Can Student Loans Be Written Off through Bankruptcy?

July 1, 2015 By: Carrie Weir

Unfortunately, it’s very difficult to write off a student loan in either a Chapter 7 or Chapter 13 bankruptcy case. Why? Because you have to prove “undue hardship.”

Bankruptcy law excludes student loans from discharge (legal write-off) “unless excepting such debt from discharge. . . would impose an undue hardship on the debtor and the debtor’s dependents. . . .” So all you’ve got to do is show the bankruptcy court that requiring you to pay the student debt would cause you or your family an “undue hardship.”

“Undue Hardship”

But that term is not defined anywhere in the Bankruptcy Code. So bankruptcy and appeals courts have spent many years trying to give it practical meaning.

Think about this phrase, “undue hardship.” The dictionary meaning of “undue” is “excessive, going beyond the limits of what is normal.” So the phrase seems to mean that a student loan can’t be written off even paying it causes you a hardship. It has to cause you excessive hardship.

But what does that mean in the real world for people who can’t make their student loan payments?

Three-Part Test

As courts all over the country have struggled to figure out when an “undue hardship” exists, they have come to a general consensus. To fulfill this “undue hardship” standard, you need to meet three conditions:

1. If you were required to make payments on the student loan under your current income and expenses, that would leave you unable to maintain even a minimal standard of living.
2. This situation of you not being able to maintain a minimal standard of living is expected to stretch out over all or most of the repayment period of that student loan.
3. You have made a real effort at repaying the student loan, as well as qualifying for appropriate forbearances, consolidations, and administrative payment-reduction programs.

Keep in Mind that . . .

• With student loans, the debt is not discharged in a bankruptcy case unless you bring the issue before the bankruptcy court—essentially by suing the student loan creditor—before your case is finished. Otherwise, you’ll still owe that debt.
• If you don’t qualify for an “undue hardship” now, you may in the future, for example, if you become seriously disabled. If that happens after your bankruptcy case was completed, you may want to reopen your bankruptcy case then so you can get an “undue hardship” determination from the bankruptcy judge.
• Or if you don’t think you qualify now but expect to within the next 3 or 4 years—for example if you have a progressively worsening medical condition—filing a Chapter 13 “adjustment of debt” bankruptcy now may be a good option. It would usually allow you to avoid making any student loan payments for the next few years while you pay other more urgent debts. And then if indeed you became eligible for “undue hardship,” you could make that request at that time.

Conclusion

It’s not easy to discharge student loans in bankruptcy, but for an increasing number of people their financial challenges include a major amount of student loans. If you are one of those and are considering bankruptcy, it’s crucial you get good legal advice. Student loans take many, many years to pay off, so how you dealing with them will have a big effect on your life. If you are in the Rockwall, Heath, Greenville, Lavon, Wylie, Mesquite, Royse City, Sachse or Rowlett, Texas, contact the Law Office of Carrie Weir. The initial consultation is free. Please call 972-772-3083 or use this form .