by Herbert Wiggins | Nov 29, 2022 | bankruptcy, student loans
On August 24, 2022, President Joe Biden announced a proposed plan, through the Department of Education, to forgive a portion of student loan debt owed by millions of Americans. The plan proposed to allow cancellation of up to $10,000 for certain loan recipients, and up to $20,000 for Pell Grant recipients. This forgiveness would be given only to holders of federal loans, and would not guarantee full cancellation of all debt owed by every borrower, such as those who owe more than $20,000 in Pell grants. The program also does not apply to those whose loans come from private lenders, such as Sallie Mae.
As of this writing, over 26 million borrowers have applied for relief, and the Biden Administration has approved certain applicants for relief. But no loan relief has been granted.
No relief has been granted because several Republican Attorneys General, from Nebraska, Missouri, Kansas, Iowa, Arkansas, and South Carolina, sued to stop the program (Eastern District of Missouri, Case No. 4:22CV1040, filed 9/29/2022). Briefly, the States claimed that the loan relief would harm them financially, based on lost loan repayments (the States apparently did not discuss how they might benefit from increased tax payments if the borrowers were not tied to low-wage jobs to make their current payments; nor did the States discuss how much more money they would receive through the federal infrastructure bill).
Eastern District of Missouri Judge Autrey threw the case out, based on lack of “standing” (i.e., lack of an actual harm that the States had suffered), but the 8th Circuit Court of Appeals, which oversees several Midwestern states, placed this loan relief program on hold, pursuant to an injunction. State of Missouri, et al. v. Joseph R. Biden, etc., et al., Case No. 22-3179, published 11/14/22
Unfortunately, the 8th Circuit’s logic, particularly on the issue of immediate, actual harm (“standing”) appears disingenuous, and suggests a political motive behind the decision. For example, the 8th Circuit ruled that the state of Missouri has standing, because a loan fund created by the state of Missouri would potentially lose money if some of the loans granted through that fund were reduced or forgiven. That no relief has yet been granted means that no funds have yet been lost. And thus the state of Missouri has no standing. Lujan v. Defenders of Wildlife (1992) 504 US 555, 575-578 [opinion of Scalia, J].
Even more worrisome is the court’s assertion that because a federal decision causes a state to lose money, the state can sue to stop that program. Taken to its logical extreme, if the federal government decides from year to year to spend less money on highway repair for roads in Ohio than in Kansas, Ohio can sue and stop the program. Or if, year to year, the federal government decides to grant more funds for cancer research to universities in Minnesota than in California, California can sue to stop the program. This is the sort of chaos that Scalia warned against; the courts would assume day to day authority over the acts of a co-equal branch of government. Lujan v. Defenders of Wildlife (1992) 504 US at 577.
In other words, the 8th Circuit Court’s reasoning leads to chaos, and no federal spending program could ever be approved, because by definition, some agency, state, or individual will receive less money than another.
Additionally, how these States might benefit eventually from the improved financial health of borrowers apparently played no role in the 8th Circuit’s decision.
The Biden Administration has asked the US Supreme Court to intervene and overturn the 8th Circuit. (SCOTUS Blog, 11/18/2022) However, given the Court’s extreme conservative nature, as well as its willingness to disregard long-established precedent, a favorable ruling is not assured.
by Herbert Wiggins | Oct 20, 2022 | bankruptcy, student loans
The conventional wisdom is that “student loans cannot be discharged in bankruptcy.”
But the “conventional wisdom” is WRONG.
There is a high evidentiary bar for a debtor to discharge (cancel) her or his student loans, but discharge is possible.
In a recent case, the bankruptcy court discharged the loan of a Cambodian immigrant who, as a medical student, had amassed $440,000 in loans for his medical education. In re Koeut, 622 B.R. 72 (2020) [unpublished].
The test for relieving student debt is laid out in Brunner v. New York State Higher Education Servs. Corp., 831 F.2d 395 (2d Cir.1987) The Koeut court applied the 3-part Bruner test to relieve the medical student from the debt:
(1) The debtor cannot maintain, based on current income and expenses, a minimal standard of living for herself and her dependents if forced to repay the loans;
(2) Additional circumstances exist indicating that this extreme situation is likely to persist for a significant portion of the repayment period of the student loan; and
(3) The debtor has made good faith efforts to repay the loans.
The court applied these factors to the $440,000 that Mr. Koeut declared in the Bankruptcy Court. The Bankruptcy Court eventually discharged about $432,000.
The Koeut court reasoned:
“[Mr.] Koeut has satisfied the tripartite analysis of the Brunner test sufficiently to support a partial discharge of his student loans. Koeut’s current income and expenses do not support a minimal standard of living, even without making loan payments. Koeut’s inability to repay his full loan balance will persist over his remaining expected working life to an extent that he can only make partial payments without [622 B.R. 85] enduring undue hardship. As the DOE admits, Koeut deserves a break. A partial discharge of $432,173.99 of Koeut’s student loans will be ordered, leaving a balance of $8,291.67 with interest to accrue at .11%. Koeut will be required to make payments of $41.87 per month to the DOE from December 2031 to December 2048.” [emphasis added]
Therefore, a debtor who seeks discharge of a student loan in bankruptcy must make a very thorough, detailed showing. And the debtor (and the lender) have the right of appeal, no matter how the Bankruptcy Court decides.
A difficult road, yes; but not an impossible one.
WARNING: THIS POST DOES NOT CONSTITUTE LEGAL ADVICE, AND READING IT DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. PLEASE CONSULT WITH AN ATTORNEY!!
#bankruptcy #studentloans #education #finances #lending #banking #fairlending
by Herbert Wiggins | Oct 6, 2022 | bankruptcy, BANKRUPTCY LAW
Where trustee failed to file the adversary proceeding within the time required by law, he could not undo the error by claiming that he had timely filed an adversary complaint in the wrong case. The facts of the InterWorks bankruptcy had nothing to do with the improper file, and thus there was no “relation back” effect based on the late-filed adversary proceeding in the Interworks case. Additionally, the fact that the trustee dismissed the adversary proceedings that he started in the improper case nullified any application of the relation back doctrine; when he dismissed the improper case, there was nothing for the new pleading to “relate back” to.
Furthermore, there was no equitable tolling, so the adversary action was barred. FRCP 15(c)(1)(B); 11 USC 108(a) & 546 (a).
In re Interworks (Chapter 7) CC-22-1027-STL [Unpublished decision of the Bankruptcy Appellate Panel for the 9th Circuit, filed 8/19/2022]
by Herbert Wiggins | Sep 29, 2022 | bankruptcy, BANKRUPTCY LAW
A debtor may file a bankruptcy case where the debtor resides, is domiciled, or has its principal place of business or principal assets. But a debtor can claim exemptions only under the law of the debtor’s domiciliary state. 28 U.S.C. § 1408; In re Larsen, Case No. BAP No. NV-20-1133-FBG (Unpublished) Bankruptcy Appellate Panel, 9th Circuit, filed November 3, 2020.
by Herbert Wiggins | Aug 5, 2022 | bankruptcy, BANKRUPTCY LAW
A debtor who seeks discharge, for himself or for a business, must maintain adequate financial books records to allow the bankruptcy Court to determine the debtor’s true financial condition. For example, pursuant to 11 USC §727(a)(3), the debtor is not entitled to a chapter 7 discharge if that debtor “has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case[.]” The statute has the consequence of making the discharge dependent on the debtor’s true presentation of his or her financial affairs, and complete disclosure is a condition precedent to the granting of the discharge.
Caneva v. Sun Cmtys. Operating Ltd. P’ship (In re Caneva), 550 F.3d 755, 761-62 (9th Cir. 2008), cited in In re: Frank Daniel Kresock, Appeal from the United States Bankruptcy Court for the District of Arizona, BAP No. AZ-20-1270-BSL (Filed December 22, 2021; Unpublished)
by Herbert Wiggins | Jul 22, 2022 | bankruptcy, BANKRUPTCY LAW
Where Debtor had a judgment entered against him by California state court for fraud and elder abuse, this judgment was not discharged (cancelled) by his Chapter 7 bankruptcy discharge. Debtor’s and Debtor’s counsel’s strategic absence from court at the time of the trials did not eliminate the legal effect of the judgment. The debt was non-dischargeable, pursuant to 11 USC §523(a)(2)(A).
In re: Robert Edward Zuckerman,
UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT; BAP No. CC-19-1200-TaFS
Argued and Submitted on February 27, 2020, Pasadena, California [Published Opinion]
