Student Loan Bankruptcy Discharge

Kinney v. National Collegiate Master Student Loan Trust: Bankruptcy Judge Thad Collins discharges student loans that a man cosigned for his niece

Written by Richard Fossey

Anthony Kinney, a 52-year-old working guy with a modest job in the plastic industry, co-signed three student loans for his niece. His niece defaulted, and National Collegiate Master Student Trust I (probably an investment fund) began efforts to collect on two of the loans from Kinney.

Kinney filed for bankruptcy to discharge the loans, and he made two arguments. First, he argued that the Bankruptcy Code’s “undue hardship” rule didn’t apply to him because he only cosigned the loans and received no benefit from them. Second, Kinney maintained that paying back his niece’s loans would be an undue hardship.

Bankruptcy Judge Thad Collins declined to rule on Kinney’s first argument, but he agreed with Kinney that repaying the loans would be an undue hardship. In ruling for Kinney, Judge Collins interpreted “undue hardship” under the “totality of circumstances” standard, which is the standard used in the Eighth Circuit.

Judge Collins noted that Kinney made about $37,000 a year and was never likely to make more than $40,000. Moreover, Kinney had no financial resources other than his job, and his 401K retirement account only contained about $3,000.

Judge Collins also examined Kinney’s living expenses, which he found to be reasonable and necessary. Kinney’s resources were adequate to maintain a modest living standard, the Judge determined, but not enough to maintain a minimal standard of living if forced to pay his niece’s student loans, which were accruing interest at more than 12 percent. In addition, Kinney was living with an aunt and uncle while he went through bankruptcy, but this was a short-term solution to his housing needs. Kinney’s future housing costs were definitely headed upward.

Judge Collins concluded his brief opinion by observing that Kinney was “in a very precarious financial situation,” with no savings and minimal retirement funds. Having found that Kinney had no capacity to make loan payments, the Judge ruled that “requiring [Kinney] to repay either of the two loans . . . would result in undue hardship.”

Judge Collins ended his opinion with a brief comment about the fact that Kinney was a cosigner of his niece’s student loans. Although Kinney’s cosigner status was legally insignificant to the Judge’s undue hardship determination, Judge Collins found it relevant that Kinney received no educational benefit from his niece’s student loans. In Judge Collins’ opinion, the lack of educational benefit weighed against Kinney’s creditor.

Why is the Kinney case important? Two reasons:

First, the case illustrates the terrible consequences that people can face when they cosign a relative’s student loans. The original lender probably didn’t care whether Kinney’s niece could pay back her loans because it knew that Kinney was also on the hook.

Second, Judge Collin’s succinct decision went to the heart of the matter concerning student-loan debt. It was quite clear that Kinney would never be able to pay back his niece’s student loans, which were accruing interest at 12 percent and which had nearly doubled in size since she originally borrowed the money.

Isn’t the ability to repay a student loan the only reasonable consideration when an overwhelmed student-loan debtor files for bankruptcy? And when it is clear that a college-loan borrower cannot repay his or her student loans, why not give that borrower the fresh start the bankruptcy courts were established to provide?

Thank God for bankruptcy judges like Judge Thad Collins. We need more judges like him. – Source

About the author

Richard Fossey

Richard Fossey is a professor at the University of Louisiana in Lafayette, Louisiana. He received his law degree from the University of Texas and his doctorate from Harvard Graduate School of Education. He is editor of Catholic Southwest, A Journal of History and Culture.

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