Can You Discharge Student Loans in California?
Bankruptcy courts make it difficult, but some student loan holders will qualifyBy Doug Mentes, Esq. | Last updated on January 10, 2023
Use these links to jump to different sections:
- Student Loans Can Be Discharged Through Bankruptcy
- Student Loan Holder Must Prove Undue Hardship if Forced To Pay Student Loans
Student Loans Can Be Discharged Through BankruptcyIt’s possible to discharge a student loan under the bankruptcy code, but bankruptcy filers must clear an extra hurdle to receive that discharge. The law requires the bankruptcy court hold a hearing or trial on the issue of discharge or cancellation of the student loans alone. That hearing is called an “adversary proceeding,” which takes place within the bankruptcy case. The bankruptcy filer will have the burden to prove that excluding the educational loans from their bankruptcy discharge will cause them “undue hardship.” It is often necessary that the bankruptcy filer hire an expert witness to demonstrate the undue hardship the student loan repayment will cause the filer—a significant expense for someone who is struggling financially.
Student Loan Holder Must Prove Undue Hardship if Forced To Pay Student LoansUndue hardship is proven by the bankruptcy filer (or debtor) meeting three criteria—those three criteria are referred to by the bankruptcy court as the “Brunner test.”
- Continuing the student loan payments must cause the borrower to be unable to sustain a minimum standard of living
- The borrower’s financial situation or eligibility must be unlikely to change in the future
- The borrower must have made a good-faith effort towards the repayment plan of his or her federal student loans
What Is a Minimum Standard of Living?The debtor will submit schedules with the bankruptcy petition that show their income and reasonable expenses. A minimum standard of living includes expenses for shelter, utilities, food and personal hygiene, clothing, health insurance or ability to pay medical and dental expenses—and even some recreation. The essence of the minimum standard of living requirement is that a debtor, after providing for his or her basic needs, may not allocate any of his or her financial resources to the detriment of student loan creditor. If after paying the basics a debtor has little to nothing left over, that should meet this first criteria.
Situation Unlikely To Change for BorrowerTo satisfy the second criteria, the debtor’s financial situation must be indicative of a certainty of hopelessness, not merely a present inability to pay bills. The circumstances often include one or more of the following:
- lack of job skills
- existence of dependents
Debtor Must Make Good Faith Effort To Pay LoansTo determine whether a debtor has made a good faith effort to pay their student loans, the bankruptcy court will look at payments made, or attempts to work with lender on alternate payment plans. If the debtor can demonstrate an honest, sincere intention to pay their student loans that should satisfy this third requirement of the Brunner test. If a student loan holder is considering filing for bankruptcy, that borrower should consider including the student debt within their bankruptcy filing. But because of the complexity of the student loan discharge process, those borrowers should first consult an experienced southern California bankruptcy attorney to determine their best chance of successfully obtaining that discharge. For more information on this area of law, see our bankruptcy overview.
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