Bankruptcy of Your Student Loans

Bankruptcy of Your Student Loans

Sunday, March 25, 2018

Q & A on Bankruptcy of Student Loans

ANSWERS TO QUESTIONS ON FILING BANKRUPTCY 

I recently was asked several questions by someone who contacted me after reading my blog articles about dealing with student loan debt and who is considering filing a personal bankruptcy followed by an Adversary Proceeding (or as we also call it, a complaint) to prove the legal standard of Undue Hardship under Bankruptcy Code 11 USC §523(a)(8).

These questions and answers were part of my email exchanges with this individual and due to some of the content, are partially edited to be used here in this format.  Should you wish to have your own Bankruptcy questions answered, you can leave a comment below and I will reply in kind.  I am not an attorney, I cannot give you legal advice.  All of the information I provide here is readily available via the internet for anyone to discover. 

You may be well served to contact an attorney for legal counsel if you are able to.  Some law firms do offer a free initial council service.  My experience has been that few if any attorney firms will offer free legal services to take your student loan case all the way through the court and few have experience in the Adversary Proceeding process regarding proving Undue Hardship.  

My limited help should be seen as the impetus for those who are unable to continue financially to pay student loans to dig deeper into finding solutions. To that end, I present these articles hoping to encourage readers based on my own success in winning a full discharge of my Federal Student Loan Debt in 2016.


Q & A on Bankruptcy Procedures

Questions:


As far as my BK Chapter 7 filing:  I understand that the actual filing, and court proceedings, will be done by me, but if there are resources available at no charge/free legal aid, or classes to help file the BK portion, should I take advantage of those resources? 

OK I will attempt to answer your Bankruptcy Questions. I don't have a magic wand... but The internet is
the next best thing!  


This web site is the one I refer to when trying to get informed on Bankruptcy questions and to get the needed forms: http://www.uscourts.gov/services-forms/bankruptcy/filing-without-attorney


The above site is for those wishing to file without an attorney.  Go here and learn as much as you can.  The official government bankruptcy forms are also linked there on the right hand side (click on "forms"). You should plan on filing a Chapter 7 and you should be filing as "An Individual".

Notice that one of the forms listed is: "Chapter 7 FEE WAIVER - Procedures & Resources"  (as a side note: I filed my Chapter 7 and requested a fee waiver and was granted a fee waiver)  The fees can be expensive depending on the court.  I think mine would have been over $300.00? Read over the "FEES" section.

The fee waiver form is B3B

You can't go wrong using this web site.....  Just begin to fill out the forms and the fill out the information based on what information you have.  These forms will also become part of your "exhibits" in your AP. 

As far as taking classes??  I was required (I think?) to take a Bankruptcy Class by the court.  The class was "OK" but I already knew all the stuff because I had filed BR's before for myself and helped another friend in Michigan file a Chapter 7 right before I moved to Virginia - so I went to the class in Virginia mainly to get their info on student loan discharges based on the hardship Clause. 

Note: What I was told by this lawyer holding this class about student loan discharges was that student loans cannot be discharged in Bankruptcy.  I knew she was wrong.  When I challenged her, she made a slight correction saying that it can be done, but it is not easy and she did not know of anyone who had been successful in doing it.  She is ill informed!

  • Question-Can you add anything to the list below?
In regards to your list here -----The smart thing to do is have as much documentation on hand with you when you go to file --- They may or may not need it, but it will save you time if you are over-prepared rather than under-prepared!


Social Security Card – Original? I am pretty sure - But you will need proof of who you are-
I am pretty sure I had to show my Social Security card.

Award letter-social security that show the amount you are receiving? Yes, most likely-- as proof of income (but for sure you will include this as one of your Adversary Proceeding Exhibits)

California Driver's License – or other photo ID? (Ditto of above) 

Pay stubs or unemployment statements – from the past six months? Probably?

Three months' financial statements for checking, savings? Yes, for sure

Utility bills/expenses for the past month? Probably?

Recent mortgage/vehicle payment statement? Probably?

Past two years' tax returns – These can also be requested from the IRS? Yes, for sure 

Tax debt documentation? Pretty Sure - yes?

Lawsuits, foreclosures, collections and/or repossession documents? Probably?

Lease or rental agreements? Yes, most likely

Any job termination paperwork? Unsure for BR -- but as an AP exhibit for sure!

Question- What is the timeline of events from this point forward? What is the process?
     - Bankruptcy (BR) Chapter 7?


 - BR Chapter 7 You will need to do the Chapter 7 Bankruptcy 1st!  Using the forms

(Note: Review all the Federal BR forms for a Chapter 7.  You may have other forms to complete - it depends on your own situation?) Read all of the instructions provided, ask questions if confused.

NOTE: If you are in financial trouble, I suggest you apply for the BR "FEE WAIVER". 
Using form: B103B (or you can agree to pay the fee in installments using form B103A)

 - Undue Hardship Adversary Proceeding?

Question-Should I get the BR Chapter started and Filed ASAP, and once it is filed begin with preparing my Adversary Proceeding (AP)? Should the AP be completed before I file for the undue hardship case? 

WHEN DO I BEGIN MY ADVERSARY PROCEEDING? 


OK!  I recommend that you have a good start on your Adversary Proceeding in conjunction with the BR preparations.  In my case I had my AP 95% completed by the time I filed my BR Chapter 7 Note: there may be a deadline to file an AP as I explain in the following paragraphs: (Always Check with the Court Clerk assigned to you).

SECONDLY: Regarding should I begin the AP now?

RE: Undue Hardship Adversary Proceeding:  You need to ask the Court Clerk how soon you can file your AP. The thing to do is, get your Bankruptcy all ready to file, go into the court (find your court: http://www.uscourts.gov/court-locatorthen INFORM the Court clerk you PLAN ON filing an Adversary Proceeding to attempt to have your Student Loan Debt 
Discharged. 

The clerk will probably tell you that you must wait until your Bankruptcy is granted (finalized). The clerk should tell you that once the BR is finalized,you will have "X" amount of days or weeks to file your AP.  Keep that deadline in mind.... If you miss it you MAY have to pay $ --- otherwise I am pretty sure there is no fee to file an AP, but you can ask if there is a fee for filing an AP before the deadline. 

Besides, there is a lot that you will use for both filings - from the data you assemble to prepare to file for the Bankruptcy filing most will also be part of the Adversary Proceeding!

At this time --- read and reread all you can about Bankruptcy and Undue Hardship. Take what others have done as a template for your own case development.

There is really no real hurry?  You have time.  One thing to do now, is to write to your lenders ask them to send you the latest details about your student loans -- and in that letter you can tell them you are asking for information because you are planning on filing Bankruptcy to discharge your student loans. That is giving them "NOTICE" and they then should acknowledge that you gave them such notice --- and you can use a copy of these letters as "exhibits" to show the court you had told your lenders were not able to pay them and were planning on filing for Bankruptcy to discharge your student loans.

Question-I see how getting the court clerk to accept the AP documents on a flash drive when filing the undue hardship case saves time and money due to the printing costs, do you have any suggestions on how to “plant that seed” with the court clerk during my BR case, so when I file my AP the court will take the documents on a flash drive?

Perhaps what you can do is ask the court BR clerk if you will be "ASSIGNED" a clerk for your BR?  Most courts assign your "CASE FILE" to a "CASE MANAGER" (or CASE CLERK) That is the gal or guy who takes your case and is your point of contact.  If  they give you a Case Clerk, get their business card (or name and phone number at a minimum).  Your clerk of courts is someone you will want to "be friendly to" (in a professional sense that is).  

As for the Thumb Drive of your AP and exhibits, it will depend on the permission of the Judge/Court/Clerks/Defendants ---  In my case, they would have allowed it for the AP filing but because I listed my SOCIAL SECURITY NUMBER on some documents, I had to "go back and "scrub" that personal ID info out of the filings.  

So I had to build 3 copies of the Exhibits in 3-ring binders(which was a lot of printing cost). I later learned the 3 copies (one original & two copies) were ONLY for the court's use. The defendant's you serve when filing the AP are also supposed to be "served" a copy of all exhibits and documents!

In my situation, I was supposed to send a full BOUND set to the defendant (The Dept of Ed. lawyer -- who was the U.S. Attorney - in my case).  But when I asked him if he would accept a thumb drive of my exhibits he said “OK” -- So I did not have to go and print another full set and do the 4th 3-ring binder for that. Saving me time and printing costs.

So to say it again, do not include a social security number on anything filed.  Mine was listed on my loan payments to the loan servicers and on other docs so I just used a black marker before I re-scanned them into the computer files to remove the S.S. numbers. Took a lot of time and paper - no fun! Perhaps if I had known this the court would have taken the drives?

NOTE:  Ask your court if they prefer ALL filings to be in PDF FORMAT!

By the way... what I did was used a PDF creator (converter) and as I scanned all of my documents they became PDF file documents.  FYI: (There are many free converters for downloading -- try a couple to see what works best? Simple scanning can be done using Microsoft Window Fax and Scan which then can capture photos as .jpeg files which can be then converted to PDF's using free software like www.jpegtopdf.com  (there are many similar ways but I'm sure you know already?)

The KEY is confidence!  And you will gain that by doing this work and thinking of
this as a project like a college thesis or term paper project.  Not a big deal actually!

SPEAKING OF FORMATS?


Question-Do I need that 28 line court document paper to file these proceedings?

Note: Regarding the format the court will "accept" your written documents especially your court motions and AP Complaint.

Most Federal Bankruptcy Courts require special formatting of any filings.  In the case of filing your Adversary Proceeding as the Plaintiff -- who in essence is filing "a Motion" which here is "an action of Complaint" against the Defendant(s) (Lenders/Loan Holders/the Department of Education/The U.S. Government).  The court will most likely want to see the complaint filed on an 8-1/2 by 11 inch white paper with a 28-line formatting.

The 28-line page template is readily available and can be downloaded free at several sites on the internet.  

YES!  here is a link to download the template: https://www.legalpleadingtemplate.com/ 

Note: The 28-line template is the 5th one ---  second row down - the first form on the right on this web site page. (You can choose what word processor you are using.)

Note: There is ALSO a 28-line template for the "first pleading page" I call the "Cover Sheet"  which is used in the AP or the start of any motion.  This template is the 2nd sheet on the first row and labeled "Legal Pleading Template for Plaintiff vs Defendant in a Civil Lawsuit"

WHAT ELSE SHOULD I KNOW NOW?


One thing to do is search on line for a recent case that was settled in your court district?  Use the search terms: 523 (a) (8) with the court district you are in.  Perhaps a case will pop up that can be used in your AP to boast your position?  I listed many cases to support ALL of the points and to prove the 3 parts of Brunner Test with facts that I met and or exceeded the requirements of the (outdated) Brunner Test as well as met or exceeded requirements of the Johnson Test and the Totality of Circumstances Test used in the other districts. Learn these “TESTS” they are key to winning your AP!

NOTE:  If you do not know what court district you are located in here is the link: http://www.uscourts.gov/court-locator  For "Bankruptcy Courts" use the drop down provided listed as court type and include your own zip code.  It is that easy!  Love the WEB!

You can do it!  I am proof!  If I did it -- anyone can!


I hope this helps.  My goal is writing these articles is to provide some small helps to those who have looked for answers on how to deal with the relentless attack by ruthless and predatory lenders backed by the Department of Education who are continuing to make it their goal not to allow information about the legal use of Bankruptcy to discharge student debts even when the debtor is suffering "UNDUE HARDSHIP" with poverty disabilities, and life threatening illness!


If you like my articles, please let me know.  If I can answer any questions, I will.  Please follow me by adding your email address to the box in the upper right of this page or in the link box below.  Thank you and God Bless You and God Bless America!


















2 comments:

  1. Pretty nice post. I just stumbled upon your blog and wanted to say that I have really enjoyed browsing your blog posts. In any case I’ll be subscribing to your feed and I hope you write again soon. https://www.bridging-loan-co.uk/

    ReplyDelete
  2. James, Thank for the compliment! Please feel free to read my articles from the beginning to the most current. I admit I do not write as often now as I have in the past. This is partially due my being very disappointed in the lack of changes I am seeing by the legal community to demand change in the Bankruptcy Code regarding the student loan crisis, and in part due to the disappointing performance of Secretary Bestsy DeVoss the head of the Department of Education.
    I could go on about that but suffice it to say others have written about these issues extensively and I would agree with thier assessments. Until I see some movement by the current administration to deal with the crisis, I fear for anyone who is suffering as I did under the wieght of a massive student laon with the inability to ever see it paid off in a lifetime!

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