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.

Who is National Collegiate Student Loan Trust?

Over the last few years, National Collegiate Student Loan Trust has brought hundreds of debt collection lawsuits against Minnesota citizens. If you've been sued by National Collegiate Student Loan Trust, here's what you need to know.

Who is National Collegiate Student Loan Trust?

NCSLT doesn't lend money. It's merely a series of trusts that contain a pool of hundreds of private student loans. The loans have been packaged together and sold as investment vehicles. If this sounds similar to the way mortgages are handled, it should.

There are several National Collegiate Student Loan Trusts. They are typically named with the year the loan was originated. For example, most of the cases I'm seeing lately involve National Collegiate Student Loan Trust 2007.  I've also seen loans held by National Collegiate Student Loan Trust 2005 and 2006.

How do the student loans get into these trusts?

First, a bank issues a student loan to help someone pay for college. The bank then sells the loan to an entity called National Collegiate Student Loan Funding. This entity is merely a holding company that deposits all of the student loans into the individual trusts. Once the loans are packaged into trusts, bonds are sold to investors. The investors receive money based on the amount of money collected from student loan borrowers.

The trusts themselves don't actually service the loans and collect the payments. They hire someone, called a servicer, to do that for them. In most of the cases I've seen, the servicer is U.S. Bank.

Another interesting element of these trusts is that the loans are partially guaranteed. This means that the investors basically have an insurance policy when student loan borrowers aren't able to make payments. If the borrower defaults, the guarantor steps in and covers the payment.

What should I do if I'm sued by National Collegiate Student Loan Trust?

In my experience, it's difficult to negotiate a reasonable payment plan with National Collegiate Student Loan Trust. They demand that the borrower hand over a bunch of sensitive financial documents, such as tax returns and pay stubs before they'll even consider a settlement offer. And the offers that they make are rarely affordable. To avoid this frustrating experience, I've been advising people to fight back against the lawsuit by answering it and challenging NCSLT's proof in court.

National Collegiate Student Loan Trust can usually prove that they acquired a pool of loans from the originating bank. But, in my experience, they rarely have sufficient proof that they own your loan. There are other ways to challenge the sufficiency of their evidence and, depending on the specific facts involved, you may have other defenses as well. We've been successful getting NCSLT cases thrown out of court and have negotiated very favorable payment plans by pushing back.

Can I discharge student loan debt in bankruptcy?

This post describes how to deal with student loan debt in bankruptcy.

One of the only types of debt that can't be discharged in a bankruptcy is a student loan, and even then, there are exceptions. But student loan debt in bankruptcy can be discharged in relatively rare situations of "undue hardship"--where the debtor cannot pay back the student loan and probably won't be able to pay it anytime in the future. Under Minnesota (8th Circuit) caselaw, courts consider: (1) The filer's past, present and future reasonably reliable financial resources; (2) a calculation of the reasonable living expenses of the debtor and his/her dependents; and (3) any other relevant facts surrounding the bankruptcy case.

1. How to discharge student loan debt in bankruptcy. To attempt to discharge student loans in bankruptcy, the debtor can file an adversary proceeding, which is a lawsuit-within-a-bankruptcy, against the student loan company. Starting an adversary proceeding is no biggie--there's no court filing fee, and you just file a summons and complaint and send it to the creditor. After that it's pretty much like any other lawsuit.

2. Undue hardship is based on your ability to earn money to pay off your loans.

• - Determining undue hardship has a lot to do with your past and present earning power. The court will look at your job qualifications and earning history. If you have had a long history of low earnings, that might play in favor of discharge.

• - Your ability to earn money in the future is even more important. The court may consider your future job prospects, especially as compared to the size of your loan. If there's no foreseeable way to make a dent in the loan, this will play in favor of discharge.

• - Age may also be a factor. While a fresh-faced 22-year old has an entire life of indentured servitude ahead of him to pay his loans, a 65-year old may be considering retirement and won't have the same long-term earning potential.

• - Disability also plays into the determination. Debtors with disabilities may have less earning potential in some cases. This is evaluated along a spectrum--a permanent and total disability that renders someone completely unable to work may be an easier discharge case, while a partial disability that reduces earning power will probably not be the basis for dischargeability on its own.

3. If there's no money in your budget, there's no money to pay off student loans. The court will look at your monthly income and reasonably monthly expenses, and determine if there's any room for repayment of student loans. If your monthly budget is in the red, this will play in your favor.

The court may also look at your eligibility for various loan repayment programs, such as Income Based Repayment (both for federal loans only). If you can afford to make a reduced payment, that might be a factor against discharge. But even if you can afford a reduced payment, it's not a discharge dealbreaker where the loan will continue to accumulate interest and grow even though you're making payments.

If you're struggling with student loan payments and you think some of the above criteria may apply to you, give us a call.