For years, the fact that student loan debt stayed with bankruptcy filers kept individuals sinking in personal debt from filing for bankruptcy. That may all change with a recent statement made by the current administration.
According to the Department of Education, the possibility of borrowers having their student loans discharged in bankruptcy is becoming more of a reality. In fact, the Department is opening comments with respect to individuals requesting an undue hardship discharge of their student loan debt in bankruptcy.
Student loan balances have sky-rocketed over the past few years to an all-time high of $1.4 trillion. The average balance held is now at $34,144, which has gone up 62 percent over the past ten years.
As of September 30, 2017, approximately 4.6 million student loan borrowers were in default on their loans. The Department of Education now has the national student loan default rate at somewhere over 11 percent. To be in default, a borrower has to have missed making monthly payments for 270 days.
Of course, the fact that the Department is opening the comment period does not guarantee a policy change, but at the least, the Department is interested in hearing what borrowers have to say.
Currently if a borrower is facing issues with student loan debts, the first steps he or she is recommended to take is to postpone payments with either a deferment or forbearance. A deferment will let the borrower put the loan on hold for a period of up to three years, allowing them to catch up on other debts. However, the borrower does have to qualify for a deferment, and if he or she does not qualify, a deferment allows the borrower to at least temporarily suspend student loan payments for a period up to one year. This allows some temporary relief in terms of the large payments student loans often incur, but remember during this time the interest on the loan will continue to accrue and be added to your total balance.
If deferment and forbearance are not options, working with the lender on an income-based repayment plan can allow the borrower to pay a percentage based on his or her income, rather than a flat rate. However, even this option requires the borrower to be at a certain income level.
Student loan discharge is not currently a complete impossibility, but it is an uphill battle. Two legal tests are currently used by courts to determine if a borrower qualifies for student loan debt forgiveness in bankruptcy. Under the Brunner test, the borrower has to be at a certain poverty level such that he or she cannot maintain a minimal standard of living for himself or his or her dependents, the financial situation is likely to persist for a significant period of the repayment period and the borrower has made good faith efforts in repaying student loans. The Totality of the Circumstances test allows courts to look at all relevant factors in the case to determine if forcing the borrower to repay back his or her student loan would be an undue hardship. Both tests require the borrower present evidence and testify in bankruptcy court to get the student loan debt discharged.
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For borrowers who are struggling with student loan debt, relief options are available. Many student loan borrowers are unaware that they have rights and repayment options available to them, such as postponement of loan payments, reduction of payments or even a complete discharge of the debt. It is important you contact an experienced Miami bankruptcy attorney who can advise you of all your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
