Navigating the Evolving Landscape of Student Loan Discharge in Bankruptcy  

The student loan discharge in bankruptcy landscape has recently undergone a monumental transformation, ushering in renewed hope for student loan borrowers burdened by years of substantial student loan debt. Recent guidelines implemented by the Department of Justice have paved the way for a more accessible and streamlined process, offering potential relief to borrowers weighed down by the hardship of repaying student loans. In this comprehensive guide, we analyze the intricacies of these developments, their implications for borrowers facing undue hardship, and the steps you can take to navigate this evolving landscape.  

At Gale Angelo Johnson P.C. our attorneys can review your income, expenses, and student loan history to determine whether this is a program you may be able to take advantage of, CLICK HERE to schedule a No-Cost Consultation regarding your student loan debt.  

Understanding the Depth of the Student Loan Debt Crisis 

Before examining the recent changes, it’s vital to comprehend the sheer scale of the student loan debt crisis in America. Millions of student loan borrowers find themselves trapped under the crushing weight of substantial student loan debt, a burden that goes far beyond personal finances. This crisis has broad economic and social repercussions, impacting not just individuals’ financial stability but also delaying major life milestones like homeownership and starting families. Moreover, its ripple effect touches the broader economy, influencing financial markets and societal dynamics. 

The hardship students face has been further exacerbated by the Supreme Court decision striking down wide-scale student loan debt relief, leaving countless student loan borrowers wrestling with the consequences. However, a ray of hope emerged with the Department of Justice’s new protocols. 

The Historical Challenge of Discharging Student Loans in Bankruptcy 

Traditionally, student loans have been extremely difficult to discharge in bankruptcy. Unlike most other forms of debt, student loans were shielded by the stringent “Brunner test” that borrowers had to meet to even contemplate discharging student loans. It involved satisfying three arduous criteria: 

  1. Near-Poverty Standard: Borrowers had to prove an inability to maintain even a minimal standard of living for themselves if compelled to repay the student loans. This posed a major barrier, especially for borrowers already facing financial hardship. 
  2. Persistence of Hardship: Borrowers had to demonstrate their financial hardship was unlikely to improve over a significant portion of the student loan repayment term – essentially predicting enduring economic distress. 
  3. Good Faith Effort: The “Brunner test” necessitated borrowers showcase a consistent, genuine effort to repay their student loans by exploring options and demonstrating commitment. 

This stringent test often prevented discharge, particularly for borrowers eligible for income-driven repayment plans significantly reducing monthly payments. Moreover, proving eligibility through a costly, lengthy trial deterred many from pursuing discharge. 

The Department of Justice’s New Guidance on Student Loan Discharge 

In a pivotal move, the Department of Justice, in collaboration with the Department of Education, introduced new guidelines in November 2022 regarding the discharge of Federal Student Loans owned by the Education Department, including most Direct Loans. The guidelines standardize the process for determining a borrower’s eligibility for student loan discharge. Key aspects include: 

  • Scope: The guidance applies only to Federal Direct Loans. Private student loans remain subject to previous bankruptcy discharge standards. 
  • Access to Information: After an adversary proceeding is filed, the Department provides the debtor or attorney with information on student loans, repayment history, and other critical details needed to justify discharge. 
  • The Attestation Form: Borrowers submit a straightforward “Attestation Form” outlining income, expenses, and history rather than undergoing costly discovery. The Department (not the court) reviews the form to determine if they will agree to discharge all or some of the loans. 
  • IRS Standards: The form uses IRS standards to establish a baseline for most expenses based on household size, allowing borrowers to claim actual expenses above these amounts. Borrowers can also factor in reasonably certain future expenses like childcare or education costs to demonstrate meeting “minimal standard of living” requirements. 
  • Standard Repayment Plan: The Department now considers payment amounts under a standard 10-year repayment plan rather than income-driven plans that may have reduced payments substantially. This benefits low-income households. 
  • Presumed Inability to Pay: The Department presumes borrowers over 65, those with disabilities/chronic health issues, individuals unemployed for most of the past 10 years, those without the degree the loans were for, or borrowers in deferment/forbearance for over 10 years will be unable to make future payments. 
  • Good Faith Assessment: Good faith is determined holistically based on factors like payment history, deferment/forbearance applications, income-driven repayment plan applications, and consolidation requests. No single factor has decisive weight. 

Why These Changes Matter for Borrowers Facing Undue Hardship 

The significance of these changes for borrowers facing undue hardship repaying student loans cannot be overstated: 

  1. Inconsistent Outcomes: The subjective application of the “Brunner test” previously yielded unpredictable outcomes across courts, creating uncertainty and deterring borrowers. The guidance aims to bring consistency and predictability. 
  2. High Legal Costs: Litigating discharge cases was frequently unaffordable, preventing eligible borrowers from obtaining relief. The revised process seeks to reduce legal costs and improve accessibility. 
  3. Overcoming Legislative Hurdles: Although legislative reforms have stalled, these guidelines enable immediate practical relief without new laws. 
  4. Balancing Interests: Differing court views on balancing relief for eligible borrowers versus upholding loan obligations created uncertainty that the guidance aims to address. 

Evaluating Good Faith Efforts to Repay Student Loans 

A key aspect of the new guidance is the holistic approach to evaluating a borrower’s good faith efforts to repay their Federal Direct Loans before filing for bankruptcy discharge. Some factors considered include: 

  • The borrower’s overall payment history on their student loans and periods of payment, deferment, and default. This provides insight into their commitment to repaying the debt. 
  • Any attempts to enroll in income-driven repayment plans that adapt payments to income level to demonstrate a desire to repay what is affordable. 
  • Seeking loan consolidations which can provide more favorable repayment terms by extending the loan term and lowering monthly payments. 
  • Whether the borrower diligently requested necessary deferments or forbearances during periods of financial hardship to temporarily postpone payments and avoid default. 
  • Overall duration of student loan repayment and periods when payments were made before the borrower ultimately had to file for bankruptcy due to prolonged inability to repay the debt. 

While no single factor determines good faith, collectively they allow the Department to evaluate the borrower’s genuine efforts to honor their student loan obligations to the extent possible before seeking discharge. 

Discharge Eligibility for Older Borrowers Facing Financial Hardship 

A key provision in the guidance creates a presumption of discharge eligibility for Federal Direct Loan borrowers over age 65 facing financial hardship. This aids vulnerable older borrowers, many of whom struggle with a fixed income and little opportunity to significantly improve their economic circumstances. The presumed inability to make future payments provides a path to discharge student loans in bankruptcy without having to meet rigid income requirements. 

However, older borrowers must still demonstrate good faith efforts to repay the loans when they were able to do so. This balances compassion for borrowers facing hardship with accountability. Seeking guidance from attorneys experienced in student loan bankruptcy discharge for seniors can be highly beneficial. 

Considering Forgiveness and Repayment Alternatives First 

Before pursuing student loan discharge in bankruptcy, borrowers should explore alternatives like income-driven repayment plans or government forgiveness programs. Options like the Income Contingent Repayment (ICR) plan base payments on a percentage of disposable income and extend repayment up to 25 years, after which any remaining loan balance is forgiven. 

Public Service Loan Forgiveness (PSLF) forgives loan balances after 10 years of payments while working full-time for an eligible employer like a nonprofit or the government. Forgiveness programs for teachers, nurses, and other fields may also be available. These alternatives could provide more favorable terms or guaranteed discharge without the impact bankruptcy can have on credit scores and borrowing ability. 

Seeking Legal Guidance on Student Loan Discharge from a Qualified Bankruptcy Attorney 

The evolving student loan discharge landscape still presents legal complexities and uncertainties. Outcomes can vary across courts and cases. Borrowers should seek guidance from qualified bankruptcy attorneys to assess their specific situation comprehensively. Attorneys experienced in student loan bankruptcy discharge cases can: 

  • Advise whether discharge is the most prudent option or if income-driven repayment or forgiveness programs may be preferable. 
  • Review a borrower’s budget, expenses, and income to build the strongest possible case for meeting the “undue hardship” standard. 
  • Assist in documenting good faith efforts to repay student loans prior to bankruptcy filing. 
  • Represent the borrower throughout the bankruptcy process and required legal proceedings. 
  • Help secure the maximum eligible discharge of student loan debt while protecting the borrower’s rights and interests. 

While challenges remain, the revised discharge guidelines provide new hope for student loan borrowers trapped in long-term hardship. With careful consideration and legal guidance, bankruptcy can now offer a path forward.  

If you, or someone you know, needs legal guidance regarding student loan debt and would like to set up a No-Cost review, call us at (916) 290-7778.  


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