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Discharge Student Loan Debt in an Adversary Proceeding

Many students enter into college or university without truly understanding the cost of higher education. Typically, students sign for student loans to fray the cost of tuition, books and living expenses not to be thought about again until after graduation. Borrowers can rack up over $300,000 in loans before realizing that they may never earn enough money to pay back the loans.

Unlike most unsecured consumer debt, student loan debt is very difficult to discharge (wipe out) by filing for bankruptcy. Student loans are one of a few debts that can survive a bankruptcy filing. Depending on your financial circumstances, you may qualify for discharge or negotiate a settlement with lenders in the bankruptcy process.

The process of discharging student loans in bankruptcy

In order to discharge student loan debt the Bankruptcy Rules require that you initiate an adversary proceeding. During this trial-like process, you must persuade the judge that you are suffering undue hardship by making payments on your student loan debt. You must present supporting evidence to prove undue hardship. The standard requires you to show that:

 

  1. Based on your current income and expenses you cannot maintain the minimal standard of living and make loan payments
  2. Based on your projected income in the future, you will be unlikely able to make loan payments using your estimated future income 
  3. Despite good faith efforts you were unable to repay the loan

Since the adversarial proceeding is a separate lawsuit from your bankruptcy petition it can become complex and time consuming. A bankruptcy judge reviews the evidence at an adversarial proceeding for discharging student loans with stringency. Therefore, you should consult with a skilled Los Angeles bankruptcy attorney. The Bankruptcy Court has authority to grant a partial discharge of your student loan. Another benefit to initiating an adversary proceeding is that it can put you in a good position to negotiate a settlement with student loan lenders.

If you are drowning in student loan the attorneys at the Law Offices of Michael Jay Berger can help pull you out. Our firm has provided sound legal guidance and support to our clients for more than 30 years.

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