Student Loans - Bankruptcy

- If I file for Bankruptcy will my student loans get discharged? -

Are student loans able to be discharged? In short, probably not. Student loan debts are nondischargeable in Chapter 7 Bankruptcy cases unless paying the debt would cause the debtor "undue hardship".  This basic rule also applies to Chapter 13 Bankruptcy cases.

Discharge of student loans received popularity in the 1970's. Many individuals would file for bankruptcy shortly after completing their expensive education. The goal was to discharge these student loans before they began earning money.

The wording of the exception of a "hardship discharge" and what is considered a student loan has recently been broadened so that most student loans made by nonprofit groups or the government are now considered student loans. This only applies to the actual student and not a co-signor. So a parent signing for one of their children could not have this debt discharged. In addition, this exception does not include debts to an educational institution for tuition. If the loan is nondischargeable then the petition on the loan is also not going to be discharged.

So we turn to "undue hardship".  Most published court opinions agree that "undue hardship" means more than garden variety hardships that come with the costs of future payments. Several circuit courts of appeals have developed a three-prong test.

In summation, the debtor cannot maintain a minimal standard of living and his dependents are left with the debt, some additional circumstances in regard to the standard of living would extend over the life of the repayment of the loan, and the debtor has tried to the best of their ability to pay off the loan according to the plan.

The ideal debtor who will successfully discharge student loans are the low-income debtors. The debtor has the burden of proving their hardships. Any reason that makes this loan impossible for the debtor should be made known to your attorney. For example, unemployable debtors, underprivileged debtors, a total lack of available jobs suited for the debtor's skills, certain disabilities, etc. If any of these situations exist, your attorney will strive to prove any extenuating circumstances to the court to get these student loans discharged.

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- Student Loan Repayment History -

One of the key legal tests for discharging student loan debt through bankruptcy is the student's track record in paying off their student loans. In most cases, a student wanting to file for bankruptcy needs to show at least a five to seven year history of making on-time student loan payments.

I suggest you talk to a lawyer with a long successful record of filing student loan bankruptcy cases. A lawyer without experience in this area will not give you the edge you need in court.

- Student Loans Can't Be Swept Away Through Bankruptcy -

Bankruptcy is in the news these days, as Congress has finally overhauled the Federal bankruptcy law after years of talking about it. The credit card companies, rightly or wrongly, have been pressuring members of Congress to tighten the bankruptcy statutes, saying that too many people were willfully spending money they couldn't repay with the intention of avoiding paying the money back by filing for bankruptcy. That will soon change, and those with student loans may pay a heavy price.

Most everyone knows that consumers with problem debt who are unable to pay their debts may file for bankruptcy under Chapter 7 of the Federal bankruptcy code. This allows for the court to basically wipe away all of the debtor's bills and allows them to start over. It's not entirely free; the bankruptcy filing stays on the debtor's credit report for the next ten years and may affect their ability to buy a home, borrow money or obtain employment. What many people fail to realize is that while installment loan debt or credit card debt can be wiped out through filing for bankruptcy, most student loans cannot. In fact, thanks to legislation enacted several years ago, most any loans acquired for education, including those issued by for-profit agencies, may not be eliminated through filing for bankruptcy.

What this means for those with student loans is that they will need to be repaid. If bankruptcy is inevitable, those with outstanding student loans should contact their lenders and see if they can negotiate a repayment plan. Those with Federally funded student loans should contact their lender soon, as rates for student loans will probably go up. Now would be a good time to consolidate student loans, as the rates can be locked in for the long term. If these options are not viable, then holders of student loans should simply be aware that their lenders and their lenders' loan collectors will be keeping in touch with them for the foreseeable future. Those with student loans and other financial problems should also be aware that Federal bankruptcy law changes in 2006 make it harder to file for bankruptcy. If you have problem debt, now would be a good time to consider meeting with a credit counselor.

About the Author

©Copyright 2005 by Retro Marketing. Charles Essmeier is the owner of Retro Marketing, a firm devoted to informational Websites, including End-Your-Debt.com, a site devoted to debt consolidation and credit counseling, and StructuredSettlementHelp.com, a site devoted to information regarding structured settlements.

Bankruptcy is in the news these days, as Congress has finally overhauled the Federal bankruptcy law after years of talking about it. The credit card companies, rightly or wrongly, have been pressuring members of Congress to tighten the bankruptcy statutes, saying that too many people were willfully spending money they couldn't repay with the intention of avoiding paying the money back by filing for bankruptcy. That will soon change, and those with student loans may pay a heavy price.