Sunday, May 9, 2010

Student Loan Debtors Can Seek Student Loan Discharge Determination Prior to Completion of Chapter 13 Plan Payments.

Cassim v. Educational Credit Management Corporation, 594 F.3d 432 (6th Cir. 2010). A chapter 13 debtor filed an adversary complaint seeking a determination that because of debtor’s disability debtor was entitled to an “undue hardship” discharge of debtor’s student loans. Debtor asserted that debtor’s student loan debts should be discharged when the bankruptcy court enters the general discharge order following completion of the chapter 13 repayment plan.

The student loan creditor sought to dismiss the adversary complaint on constitutional ripeness grounds. Creditor argued that the student loan debtor would have to wait for the entry of the chapter 13 discharge order before the debtor could file the adversary proceeding. Creditor believed a ruling prior to discharge was simply premature.

The Sixth Circuit framed the issue as whether a bankruptcy court ruling on the undue hardship discharge issue was constitutionally ripe for adjudication prior to the entry of a chapter 13 general discharge that would be entered years later, if ever, and only at the conclusion of the chapter 13 repayment plan. The Circuit Courts are split on this issue and are without Supreme Court guidance.

The Sixth Circuit found that the question of whether debtor’s student loan debt is dischargeable was constitutionally ripe for review by the bankruptcy court despite the fact that debtor had not yet received a chapter 13 general discharge under Section 1328. The court noted that debtor sought to discharge her student loan obligations under Section 523(a)(8) and creditor sought to prevent debtor from obtaining such relief. If debtor prevailed, the student loan creditor stood to lose some or all of its claim. The court therefore believed that the dispute involved a specifically-defined debt and a statutorily-based claim for relief that debtor was entitled to pursue. Consequently, the court found that the collision of these opposing interests produced a definite and substantial controversy between the parties that was currently ripe for adjudication, and not merely an abstract disagreement.

Your Bankruptcy Advisor
Blog By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm Click for Bankruptcy Lawyer Job Opportunities. You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at Discharging Student Loans to learn about how the bankruptcy laws can help you. Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys. For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer. I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.

Saturday, May 8, 2010

Student Loan Discharge Denied Because Circumstances Causing Undue Hardship Occurred After Discharge Was Entered

Student loan dischargeability is a hot issue.  A court recently addressed the issue of whether the circumstances causing "undue hardship" must occur prior to the underlying chapter 7 discharge.

In Zygarewicz v. Educational Credit Management, 423 B.R. 909 (Bankr. E.D. Cal. 2010), a chapter 7 debtor filed bankruptcy and received a discharge of all dischargeable debts. However, one of the debts not discharged was debtor’s student loan debt. The student loan debt was not discharged because debtor could not demonstrate that repayment of the student loans would cause an undue hardship.

Two years later debtor’s situation changed for the worst. Debtor suffered a severe injury in a vehicle accident. Debtor then believed debtor would be able to prove that repayment of the student loans would cause an undue hardship. Debtor reopened the bankruptcy case and filed an adversary proceeding against the student loan creditor seeking a ruling that the student loan debt is discharged.

The student loan creditor objected to the discharge because the event causing debtor’s hardship arose years AFTER the discharge order had been entered. The bankruptcy court agreed and entered judgment in favor of the creditor. The court concluded that the circumstances causing a chapter 7 debtor’s financial hardship must arise PRIOR to the entry of the discharge order. Here, the court believed that debtor’s circumstances could not form the basis of a determination that repayment of the student loan would be an undue hardship since the circumstances causing debtor’s hardship (the vehicle accident) arose after the entry of the discharge.

Debtor should consider refiling a new bankruptcy case and attacking the student loan debt within the new bankruptcy case. Contact me if you have questions.

Bob Schaller


Your Bankruptcy Advisor Blog By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm

Click for Bankruptcy Lawyer Job Opportunities. You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at Discharging Student Loans to learn about how the bankruptcy laws can help you. Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys. For information about Chapter 7 bankruptcy Click Here

For information about Chapter 13 bankruptcy Click Here NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer. I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.

Thursday, January 21, 2010

Student Loan Debtor Granted Trial

In the case of In re Coco, 335 Fed. Appx. 224 (3rd Cir. 2009), a chapter 7 debtor brought an adversary proceeding against the student loan creditor, seeking determination that her student loan debt was not excepted from discharge.
The bankruptcy court granted summary judgment against the student loan debtor, finding there were no material issues of fact and that the student loan creditor was entitled to judgment as a matter of law. The bankruptcy court held that the debtor failed to establish undue hardship and was thus not entitled to a discharge of the student loan debt.
The student loan debtor appealed the bankruptcy court’s decision. The court of appeals held that factual issues as to whether debtor made good-faith efforts to repay her student loans precluded summary judgment for creditor. The bankruptcy court’s judgment was vacated.
The student loan debtor will get her trial to prove that she made good-faith efforts to repay her student loan.
 
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.

You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/student_loan_discharge.htmlto learn about how the bankruptcy laws can help you.

Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.

For information about Chapter 7 bankruptcy Click Here

For information about Chapter 13 bankruptcy Click Here

NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.

I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.

Friday, January 1, 2010

Prepetition Student Loan Debt Not Discharged After Being Consolidated Postpetition

In Barrett v. Great Lakes, 417 B.R. 471 (Bankr. N.D.OH 2009), debtor filed chapter 7 bankruptcy in 2005. The next year debtor brought an adversary proceeding seeking an order determining the dischargeability of debtor’s student loans on “undue hardship” grounds. The original student loan creditor moved to dismiss the adversary complaint alleging that debtor’s prepetition student loan debt was paid postpetition when debtor consolidated various prepetition loans into a new loan made postpetition. The new student loan creditor who funded the consolidated loan supported the position of the original student loan creditor and maintained that the consolidation of debtor’s student loan debt created a new postpetition obligation which could not have been discharged by the underlying chapter 7 discharge.

The facts in this case were not in dispute. After receiving the chapter 7 discharge, debtor entered into a consolidated loan agreement with a new student loan creditor. The consolidation agreement was made pursuant to the Federal Family Education Loan Program, known by its acronym FFELP. Under this agreement, debtor was able to consolidate a number of loans debtor incurred prepetition to finance debtor’s higher education.

The court granted the creditor’s motion to dismiss after holding that the consolidated debt incurred postpetition could not be discharged via the adversary proceeding. The court believed that the consolidated debt arose after the commencement of the debtor’s chapter 7 case and therefore could not be subject to discharge. The court reaffirmed the well-settled fact that a debt must have been in existence prior to the commencement of the bankruptcy case in order for the debt to be encompassed within the scope of a court’s discharge order. In the instant case, the court noted that the consolidated loan was made pursuant to the Federal Family Education Loan Program as governed by 20 U.S.C. §1078-3. Under that statute a consolidation loan is considered a “new loan” and the statute provided that liability upon the initial loan is discharged upon consolidation into a new loan. Therefore, the court found that where student loans are consolidated postpetition, the consolidated debt is deemed to have arisen after the commencement of the bankruptcy case and thus excluded from discharge.


Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.

You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/student_loan_discharge.htmlto learn about how the bankruptcy laws can help you.

Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.

For information about Chapter 7 bankruptcy Click Here

For information about Chapter 13 bankruptcy Click Here

NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.

I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.

Student Loan Debt of $322,000 Discharged Despite $90,000 Annual Income

In the case of Scott v. US Department of Education, 417 B.R. 623 (Bankr. W.D.Wash. 2009), chapter 7 debtors filed an adversary proceeding seeking an order determining that debtors were entitled to “undue hardship” discharge of their more than $322,000 in student loan debt. After an evidentiary hearing, the court found that the repayment of the student loan debts would indeed cause debtors an “undue hardship” and thus debtors were entitled to discharge the student loan debts.


Debtors were married, less than 34 years of age, and were parents to two healthy young children. Both debtors worked and earned a combined annual income in excess of $90,000. Debtors testified that both had consistent work histories since completing their education. Debtors also testified that they do not have opportunities to increase their income in the future.

Debtors’ monthly expenses exceeded their monthly income by approximately $1,000 monthly. Debtors’ rent payment was a modest amount and the day care expenses for both children were expensive. Debtors’ only excessive debt related to an approximately $500 vehicle payment. Other than that, debtors had lived frugally and had made reasonable choices about their expenses.

Debtors’ loan repayment history favored debtors’ position. Debtors made as many as 72 payments on one of the loans and previously received multiple student loan extensions, deferments, and forbearances during their efforts to repay the student loan debts.

The Scott court adopted the three-part dischargeability test set forth in In re Brunner, 46 B.R. 752 (S.D.N.Y. 1985), to determine whether excepting the student loan debts from discharge would constitute an undue hardship on debtors. The Scott court found that debtors proved that they could not, based on their current income and expenses, maintain a “minimal” standard of living for themselves and their dependents if forced to repay the loans. Next, the court found that debtors demonstrated their inability to pay the student loans in the present and a likely inability to pay the student loans in the future. Finally, the court found that debtors had made good faith efforts to repay the student loans after considering the number of student loan payments made, the dollar amount of student loan payments made, and debtors’ efforts to receive multiple student loan extensions, deferments, and forbearances.


Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.

You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/student_loan_discharge.htmlto learn about how the bankruptcy laws can help you.

Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.

For information about Chapter 7 bankruptcy Click Here

For information about Chapter 13 bankruptcy Click Here

NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.

I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.