“Student loans can’t be discharged in bankruptcy,” has been repeated so often that it’s practically considered gospel. But what if that “fact” is not completely correct – and may be stopping consumers who could benefit from bankruptcy from pursuing it?
It’s not just consumers and the media that may be misled. “A wide number of bankruptcy attorneys are convinced that student loans can’t be discharged under bankruptcy and never even try to include them or pursue an adversary hearing to go for the discharge,” writes Steve Rhode who has been writing about discharging debt in bankruptcy at his website GetOutOfDebt.org .
Most Don’t Even Ask
Rhode points to research by Jason Iuliano, who delved into this issue as a Ph.D. student at Princeton University. (He also holds a law degree from Harvard.) Iuliano found that nearly 40% of student borrowers who seek a discharge get one, but that many borrowers don’t bother to ask. In fact, less than 1% of those who file for bankruptcy attempt to include these loans. “The real failing of the student loan discharge process is lack of participation by those in need,” he wrote in his research paper, An Empirical Assessment of Student Loan Discharges and the Undue Hardship Standard.
Yes, it can be difficult to wipe out student loans by filing for bankruptcy, but it’s not always impossible, and some consumers who might be able to eliminate student loan debt don’t even try. That can leave a borrower saddled with debt for decades, which not only hurts their credit rating but also leaves them in a situation where their balances just continue to grow.
To get rid of student loans through bankruptcy, debtors must file something called (ominmously) an “adversary proceeding” in which they have to prove that paying back their student loans would constitute an “undue hardship” on the debtor and the debtor’s dependents. But because Congress didn’t spell out what constituted an undue hardship, that job has fallen to the courts to interpret. And not surprisingly, various judges have held various positions on the issue.
The Major Factors
Looking at a variety of factors, Iuliano found only three that he said were “statistically significant across a wide variety of models”:
- whether the debtor has a medical hardship;
- whether the debtor is employed;
- and the debtor’s income the year before filing bankruptcy.
Those who had a medical hardship were more likely to be successful in obtaining a total or partial discharge, and it did not appear that there was a significant difference between mental illness, physical disability or chronic illness. As far as income and employment are concerned, there “is a clear and substantial dropoff in income as one proceeds from no discharge ($28,272) to partial discharge ($20,072) and, finally, to full discharge ($16,394),” he wrote.
Check Credit Before Paying Down Student Loans Get your free Credit Score & personalized Action Plan. See where you stand & learn ways to better manage your score before paying down your student loans. Free and updated every 30 days.
Is it possible that the perception that loans can’t be wiped out in bankruptcy has become a self-fulfilling prophecy? Debtors think it’s impossible, so they don’t try. As a result, the number of successful cases remains small.
In his sample, Iuliano found that 25% received full discharges (meaning all their student loan debt was wiped out) and an additional 14% received partial discharges. While that’s not a majority, it’s certainly more than many people might expect. Also surprising was the finding that borrowers who represented themselves (pro se) were a little more likely to be successful than those who were represented by attorneys.
He noted that some borrowers pursued other options such as Income Contingent Repayment, but calls them a “poor substitute” for bankruptcy because they can result in
a borrower paying for years, only to potentially owe taxes on any debt that is forgiven at the end of the program.
The National Consumer Law Center has criticized the findings of this study, pointing out that it can be expensive and difficult for borrowers to try to get a discharge. Some student loan holders and their agents very aggressively fight discharges and borrowers who may need this relief may not be able to afford to file for bankruptcy, much less afford the additional costs involved in bringing a hardship discharge adversary proceeding. And, of course, there is by no means any guarantee of success.
Student loan borrowers who are trying to get out of debt should consider all their available options including loan forgiveness programs. income-based repayment and more flexible repayment plans. But they may also want to look into bankruptcy. By not doing so, they may be missing an opportunity for a truly fresh start.
“One cannot help but wonder why more people in bankruptcy do not seek to discharge their student loans,” Iuliano wrote. And Rhode is even more blunt, urging consumers to take action. “More consumers should pursue a student loan discharge in bankruptcy,” he wrote.
Before you file, make sure you’re aware of how a bankruptcy can affect your credit. A bankruptcy will remain on your credit report for up to 10 years and can drop your credit scores significantly. If you want to get an idea of where you currently stand, you can see your credit scores for free every month on Credit.com .
More on Student Loans:
Sign up for our weekly newsletter.
Get the latest tips & advice from our team of 50+ credit & money experts, delivered to you via email each week. Sign up now .
Gerri Detweiler is Credit.com's Director of Consumer Education. She focuses on helping people understand their credit and debt, and writes about those issues, as well as financial legislation, budgeting, debt recovery and savings strategies. She is also the co-author of Debt Collection Answers: How to Use Debt Collection Laws to Protect Your Rights . and Reduce Stress: Real-Life Solutions for Solving Your Credit Crisis as well as host of TalkCreditRadio.com. More by Gerri Detweiler
Comments on articles and responses to those comments are not provided or commissioned by a bank advertiser. Responses have not been reviewed, approved or otherwise endorsed by a bank advertiser. It is not a bank advertiser's responsibility to ensure all posts and/or questions are answered.
Please note that our comments are moderated, so it may take a little time before you see them on the page. Thanks for your patience.
NCLC is correct. it’s easy for a lawyer to criticize bankrupt clients to be able to afford an attorney at $250-$400 an hour for God knows how many hours it would take to litigate the adversary proceeding. That could easily cost $10K just to roll the dice. Right now, with the Brunner test being the major litmus test, even if you magically come up with that kind of money (a bankruptcy client probably already borrowed $2K for the Chapter 7 already), the client has to be blind, crippled, or crazy and prove to the court that he/she will never make money again.
In the long term, we will all have to figure out how to get cheaper educations, because college degrees have become as useful as HS diplomas in the job market. Sure, graduates make more in the long term, but at what cost? Jobs have been come nearly unobtainable in this country. I’m not sure if you’ve noticed, but the economy has reached a new Gilded Age where only the elite can truly afford college – because their parents can just cut a check to their Ivy League alma maters.