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.