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Tightening Restrictions

Further legislation was even less generous toward student debtors. By 1998, the seven-year period after which student loan debt could potentially be eliminated through bankruptcy proceedings was also eliminated with the passage of another set of Higher Education Amendments. Thus, the nebulously defined “undue hardship” was the only remaining provision under which student debt could be discharged in bankruptcy.

Seven years later, in 2005, all qualified education loans, including most private loans, were excepted from discharge with the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act. Private student loans no longer needed to be associated with a nonprofit institution to be excepted from bankruptcy discharge.

Public Criticism

Critics have claimed that the lack of recourse to bankruptcy has all but ensured that lenders will continue to extend credit to student borrowers with abandon. Under the current legislation, lenders have little motivation to assess the creditworthiness of the people to whom they lend.

They are almost completely secure in the knowledge that their borrowers will remain on the hook for the amount borrowed, and, in the case of private lenders, the exorbitant interest fees that will accrue. Thus, they feel no need to underwrite the loans. Research has demonstrated that there was no change in the availability of private student loans before and after passage of the 2005 legislation.

Further, some have contended that the increasing availability of student loans has enabled institutions to continue to raise tuition rates. This controversial linkage of the two phenomena is known as the Bennett hypothesis, after former Education Secretary William J. Bennett, who first advanced the idea in a 1987 New York Times op-ed.

Legislative Pushback

Legislators have attempted, with little success, to roll back these regulations starting as early as 1977, a year after the first bankruptcy restrictions were instituted on student loan debt.

Recent attempts include:

Judicial Intervention

The relatively few cases of student debt that have made it to bankruptcy court have rested on the “undue hardship” clause that has survived the increasing restrictions on discharge. Findings of undue hardship require adversarial proceedings.

The standard for determining whether plaintiffs meet the standard was determined by the Court of Appeals decision on Brunnerv. New York State Higher Education Services Corp (1987).

The standard established by this case, popularly known as the Brunner test, mandates that a student loan may be discharged if the debtor is unable to pay on the loan and that the circumstances that have led to that financial hardship are likely to persist. It further stipulates that the claimant must have made good faith efforts to repay the loan.

The Brunner test applies in all circuits but the 1st and 8th circuits. The 8th circuit uses a similar but more flexible test called the Totality of Circumstances test established six years earlier in Andrews v. South Dakota Student Loan Assistance Corp (1981).

The Brunner test has, in practice, proven extremely difficult to meet. One bankruptcy court judge referred to the Brunner test as requiring “a certainty of hopelessness, not simply a present inability to fulfill the financial commitment” (Bankruptcy Judge Burton R. Lifland, In re Briscoe v. Bank of New York and New York State Higher Education Services Corp, 16 B.R. 128 Bankr. S.D.N.Y. 1981).

An increasing number of bankruptcy judges are speaking out on what they view as the unfair standard they are expected to uphold in their decisions. Some have discharged portions of student loan debt but have found it impossible to absolve it entirely, thus in their view defeating the purpose of the “clean slate” that bankruptcy proceedings are supposed to provide.

Further complicating bankruptcy proceedings for student loan debtors is the fact that they must retain legal representation, usually at significant cost.

In one significant case, which reached the Supreme Court, a student debtor had discharged the interest on his loans in Arizona district court while still agreeing to pay on the principal. His lender was not notified of the decision and then began garnishing his tax returns to recoup the interest. Though the district court later reversed the initial decision, the court of appeals upheld it. When the case went to the Supreme Court in 2009, the initial decision was again upheld (United Aid Funds, Inc. v. Espinosa).

The case was characterized by procedural errors, notably that the undue hardship findings had occurred outside of an adversarial proceeding as technically required. As such, it did not establish a useful precedent for future discharge cases.


Other Forms of Student Debt Relief

The alternatives to bankruptcy discharge have mostly occurred in the form of income-driven repayment plans, of which there are currently four.

The option was first offered in 1993 following the passage of the Higher Education Amendments of 1992. The income-contingent repayment (ICR) plan laid out in this legislation applies to federal direct loans and mandates loan payments amounting to 20% of discretionary income. Loans are forgiven following 25 years of payment on this plan.

The College Cost Reduction and Access Act of 2007 established an income-based repayment (IBR) plan for both federal direct loan and Federal Family Education Loans (FFEL). Under this plan, borrowers are required to put 15% of their discretionary income toward loan payments. After 25 years under this plan, the loans are forgiven.

The income-based repayment plan laid out in the Health Care and Education Reconciliation Act of 2010 reduced the amount of discretionary income to 10% and shortened the repayment period to 20 years for new borrowers as of July 2014.

This repayment plan was rolled out two years early, in 2012, as the Pay As You Earn (PAYE) repayment plan. The U.S. Department of Education used its regulatory authority to modify the regulations for the income-contingent repayment plan to implement the new version of income-based repayment. It was available only to borrowers who first took out a federal loan on or after October 1, 2007 and who received loan funds on or after October 1, 2011. It requires that 10% of discretionary income be put toward loan payments and offers a 20 year repayment period, after which the remaining balance is forgiven.

The Revised Pay as You Earn (REPAYE) repayment plan launched in 2015 is available to all borrowers of federal direct loans. Again, this repayment plan was implemented by modifying the regulations for the income-contingent repayment plan. It requires payments amounting to 10% of discretionary income over a period of up to 20 years for undergraduate borrowers and up to 25 years for graduate borrowers, after which the remaining balance is forgiven.

Unlike IBR and PAYE, REPAYE has a marriage penalty and no cap on the monthly loan payments. Under IBR and PAYE, loan payments from married borrowers are based on just the borrower’s income for borrowers who file federal income tax returns as married filing separately. REPAYE bases the monthly payments on joint income, regardless of tax filing status. IBR and PAYE also limit the monthly payments to no more than required under standard 10-year repayment, while REPAYE allows monthly payments to increase without limit as income increases.

Student borrowers going into certain professions may be eligible for Public Service Loan Forgiveness (PSLF), under which the remaining debt for some types of federal loans will be forgiven after 10 years of payments if the borrower works in a public service position.

Deferment and forbearance options are also available to select borrowers, such as those enrolled in certain educational programs, volunteering in the Peace Corps or AmeriCorps, or performing active military service. There is also a disability discharge for borrowers who are totally and permanently disabled.

Though helpful to some, these options do not approach the level of relief offered by bankruptcy discharge.

The U.S. Department of Education often raises the availability of income-driven repayment and disability discharges as a defense to bankruptcy discharge. Bankruptcy discharge is thus usually limited to the following situations:

While advocates continue to push for reversal of the legislation that has eliminated bankruptcy discharge for most borrowers, the prospects of that happening any time soon appear to be dim. The best hope for overwhelmed student debtors appears to rest with jurists who liberally interpret the undue hardship standard and the few lawyers who represent student loan bankruptcy cases pro bono.

For the most part, though, overwhelmed student debtors have little hope of relief in the near term.

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