Articles Posted in Student loans

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cramdown-picWe write a column – that has become 1-2 pages due to all the stuff going on — called the Student Loan Sidebar in our local Cramdown publication to all bankruptcy practitioners including debtor attorneys, the creditors’ bar and our judiciary.

Because not everyone has access to this publication, we also have a copy added to our home page of our website.  Here is the Spring Sidebar:

https://www.christiearkovich.com/files/student-loan-summer-2023.pdf

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arkovich_law-narrow“It is now time”, states Judge Klein who is charting a path for discharging student loans without being reversed.  For years, bankruptcy judges were wary of ruling in favor of debtors who asked for a discharge of federal student loan debt.  In part, because those Judges knew their rulings would be appealed by either the Department of Education, or ECMC (guarantor litigator for the older FFEL loans).  Now it’s different.

In an opinion just out on April 5 (Love v U.S. Dep’t of Education, Fedloan Servicing, Nelnet; Adv. 21-02045-C), Judge Klein decried the “widespread belief that student loans are virtually impossible to discharge in bankruptcy.”  Now there is an attestation process, whereby a debtor can use factors like:

  • School closure
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By now everyone (our attorney friends) has probably watched a CLE on the new DOJ Guidance to discharge federal student loans, but do you really understand how to do the process?
We are on a panel set up by the Bransons in Orlando doing an all-day workshop via Zoom on 4/3/23 for the step-by-step process. Including how to draft complaints, serve summons properly, how to fill out the attestation form, what/when to give the DOJ information, and how to get paid. Most likely this will be a $2,500.00 no look per creditor for student loan adversary or you can file a fee application.
I’ll also have a section on other options that are only good for a short period of time when folks have non-Direct federal student loans and an adversary won’t work. This will include the new one time account adjustment under the IDR Waiver, PSLF, the new Repaye calculations which should make an IDR payment roughly 1/3 of what it used to be, BDTR claims are now processing for full forgiveness, the 10k forgiveness appeal and an update on TPD and the payment pause.
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Christie_1One of the early and frequent arguments made by opposing counsel in our private student loan discharge adversaries in bankruptcy is that the student loans were made for an educational benefit and thus are excluded from discharge.  Specifically, Section 523(a)(A)(ii) exempts from discharge “an obligation to repay funds received as an educational benefit, scholarship, or stipend.”  The creditors’ attorneys’ argue that there is ample case law to support that assertion.

The “ample” case law referenced by opposing counsel is an older view replaced by the current view clearly supported now by three circuits.  In other words, appellate law from these three circuits have more precedential value than trial level opinions often cited by defense counsel.  Bottom line, this is the typical initial creditor response that no longer has any merit.  It’s meant to test your knowledge in my opinion.  Many who are bringing these cases for the first time would fold because a student loan certainly appears to have an educational benefit at first blush.

The Second, Fifth and Tenth Circuit have recently affirmed that private student loans are not “obligation[s] to repay funds received as an educational benefit, scholarship, or stipend” – and thus not covered under 523(a)(8)(A)(ii).  See Homaidan v. Sallie Mae, Inc.

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Christie_1Some of you may have heard that the May 1 deadline to consolidate older FFEL federal student loans to the newer Direct student loans for the one time account adjustment has just been extended until the end of the year.  While that initially seems like great news, why is it NOT a good idea to wait?

The health emergency ends May 11.  Once the Department of Education presents the IDR Waiver in a few days, this will give plenty of ammo for commercially held FFEL loans to sue to cancel what will likely be $200 billion of student debt to avoid forbearance months from counting and other methods of counting payments that don’t exist outside of the IDR Waiver program.  $200 billion reasons to appeal.  The appeal alone may stretch that out to the next administration.

Our advice is to consolidate before mid May to get it done, while it can be done.  Just in case.  $200 billion is a lot of money and there is growing support behind commercially held loans to not just wipe them out.

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Christie_1The deadline to consolidate FFEL loans to Direct loans under the IDR Waiver program requiring a one time account adjustment has been moved from May 1 to the end of the year.  This takes some pressure off for sure — but it’s still a good thing to do now rather than later.

I have some questions about how qualifying payment counts will be credited now that the IDR Account Adjustment period has been extended:

  1. Under the Account Adjustment rules, if you consolidate loans with different payment histories, the longest history is applied to the entire consolidated balance.
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Here’s a copy of a redacted letter our client received today – her loan is now toast!  We should expect many many more in the next few days…

Borrower Defense Application School: Argosy University

Approval of Your Borrower Defense Case Under Exhibit C of the Sweet v. Cardona Settlement

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ABIReminder, ABI’s presentation for the new DOJ bankruptcy attestation discharge process is today at 3:00 p.m., here’s the link:  https://abi.org/events/student-loans-in-2023-is-bankruptcy-finally-a-viable-option?utm_source=social&utm_medium=banner&utm_campaign=abiLIVE_studentloan23&mibextid=unz460

We are presenting along with Chad VanHorn from South Florida to explain how to file these cases, and give practical tips along the way!  I’m sure the ABI will have a recording of this national webinar available on their website if you can’t make it .

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Christie_1I’m jointly presenting a webinar this week for the ABI on the new DOJ procedures to allow the discharge of federal student loans.  The intent of the DOJ in reviewing student loans for discharge is to help create a process that allows:

  • Clarity, transparency and consistency
  • Reduce burdens by simplifying the fact gathering process through a form Attestation
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