Student loans are typically not dischargeable through bankruptcy, though there are options for debt relief in extreme situations. This also changes depending on the kind of loan that has been received. Federal loans or loans obtained through a non-profit organization like a school are unlikely to be dischargeable. However, private loans may be easier to discharge when filing for bankruptcy. It is vital to consult with a bankruptcy lawyer to determine whether applying to discharge a student loan is even possible for your specific situation. The vast majority of individuals are not eligible to discharge their student loans through the bankruptcy process, though there are multiple other options that can help ease the financial strain caused by student loan payments.  

The Brunner Test

There are three conditions that courts often used to determine whether or not an individual is eligible to discharge their student loans. All three conditions must be met in order to discharge student loans. This is called the Brunner Test. It was designed to prevent students from incurring student loan debt and filing for bankruptcy immediately after graduation. The three components of the Brunner Test are:

• Proving that you can’t maintain a minimal standard of living for yourself and your dependents based on your current income and expenses.
• Proving that your financial situation is unlikely to change during the loan’s terms. This may include proving some medical condition that prevents you from obtaining an additional job.
• Proving that you made good faith efforts to repay the loans, though this doesn’t necessarily indicate making payments. It can include searching for an affordable repayment plan or contacting your existing loan provider.

Other Tests

Though the Brunner Test is commonly used by a court during the bankruptcy proceedings, there are a few other tests that may be implemented to determine eligibility for student loan discharge. The Totality of the Circumstances Test, for example, looks at all relevant factors in the situation. This is done to determine if paying student loans will cause undue hardship to the quality of life of the individual. Undue hardship can be difficult to define and is largely up to the ruling of the court. It can be useful to look at the past history of the court to determine the likelihood of success.

An Adversary Proceeding

Essentially, student loans are generally not looked at as dischargeable assets during the bankruptcy process. In order to bring student loans into the mix, an adversary proceeding must be filed along with the bankruptcy. To prepare for filing an adversary proceeding, it will be important to ensure that you have made a good faith effort to repay the debt. This means that you need to document communication with your lender to show that you made an effort to adjust the payment plan. These proceedings are separate proceedings from the regular bankruptcy processes, though they will occur in conjunction with the process.

Chapter 13 Bankruptcies

Chapter 13 bankruptcies generally include implementing a reasonable payment plan that will allow you to repay your debts. This may similarly help to lower your student loan payments. However, in most situations, you will still be responsible for the remaining debt after your repayment plan has concluded. This is different from dischargeable assets, which are generally discharged after all of the payments in the plan are made.  

Chapter 7 Bankruptcies

Through a Chapter 7 bankruptcy, the student loan debt may be discharged completely, though this is extremely uncommon. Chapter 7 bankruptcies generally sell off assets to repay debts and the remaining debt is frequently discharged. The ideal type of bankruptcy to file for will depend primarily on the overall situation, so it is important to consult with an experienced legal professional when undergoing the bankruptcy process. There are many different types of bankruptcies, though Chapter 13 and 7 Bankruptcies tend to be the most common for individuals.

Possible Outcomes

Essentially, when you attempt to discharge your student loans, there are three possible outcomes. The first possibility is a complete discharge of student loans. In this situation, you will no longer be responsible for any remaining student loan debt. The second potential outcome is a partial discharge of the loan. This will result in a portion of the debt becoming discharged, which will reduce the total amount of debt and often the overall payments. They may also reduce the interest rate of the applicable loan. The final, and most common, outcome is no discharge of student loan debt, which will cause you to still be responsible for the student loan debt, even after completing the bankruptcy process.

Options

Federal loans are usually not dischargeable due to the availability of Income Driven Repayment Plans. These plans take your income into consideration and design a corresponding repayment plan, which may be a percentage of the total income or other consideration. This can cause the monthly payment to be as low as $0. $0 will not affect your standard of living, so it can be difficult for a court to justify discharging federal student loans.

There are several other options to minimize the financial strain of student loan repayment. For example, deferment is a possibility for student loans. Deferment essentially temporarily stops payments and may prevent the necessity of paying the cost of interest during the deferment period. Forbearance can stop loan payments from being required for up to a 12 month period. However, this method does require payment of the interest accrued during this time. The availability of alternative repayment plans is often why it is so difficult to discharge student loan debt during bankruptcy.  

Contact us for your Bankruptcy Needs

Bankruptcy should be used as a last resort for financial hardship. It has significant legal, personal, and economic consequences. Bankruptcy can remain on your credit for 10 years, which can prevent you from securing future loans. Due to the dramatic impact of filing for bankruptcy, it is important to consult with a knowledgeable bankruptcy lawyer. To obtain superior legal counsel regarding your bankruptcy, contact us at LeBaron & Jensen today!

Understanding bankruptcy can be difficult, as bankruptcies are generally complex processes. They are used to essentially give debtors a clean slate after they have obtained significant amounts of debt that they are unable to pay back. There are many different situations in which filing bankruptcy may be required, which is why there are several different types of bankruptcy. Whenever you undertake a bankruptcy process, it is necessary to obtain legal counsel from a lawyer that is experienced in bankruptcy proceedings. Our legal services help to ensure that you understand the ins and outs of bankruptcy, including how it will impact your credit and financial situation.

How Bankruptcies Work

Bankruptcies are designed to serve as a way for individuals and businesses to eliminate all or part of debts that they are unable to otherwise repay. They are complex processes that require consultation with a lawyer. Throughout the bankruptcy process, the debtor will have a bankruptcy trustee assigned to their case. This trustee will act as a representative that is designed to act on the behalf of creditors. They will oversee most of the major proceedings under the bankruptcy agreement. The process will depend on the various type of bankruptcy used, as some bankruptcies require the sale of non-exempt assets, while others depend on a repayment plan. It is important to keep in mind that bankruptcies will have a long-term impact, as they remain on your credit for 7-10 years, depending on the type of bankruptcy.

Types of Bankruptcies

There are several different types of bankruptcies that are designed to handle several different financial situations. Chapter 7 and Chapter 13 bankruptcies tend to be the most common, as they are designed primarily for individuals. During a Chapter 7 bankruptcy, a bankruptcy trustee will oversee the sale of assets that aren’t exempt. The money from these assets goes toward paying creditors. Chapter 13 bankruptcies allow for the individual to keep their assets, as it focuses on designing an effective repayment plan to allow debtors to make more manageable payments.

There are many additional types of bankruptcies, as well. A Chapter 11 bankruptcy is intended to aid businesses, while a Chapter 9 bankruptcy is designed for cities or towns. Chapter 12 bankruptcies are used for both family farms and family fishermen.

The Primary Reason for a Chapter 12 Bankruptcy

Chapter 12 bankruptcies are used to help family farmers or family fishermen to continue with their regular processes while allowing them to restructure their debt and repayment process. These kinds of bankruptcies put an automatic stay, which prevents creditors from proceeding with many options for a period of time while the individual files for bankruptcy. An additional benefit of Chapter 12 bankruptcies is that they help to protect co-signers, even if they haven’t filed for bankruptcy. Chapter 12 bankruptcies tend to be less complicated and expensive than Chapter 11 processes.

Chapter 12 bankruptcies are similar to Chapter 13, though they are far more flexible. The process includes creating a payment plan for disposable income. This plan lasts a minimum of 3 years and a maximum of 5, depending on the specific situation. When a Chapter 12 bankruptcy process is undergone, it will be important to compile many different documents. You need to provide a list of creditors. This list should include both the amounts and nature of the claims. You will also need to provide a document outlining the source, amount, and frequency of all income. Include a list of all property or assets that you own, as well as a detailed list of all monthly farming and living expenses. Consulting with a legal professional may allow you to determine the superior type of bankruptcy for your specific financial situation, whether you need to file as a business or an individual.

Eligibility for Chapter 12

Chapter 12 bankruptcies are only available for a limited type of individual, as they are designed to meet the unique financial needs of family farmers and fishermen. In order to qualify for a Chapter 12 bankruptcy, the total debt must be under a specified amount. For farmers, debts may not exceed $4,153,150. For fishermen, the debt may not exceed $1,924,550. There are also specific requirements for how much of the debt must relate directly to the operation of the business. For farms, this amount is 50%, while the amount is 80% for fishermen. Additionally, more than 50% of the total income must come from the operation of the business.

Chapter 12 Bankruptcy Discharge

Many debts can be discharged during a Chapter 12 bankruptcy process. After all payments under the repayment plan have been made, additional debts may be discharged. The individual must certify that they are up to date on all domestic support obligations, such as alimony or child support. Debts that can’t be discharged generally include domestic support obligations, debt due to malicious and willful damage to either property or injury to a person, debt due to personal injury or wrongful death caused by driving under the influence, as well as debts for the payment of money acquired by filing false financial information, fraud, or more.

Chapter 12 bankruptcies also allow for a hardship discharge. These conditions may allow the debt to be discharged when the debtor is unable to make all of the payments under the plan. The debtor must show that the inability to make payments is due to reasons beyond their control and isn’t their fault. Some of the most common reasons for a hardship discharge include illness or injury. In order for debts to be discharged, the creditors must have received at least as much as they would have in a Chapter 7 bankruptcy case.

Any kind of bankruptcy can be rather complicated. For this reason, we highly recommend that you obtain superior legal counsel when you intend to undertake a bankruptcy of any sort. Here at LeBaron & Jensen, we have a team of legal professionals that are experienced in bankruptcy law. To learn more about Chapter 12 bankruptcies, or to obtain superior legal counsel, contact us today!

Bankruptcy comes with an inherently negative connotation, for very good reason. It is a decision that should be considered carefully, as it can significantly damage your credit and results in many consequences in your life. However, not everything about bankruptcy is bad and there are several benefits to filing for bankruptcy, despite the downsides. However, when you decide to file for bankruptcy, you need to consult with a legal professional to learn both the pros and cons of bankruptcy and determine how bankruptcy will impact your life.

Automatic Stay

In many cases, filing for bankruptcy will result in an automatic stay being issued from the court. This is a legal injunction that stops any kind of collection from debtors. This can be incredibly helpful, as it will stop collectors from harassing you. You won’t have to dodge phone calls to avoid collectors, as the automatic stay will legally prohibit these collectors from contacting you until further proceedings have been completed. This can make your life much easier.

Clears Debt

Bankruptcy can help to either clear your debt or create a repayment plan for debts that cannot be discharged. An incredible advantage to this is that the cleared debts are gone permanently, which means that these debts will no longer impact your life and will allow you to focus on rebuilding your credit and your life.

There are both advantages and disadvantages of filing for bankruptcy. It is absolutely vital to obtain superior legal counsel to ensure that you are able to procure the best result after your bankruptcy case has been settled. Our attorneys are experienced and are able to effectively guide you through the bankruptcy process. To learn more about the impact bankruptcy can have on your life, contact us at LeBaron & Jensen today!