Matt Taibbi wrote a terrific article for Rolling Stone about the student loan crisis. Titled “The Great College Loan Swindle” Taibbi’s piece told the story of two distressed student-loan borrowers: Scott Nailor and Veronica Martish.
Nailor borrowed $35,000 to get a college degree in education. Unfortunately, his first teaching job only paid $18,000; and he fell behind on his payments. Ultimately, he filed for bankruptcy and defaulted on his student loans. Apparently, he did not try to expunge his student-loans in bankruptcy, because he still paying on them. Due to penalties and accrued interest, Nailor estimates he now owes $100,000.
Veronica Martish, a 68-year-old military veteran, borrowed $8,000 to take courses at Quinebaug Valley Community College; and her investment in higher education did not pay off any better than Nailor’s. She fell behind on her student-loan payments and her debt swelled to $27,000 due to fees and interest. Martish eventually entered a loan “rehabilitation” program, but her payments hardly put a dent in the loan principle. She told Taibbi that she’s paid $63,000 on her student loans and is nowhere near paying them off.
Taibbi’s article about the student-loan crisis is excellent, and he choose two people–Nailor and Martish–who could be the poster children for this catastrophe. Unfortunately, Taibbi’s article did not mention the one avenue of relief that is probably open to both Martish and Nailor–bankruptcy.
It is true that student loans are very hard to discharge in bankruptcy, but it is not impossible. Debtors must show that their student loans constitute an “undue hardship,” and the courts have traditionally defined undue hardship quite harshly. Most federal courts have adopted the Brunner test for determining whether undue hardship exists.
The Brunner test ask three questions:
1)Can the debtor maintain a minimal standard of living for himself or herself and dependents and pay off the student loans?
2) Are the debtor’s financial circumstances likely to change in the reasonably foreseeable future?
3) Did the debtor handle his or her student loans in good faith?
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In the past, the bankruptcy courts applied the Brunner test quite harshly, and many worthy debtors were denied relief. In fact, a myth has developed that it is impossible for debtors to discharge their student loans in bankruptcy.
In recent years, however, more and more student debtors have gone into the bankruptcy courts and gotten their loans discharged in bankruptcy or at least partially discharged. In fact, several debtors have gotten bankruptcy relief from their student loans even though their circumstances were less dire than either Nailor’s or Martish’s.
Indeed, I feel confident that Nailor and Martish could wipe out their student loans in bankruptcy if only they had competent legal counsel to guide them through the process.
After all, what bankruptcy judge would deny relief to Veronica Martish, a 68-year-old military veteran who borrowed $8,000 and has paid more than $60,000 toward paying off the debt?
What judge would deny relief to Scott Nailor who borrowed $35,000, now owes $100,000 and is so depressed by his debt that he contemplated suicide.
Nailor would be interested to know that several bankruptcy courts have considered the psychological stress of long-term indebtedness when applying the undue hardship rule. And Martish would be interested in knowing that the Ninth Circuit’s Bankruptcy Appellate Panel discharged the debt of Janet Roth, a woman about the same age as Martish and who probably made fewer payments on her loans than Martish did.
I feel sure most bankruptcy judges would be quite sympathetic to both Martish and Nailor. Someone needs to tell these distressed debtors that they should file bankruptcy and attempt to get their student loans discharged in bankruptcy through an adversary proceeding. – Source
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