Borrowers can use the National Student Loan Data System to figure out what type of federal loans they have.

Federal student loans generally have lower interest rates and the law gives borrowers many more options for dealing with them if the payments become too burdensome. However, there are very few defenses available if the government begins legal action after default.

Federal student loans are difficult, though not impossible, to wipe out in bankruptcy.

PRIVATE STUDENT LOANS

Private student loans are typically made by banks, credit unions, state agencies, or schools themselves. They may have names like “alternative” or “institutional” loans.

Private student loans typically have higher interest rates than federal loans and the borrower’s credit history will often determine the precise terms. And unlike federal loans, borrowers have very few options if they fall behind on payments. On the bright side, borrowers may have more defenses available if a private student loan lender begins legal proceedings.

Although still challenging to discharge in bankruptcy, private student loans may be a little easier to wipe out than federal loans.

How to know if your student loan is in "default"

A federal student loan is in default if you have gone more than 270 days (9 months) without making a required payment. Once a federal loan is in default, a 25% collection fee will be added to the balance and the government may seek to garnish your wages or seize your federal tax refund.

Private student loan default is governed by the loan agreement and may begin after just one missed payment. Private loan contracts also typically provide for default if the borrower: (1) breaks any promise in the loan agreement; (2) files bankruptcy; or (3) makes a false statement in the loan application.

Once a private loan is in default, the loan may be referred to a debt collector or the borrower may get sued by a collection law firm.

Common FDCPA violations in student loan collections

The total amount of federal student loan debt in the U.S. is about one trillion dollars. When a borrower falls behind on payments, the student loan collections process begins. Although federal student loan collectors have impressive collection powers, it's important for consumers to recognize that the Fair Debt Collection Practices Act still prevents a debt collector from making false or misleading statements or otherwise harassing or abusing a consumer. Here are some of the most frequent FDCPA violations in student loan collections:

Misleading threats to garnish wages

Debt collectors often mislead or lie to consumers about the imminence of a wage garnishment if the consumer doesn't pay immediately. A federal student loan collector may institute an administrative wage garnishment against a consumer who is delinquent. No judgment is required. But there are important steps that a collector must follow before starting an administrative wage garnishment. They must send the consumer a notice--at least 30 days before starting the garnishment--that advises the consumer of their right to inspect the records related to the debt, their right to a written repayment agreement, and their right to a hearing. The consumer then has 15 days to request a hearing. And a private student loan collector doesn't have the ability to do an administrative wage garnishment. They have to sue the consumer and get a court judgment first. So, a collector can't just start a wage garnishment immediately if the consumer doesn't pay and any threats to the contrary probably violate the FDCPA.

Lies about how to get a federal student loan out of default

Debt collectors often lie to or mislead consumers about the ability to get a loan out of student loan collections. A federal student loan is considered to be in "default" if the borrower goes 270 days without making a payment. Once the loan is in default, a 25% collection fee may be tacked on. But a borrower can get a federal student loan out of default by "rehabilitating" the loan. This means making nine voluntary, reasonable, and affordable monthly payments within 20 days of the due date during ten consecutive months. A borrower may also be able to get the loans out of default by consolidating into a single loan. Debt collectors often tell consumers that there's nothing they can do to get the loan out of default, or don't tell them about all of their options, which may violate the FDCPA.

Telling consumers that they can't discharge student loans in bankruptcy

Student loan collectors often tell consumers that student loans can't be discharged in bankruptcy. While this is often true, it isn't always true. A borrower may be able to get a student loan discharged if they can prove undue hardship. The burden of proving undue hardship is very difficult, but it can, and has, been done. A debt collector that tells you that student loans can never be eliminated in bankruptcy isn't telling the truth and is likely violating the FDCPA.

Illegal contacts with third parties

Under the FDCPA, a student loan collector (or any collector) can't communicate with your family members, co-workers, friends, or other third parties. Even threats to do so probably violate the FDCPA.

The bottom line

If a student loan collector chooses to give a consumer legal advice, they better get it right. Making false statements about the law or a consumer's options probably violates the FDCPA.

Stop collection harassment with the FDCPA

The best way to stop collection harassment is to know and enforce your rights under the Fair Debt Collection Practices Act. The FDCPA is a powerful federal law that regulates what debt collectors can and can't do when collecting debts. In passing the FDCPA, Congress recognized the negative impact that abusive debt collection has on people and provided powerful remedies against collectors who break the law. Here's what you need to know about how the FDCPA protects you from debt collection harassment:

The FDCPA applies to "debt collectors" collecting "consumer debts"

The FDCPA only covers a debt collector that is collecting a debt for someone else. It does not apply to a creditor collecting its own debts. So if you are getting collection calls from a bank or credit card company that is collecting its own debts, the FDCPA doesn't apply. But the FDCPA does apply to collection agencies, debt buyers, and law firms who are collecting debts for someone else.

In addition, the FDCPA only applies when the debt being collected is a consumer debt. This is a debt used for personal, family, or household purposes. If the debt was incurred for a business, the FDCPA doesn't apply.

The FDCPA protects you even if you owe the debt

It doesn't matter if you owe the debt, the collector still must follow the FDCPA. The law recognizes that you shouldn't be subjected to collection harassment and abuse just because you owe someone money. The FDCPA also protects people who are being wrongfully pursued for debts that they don't owe.

Any conduct that is unfair, untrue, or harassing is prohibited

In general, any collection conduct that is harassing or abusive, false or misleading, or unfair is a violation of the FDCPA. This is extremely broad and potentially covers a wide range of collection tactics. The FDCPA itself and various court decisions have established that the following specific conduct is illegal:

This isn't an exhaustive list. If you think a collector's conduct might be illegal, you should talk to a consumer lawyer to determine whether the FDCPA has been violated.

How to use the FDCPA to stop collection harassment

The FDCPA gives consumers the power to sue a debt collector that violates the law. It's a great way to stop collection harassment cold and to hold the debt collector accountable for its illegal conduct. Under the FDCPA, a successful claim gets you:

  • Up to $1,000 in statutory damages (even if you've suffered no monetary loss);

  • Provable actual damages (including for emotional distress);

  • Your attorney fees and court costs must be paid by the collector

Most consumer lawyers, including me, handle FDCPA lawsuits on a contingency fee. This means that you don't pay us any fees unless I recover money for you and those fees come from the collector's pocket, not yours. Congress wrote the FDCPA this way to incentivize people to enforce the FDCPA and help the government regulate debt collectors and ensure compliance with the law.

How chapter 7 bankruptcy works

The word “bankruptcy” may conjure images in your mind of auctioneers selling all your property except the clothes on your back. The reality is that Chapter 7 bankruptcy isn’t anything like that. The three most common reasons that people file bankruptcy are divorce, job loss, and medical bills. It’s very likely that you have friends, family or co-workers who have gone through bankruptcy and that you never heard a word about it.

So how does Chapter 7 bankruptcy work? We offer a 30-minute free phone consultation where we can review your options with you. We collect information about your income, expenses, debt and assets. After this initial evaluation we help you figure out whether you qualify for Chapter 7 (this will depend on income, family size, etc. though most folks who come see us do qualify).  Next, we discuss whether the debts can be wiped out in bankruptcy. Taxes can be dischargeable sometimes, same with student loans. Alimony/child support are dischargeable. Credit cards, personal loans, utility bills and medical bills can be wiped out.

If the client qualifies for Chapter 7, we discuss the ramifications of bankruptcy. It may be more difficult to get a mortgage for the next few years and any car loan you take out will likely be at a higher interest rate than someone who hadn’t filed might qualify for, but in general, you can overcome these disadvantages by building credit after bankruptcy. Job seekers and people who might be looking to rent an apartment should know that only a very small percentage of employers and landlords will run credit checks.

Next, the conversation turns to assets. People want to know what property they can keep in a bankruptcy. The short answer is that you would only have to surrender property which is not “exempt.” The bankruptcy code is full of exemptions. Your clothes, furniture, household goods are safe unless you’re a Kardashian or something. You can generally keep your house and car, though some people use bankruptcy to get rid of underwater houses or cars.

The Process

If a client decides to file, we get started putting together all the required paperwork and filling out schedules. Then we file the case with the court. This filing begins what is called the “automatic stay.” During the automatic stay no creditors can contact you, either by telephone or by mail. If they do, we may be able to sue them and collect money damages.

Approximately one month after filing, you’ll meet with a bankruptcy trustee. This is called a 341 meeting. It’s the trustee’s job to make sure you aren’t hiding assets anywhere. It usually takes less than five minutes.

About sixty days after the 341 hearing, if all goes well, the bankruptcy is confirmed and all your dischargeable debts are eliminated. This means that the creditors can never attempt to collect the debts again, and you get a fresh start.

"As is" isn't a license to rip you off on a used car

We get a lot of calls from people who have been fraudulently sold cars with serious defects. Generally, when a car is sold it comes with an "implied warranty" that the car will be fit to drive.

But when a consumer lets the dealer know that the car is no good and they want their money back, the dealer will often insist that the car was sold "as is," and so it's "not my problem." But the dealers don't understand the law--there are many reasons a buyer will have remedies even when the car is sold as is. I'll break down a few of them here.

  • The car was sold with a warranty or a service contract. Under federal law, a dealer can't disclaim "implied warranties" in a sale if it sold the car with a warranty or a service contract. So that means that if a car comes with any type of warranty, including Minnesota's legally-required warranty for used cars under 75,000 miles, implied warranties may apply.

  • The dealer acted in bad faith. Under Minnesota law, a dealer can't disclaim implied warranties if it acted in bad faith. This might apply if the dealer knew about the problem with the car and lied about it. Or it tried to cover up the problem, before or after the sale.

  • A dealer can't get off the hook for specific statements it made about the car. "Express warranties" can never be disclaimed. This means that if the dealer said "the car has never been in an accident," or "this car is in great condition," or "the check engine light is only on because the car needs a new oxygen sensor" when it actually needs a new engine, it can't squirm out of those untrue statements by hiding behind "as is."

Because the dealer says "as is" is their free pass to lie, cheat and steal, people often think they don't have a claim for auto fraud when they actually might. If you think you were ripped off by a dealer, get in touch.

How to dispute an error on your credit report

It's an unfortunate reality that many consumer credit reports contain errors. Here's what to do if you discover an error on your credit report:

Write a letter to the credit reporting agency explaining what information you believe is inaccurate

When the credit reporting agency gets your letter, they must conduct an investigation and remove any information that cannot be confirmed as accurate. The CRA is required to send the furnisher (the business providing the information on the report) all of the information that you provide. Your letter should contain the following:

  • (a) Your full name and address. You may also consider including your social security number to ensure that the CRA locates your file.

  • (b) Identification of every single item that you believe is inaccurate. One way to do this is to include a copy of your credit report and circle each of the items you dispute.

  • (c) An explanation of why each disputed item is incorrect. Be detailed and describe your dispute as if you were explaining it to a young child. CRAs may disregard your dispute if it isn't sufficiently detailed.

  • (d) Attach copies of all of the proof that you have that supports your dispute.

  • (e) Tell the CRA if you have previously disputed these items, provide the details of these prior disputes (including any phone disputes), and explain how the CRA's failure to correct the errors is harming you.

  • (f) Most importantly, tell the CRA what you want them to do (ie. delete the incorrect entry; modify it, etc).

Mail the letter certified, return receipt requested, and keep a copy of the letter and green card for your records

Address the letter to the credit reporting agency whose report contains the error. Some experts advise sending a copy of the dispute letter to the furnisher. This isn't a bad idea, but you're not required to do so. The CRA is required to send the furnisher all the information that you provide them with.

You may have to write several dispute letters

The CRA may not fix the error after your first letter. Be persistent and write follow-up dispute letters until you get the mistake fixed. Avoid the shortcut of just sending the CRA another copy of your first dispute letter. Read their response to your previous dispute letter and do your best to address the reasons they denied your dispute in your follow-up letter. Don't be afraid to detail your previous attempts to fix the error and to describe the harm the CRA's failure to correct the mistake has caused you in these follow-up letters. And be sure to keep copies of all the letters that the CRA sends you in response to your dispute letters.

If you've written multiple letters and the CRA still hasn't fixed the error, it's time to talk to a consumer attorney

If you've followed all these steps and the error hasn't been fixed, contact a consumer attorney with experience handling cases under the Fair Credit Reporting Act.

Finally, a few words of caution

  • It's perfectly acceptable for a CRA to report accurate negative information. Don't abuse the dispute process by seeking removal of accurate negative information. Similarly, be very wary of any credit repair "specialist" that promises to improve your credit score by using repeated and shallow dispute letters or similar questionable tactics.

  • It's much better to write dispute letters than to dispute over the phone or to use the CRA's internet form. Writing letters creates a paper trail for your records and it allows you to attach proof of your dispute. It's also possible that a CRA's internet dispute form might require you to waive some of your rights when submitting your dispute electronically.

  • Avoid using sample dispute letters that you find on the internet. Many of the sample letters you will find on the internet are shallow, deceptive, or even fraudulent. There is no magic language for writing a good dispute letter. Just adequately identify yourself, identify the account you're disputing, and provide a detailed explanation of the error. It's much better to use your own words than to rely on boilerplate language from a possibly untrustworthy source on the internet. If you must look at a form letter before writing your own, there's a sample letter on the Federal Trade Commission web site.

Can I wipe out tax debt in bankruptcy?

This post describes how to deal with tax debt in bankruptcy.  Tax debt is one of the hardest kinds of debt to shake. First of all, the IRS knows where you are. Also, they have special enforcement powers to collect their debt. They can put a lien on your house or your property without suing you. They can take money in your bank account without a judgment. They can seize tax refunds. They can take you social security. And they can also garnish your wages, often for a lot of money. But contrary to popular belief, tax debt can be wiped out in bankruptcy , especially if it's old. Here's how it works.

1. The rules: For income tax debt to be wiped out in bankruptcy, the following three rules must apply:

Rule 1: The income tax return must have been due more than three years ago. The first question we ask to figure out income tax dischargeability is whether the tax return was due more than three years before the date of bankruptcy filing. 2008 income taxes were due on April 15, 2009. Today is February 8, 2012. These taxes are not dischargeable today, but they pass this test if we wait until April 16 to file. But there's one wrinkle. If you filed for a six-month extension that year, your tax return wasn't due until October 15, 2009. So if you're looking to discharge income taxes, we can't file your bankruptcy case until October 16, 2012.

Rule 2: The income tax return must have been filed more than two years ago. This one seems easy. If the return was filed more than two years before today, this test is satisfied. In some cases, the taxpayer never actually files a return, and so the tax agency files one for them (sometimes called a "substitute return."). When that happens, the two-year clock never starts running, and until the taxpayer actually files his/her own return, this test can never be met.

Rule 3: The tax must have been assessed more than 240 days ago. This means that the tax agency's determination that you owe a debt must have been made more than 240 days ago. The "determination" can be a few different things--wither you filed your return and acknowledged you owe a balance. That's an assessment. Or the IRS changed your return to say that you owed a balance. That's an assessment too. Finally, if you were audited, and the IRS added a balance based on the results of the audit, that's an assessment too. This part of the test is the most confusing, and you might want to see a tax professional (tax accountant or attorney) to figure out the assessment date.

2. Other factors add time to the clock. If you've filed bankruptcy before, the amount of time your case was open, plus six months, are added to all the time limits above. Also, filing an Offer in Compromise with the tax agency can stop the clock.

3. Some kinds of taxes are never dischargeable. Income taxes can be discharged if they meet all the above tests. There are other kinds of debts, such as sales taxes or payroll taxes collected on behalf of an employee, that will never be dischargeable. See a tax attorney if you're facing these types of debts.

4. If a tax debt can't be discharged, you still may be able to stop collection by filing Chapter 13. Chapter 13 bankruptcy stops all collection efforts by a tax agency, and allows you to spread the tax debt over a three to five-year period. This can be a big relief when the tax agency is looking to put liens on your property or garnish your wages, sometimes up to 90 percent of your income.

Common credit report errors to look for on your report

Your credit report is becoming increasingly important in our data-driven society. Lenders use it to determine your eligibility and terms for all types of credit. Employers may use it to determine whether to hire you. It's therefore critical to review your credit report on a regular basis to make sure it doesn't contain any incorrect information. Studies have shown that nearly 80% of credit reports contain a mistake of some kind. Here are some of the common credit report errors:

  • Incorrect name. Make sure your name is right, especially if your name is relatively common. An incorrect middle name or nickname may be a sign that someone else's information is incorrectly on your report. For example, if your name is Samuel and you sometimes go by Sam, make sure that the name Samantha isn't showing on your report.

  • Inaccurate biographical info. Similarly, make sure that the correct social security number and address appears on your report. Most reports will also list previous addresses. Make sure these are accurate too. If an address you never lived at shows up on your report, that's a sign that someone else's info may be on your report.

  • Mistaken account status. Review each account to be sure that current accounts are not reported as delinquent and that open accounts aren't showing as closed.

  • Duplicate reporting. Make sure that accounts aren't mistakenly listed twice on your credit report. This could lead a lender to believe that you have more debt than you actually do.

  • Accounts that aren't yours. Any accounts that don't belong to you should be an immediate red flag. This mistake is often caused when your file is mixed with another person's file. It could also be a sign that someone has stolen your identity and fraudulently opened accounts in your name.

If your credit report contains these, or other mistakes, your next step is to notify the credit reporting agency of the errors and ask it to correct them. This dispute will trigger the agency's duties under the Fair Credit Reporting Act. Normally, credit reporting agencies have 30 days to investigate credit report errors and correct them. Unfortunately, these agencies don't always take consumer disputes seriously and you may have to dispute multiple times to get the mistake corrected. If you've sent multiple disputes and the credit reporting agency still hasn't corrected your credit report error, you may want to consult with an attorney who handles credit reporting issues. An attorney can advise you about your options to get your inaccurate credit report corrected.

How does Chapter 13 work?

How does Chapter 13 work? Clients are asking us about Chapter 13 Bankruptcy, and while it has some similarities to Chapter 7, it's also way different. Chapter 7 fits best where you can't pay your debts and don't have many valuable possessions, but Chapter 13 makes sense if you have substantially more income (you can pay a portion of what you owe over time) and/or you own property that is not covered by the bankruptcy exemptions.

Chapter 13 can stop foreclosure

We often use Chapter 13 to stop foreclosure. Chapter 13 can allow a homeowner to catch up on missed mortgage payments, pay tax debts over time, or to wipe out an underwater second mortgage.

How Chapter 13 works

We figure out your disposable income, which basically means your take-home pay minus your actual living expenses.

How much do I have to pay to creditors? Once we know your disposable income, that may be close to what your "plan payment" will be. Your plan payment is the amount of money you will pay to your creditors over a three-to-five-year period. In general, your plan payment goes to pay off your secured debt (like a car loan) in full, as well as your priority debt (overdue taxes, government penalties, etc.) A portion of your general unsecured debt (credit cards, medical bills, legal judgments) is paid out of the rest of your plan payment, but that doesn't have to be paid in full, and lots of times, can be paid at pennies on the dollar..

How do I make my plan payments? You make plan payments directly to the Bankruptcy Trustee, who tacks on an additional fee (in Minnesota, the fee is about 7 percent of your payment) and spreads each payment out to your creditors. You need to have steady enough income to stick to payments, because if you miss them your case will almost certainly be dismissed.

How much does Chapter 13 cost? The filing fee is currently $310, which is 25 bucks less than the Chapter 7 filing fee. The total attorney's fee for Chapter 13 is usually more than Chapter 7, but most times you end up paying the same or even less, since we have the ability to take some of our fees from the plan payments, meaning that it comes out of your creditors' pockets, not yours.

How do we know which chapter you should file? There are a few common scenarios where you might choose a Chapter 13 bankruptcy.

How do I stop foreclosure?

The most common problem people come to see about is foreclosure. Knowing you might lose your home in foreclosure is scary, but there are a lot of ways we can help you get back into good standing on your mortgage so we can keep you in your house. In this post I run down some of the options out there:

1. Try for a loan modification. In our opinion, most of the loan mod programs out there are nearly worthless. HAMP can be a good fix for a homeowner behind on payments, since it reduces monthly payments AND puts your loan back into good standing. But since there's no way to force lenders to comply with HAMP, most people are left out in the cold (and pushed into foreclosure). It's been very rare to see a homeowner get a HAMP modification, but that doesn't mean you shouldn't try it, hoping to catch the right person on the right day and catch a lucky break.

As for the lenders' "internal" modification programs, your guess is as good as ours whether you'll qualify.  Since the criteria and terms of these mod programs are usually secret, you're at the lender's mercy. So if you go this route, negotiate and negotiate hard. Even though the customer service rep on the phone might not realize it, the bank is probably going to lose a lot of money if they foreclose on you. Show them why. It might be helpful to order an appraisal--if the lender knew your house was $100,000 underwater, they might not think it's such a good idea to kick you out of it.

2. Don't hire loan modification sleazeballs. If foreclosure is the number one problem we see in our office, 1A is people who have paid sleazy loan modification outfits to help them stay out of foreclosure. These programs are expensive, and most of the time they just don't work. In particular, stay away from: 1) out-of-state companies (it's harder to get your money back), 2) companies that tell you to stop making your mortgage payments; and 3) for-profits that ask for a large up-front fee without telling you what they can do for you or how they can do it. So many people get caught up in these scams, and it only creates a bigger mess to clean up once the scammer runs away with the money and leaves you right where you started or worse.

3. Consider Chapter 13 reorganization. Chapter 13 is a way to force a lender to accept repayment of your arrears over time. It's ideal for the person who missed a bunch of payments, but now has the income not only to make the payments, but also to catch up and stop foreclosure. Chapter 13 allows you to pay your mortgage arrears in equal installments over a three- to five-year period. It can be surprising when a lender refuses to let you catch up on your mortgage, even when it knows you have the income for it. This way you can call the shots and force them to accept your money.

4. Strip off your second mortgage. If you didn't have to pay your second mortgage, could you afford to catch up on your mortgage? As of earlier this year, in a Chapter 13 reorganization we can strip second mortgages (and third mortgages, and fourth...) where the value of the house is less than the balance of the first mortgage. It's called lien stripping. To do this, we need an appraisal to prove the value of your home. Once we can prove that your second mortgage is fully unsecured, we can strip the lien in Chapter 13.

5. More people have just been moving on. If you can't afford your mortgage payment, can't qualify for a modification, and bankruptcy won't help your situation, it's time to make some hard choices. If you have an underwater house, meaning you have no equity, what do you really own? And if you have to pay $10,000 just to get back into good standing, is it really worth it? If you decide to abandon a home to foreclosure, you can usually live in the house mortgage-free for at least six months while the foreclosure runs its course. For many of our clients, this is just enough time to save up some money to make the transition to a new place to live comfortably. And if you have a second mortgage that won't go away in the bankruptcy, well we can usually wipe that out in Chapter 7.

How to answer a collection lawsuit in Minnesota

Before I explain how to answer a collection lawsuit, it's important to understand that Minnesota is a unique state because a lawsuit is started by serving the defendant. It is not required to be filed with a court at the beginning of the case. Because of this quirk, a lawsuit in Minnesota will almost never have a court filing number. And the courts will not have a record of the lawsuit until the creditor files the lawsuit and pays the filing fee. But this doesn't mean the lawsuit isn't legitimate. If you're served with a lawsuit in Minnesota, you must answer within 20 days. If you don't answer the lawsuit, it's likely that a default judgment will be entered against you without a court hearing. So the first step to respond to a collection lawsuit is to answer it. An answer is a formal legal document that responds to each of the allegations in the lawsuit. A phone call or letter isn't sufficient. Here's how to answer a collection lawsuit in Minnesota:

Fill out the caption

Overall, your answer should be formatted much like the collection lawsuit itself. Start by filling out the caption at the top of the lawsuit. This is where the name of the county and judicial district are listed. It's also where the plaintiff and defendant's names appear. You can basically copy this directly from the lawsuit. Just change the title of the document from "complaint" to "answer."

Respond to all of the allegations in the lawsuit

The body of your answer is where you respond to the allegations in the complaint and list your defenses. It's best to number each paragraph of your answer to correspond with each numbered paragraph of the complaint. There's basically three responses to an allegation: (1) admit; (2) deny; and (3) deny based on a lack of information.

Your responses must be truthful, so if you know that the allegation is true, you have to admit for. For example, if the collection lawsuit alleges that you live in Hennepin County and you live in Hennepin County, you have to admit it. On the other hand, if the lawsuit alleges that you live in Hennepin County and you live in Ramsey County, then you would deny the allegation.

Many times, you won't know the answer to an allegation. For example, many debt buyer lawsuits allege that the debt buyer purchased the account from the original creditor. Since you weren't a party to this transaction, you have no way to know if this allegation is true or not. So it's usually best to deny the allegation based on a lack of information. You only have to admit something that you know for a fact is true.

You should also watch out for multiple allegations in a paragraph. It's possible to admit one part of an allegation and to deny another. Read each allegation carefully and be sure to respond to all of its parts and sub-parts. When you've finished responding to every allegation, sign and date the answer.

Serve the answer by mail

Once you've completed the answer, make two copies. You serve one copy of the answer by mailing it to the debt collector's lawyer, or the debt collector itself if they don't have a lawyer. It's best fill out a sworn statement, called an affidavit of service, to prove when you served the answer. Here's a form affidavit from the Minnesota Court website.

Keep  the second copy of your answer for your records. Hang on to the original answer for filing with the court, but you don't have to file it until the debt collector does if you don't want to.

Knowing how to answer a collection lawsuit isn't enough

Now you know how to answer a collection lawsuit in Minnesota. But answering is just the first step. There will likely be discovery to answer and a motion to respond to. When you get these things from the collector, it's probably best to talk to a consumer lawyer right away. Responding to discovery  or a motion is complicated, there are strict deadlines, and it's possible to lose your case based on a technicality if you don't follow the court rules.

Fair Credit Reporting Act (FCRA): an overview

The Fair Credit Reporting Act is a federal law that regulates consumer credit reporting agencies, such as Experian, Equifax, and TransUnion. The FCRA also regulates those who provide information to the credit reporting agencies and those who use the information in a consumer credit report.

Studies have shown that nearly 80% of consumer credit reports contain errors of some kind. Examples of the type of errors found include accounts mistakenly listed as delinquent, loans listed twice, and inaccurate personal information. As the credit reporting industry has increased their use of automated procedures, additional problems have arisen. One common such problem is when information for one person is listed on another person's report (known as a merged or mixed file). A similar problem arises when someone's identity is stolen and accounts are opened fraudulently. These fraudulent accounts then show up on the identify theft victim's credit report and can be difficult to get removed.

There are a couple of reasons why inaccurate information ends up on a credit report. First, the information provided to the credit reporting agency may itself be inaccurate. Second, the CRA might assigned the reported information to the wrong consumer's file. Whatever the reason, these mistakes may lead to a person being denied for credit or receiving credit on less favorable terms. And increasingly, many employers are reviewing a job applicant's credit history when making employment decisions, which creates the possibility of a person being denied a job based on incorrect credit report information.

Unfortunately, the FCRA does not require credit reporting agencies to report accurate information. It merely requires them to use reasonable procedures to ensure the maximum possible accuracy. The Act is a bit toothless in this regard. Where the FCRA does have some teeth, however, is in its investigation requirement. Under the FCRA, if a person disputes information in her report to a CRA, the agency must investigate the dispute and correct the disputed information. Despite this clear-cut obligation, many consumer disputes do not result in the inaccurate information being removed from their report. One possible reason for this is that the CRA's customers are lenders, not consumers. For this reason, reporting agencies have an incentive to over-include items at the expense of accuracy.

Fortunately, the CRA's failure to conduct a reasonable investigation runs afoul of the FCRA and the person may bring a lawsuit to enforce the law and hold the CRA accountable. If the consumer proves that the CRA willfully failed to conduct a reasonable investigation of the dispute, she is entitled to $1,000 in statutory damages or her actual damages (such as loss of credit, higher interest rates, or even provable emotional distress). If, however, the credit reporting agency was merely negligent in failing to conduct a reasonable investigation of the dispute, the person is only entitled to her actual damages. If no actual damages are suffered, the consumer will lose the suit. In addition, the FCRA requires the credit reporting agency to pay successful consumer litigant's reasonable attorney fees and costs.

If you learn of a mistake on your credit report, your first step is to dispute it with the credit reporting agency. If the CRA fails to correct the error after receiving your dispute letter, you may consider talking to an attorney who handles FCRA cases. The attorney will be able to recommend next steps to get the mistake fixed and will be able to advise you if a FCRA lawsuit is an option.

How taxes can be wiped out in Chapter 13

Many of our Chapter 13 clients are struggling with tax debt. Tax debt can be tricky in Chapter 13 bankruptcy, but here are a few advantages and disadvantages you'll want to know about if you have significant tax debt.

  • Get your tax transcripts. To diagnose and fix your tax problems, you'll need to get account transcripts from the IRS for each year you owe a balance. These documents are a history of when your tax was due, when the return was filed, and when each charge was added to your account. You'll can get account transcripts on the IRS web site. If you have trouble getting these before you make your appointment, we can get transcripts for you if you give us power of attorney and pay a transcript fee.

  • Priority claims must be paid in full. A priority tax claim is an income tax debt that is recent (generally speaking, less than three years old, but the actual calculation is complex and you should speak to an attorney). For the most part, these are the same tax debts that can't be discharged in bankruptcy (with some exceptions), and so you'll want them to be paid off by your bankruptcy. In Chapter 13, a priority tax debt must be paid in full over the life of your Chapter 13 plan (three to five years). So if you owe $10,000 in priority tax debt, you can generally pay that debt in Chapter 13 in roughly $200 a month payments.

  • The benefit of priority tax claims in bankruptcy is that they must be paid before non-priority debt, like credit cards or medical bills. So if your disposable income is $250 a month and you owe $10,000 in priority tax debt, the first $200 of each payment will go to taxes, which need to be paid anyway, and only $50 will go to credit cards. The higher your priority debt, the less you'll pay in non-priority debt and the more you can discharge at the end of your bankruptcy case. One thing to remember is that even if you pay priority tax debt in your Chapter 13, you may have to pay some accrued interest (currently four percent) after your plan is over.

  • Tax liens must be paid off, but can be modified. If you have a tax lien filed against you, this can present some new problems. Tax debts with liens on them are classified as "secured debts" in bankruptcy. This means that, like priority debts, they need to be paid in full over the life of your plan. What makes secured debts tricky is that the IRS can classify a tax debt as secured even when that debt would otherwise be dischargeable in bankruptcy. This means that by getting a lien, the IRS is preventing you from discharging certain debts in a Chapter 13 case. The good news about tax liens is that they can be "crammed down" in bankruptcy. To determine the secured claim created by a tax lien, you count up all the assets you have. Your secured claim is the lesser of the dollar amount of the lien, or the value of all your property put together. Contact a bankruptcy attorney if you have tax liens, because there are sometimes other creative things we can do to save you money.

  • Some tax debts are neither priority nor secured, and these can be discharged in Chapter 13. Some older tax debts can be discharged in Chapter 13. This means that sometimes, when you come to see an attorney about your tax debts, we may advise that you wait to file, in order to age out certain debts and make them dischargeable. If they're dischargeable, this means they get thrown into the pot with all your credit cards, medical debts and personal loans, and they're paid out of your disposable income. Whatever can't be paid out of disposable income after all the other higher-priority debts are paid, are wiped out at the end of a successful Chapter 13.