Author Archive: Michael Fuller

Do I qualify to wipe out my student loans in bankruptcy?

undue hardship

ANSWER: The good news is that all student loans can be forgiven, whether federal or private. If you haven’t already, take our 60-second undue hardship quiz.

Undue Hardship Student Loan Michael Fuller 503-201-4570

The more boxes you can honestly check, the more likely your bankruptcy judge is to forgive your student loans. Read more about the undue hardship exception. Review our FAQ about simple lifestyle changes you can make to maximize your odds of discharging your educational debt.

Undue Hardship Exception

For any chance at wiping out your student debt in bankruptcy, you must qualify for the undue hardship exception. To qualify, you must be able to honestly check the first three quiz boxes:

  • I have no money left over each month to pay my student loans
  • My money problems aren’t going to get any better in the future
  • Over the years, if I ever had extra money, I put it toward my student loans

Create a Plan of Action

Brunner undue hardship test Oregon bankruptcy courtAssuming you can check the first three boxes, look over the rest of your quiz results. The more boxes you can honestly check, the more likely the judge is to forgive your student loans. Review our FAQ to create a plan of action to improve your odds of wiping out your student debt.

Can you make changes that will allow you to check more boxes? Can you spend less money each month? Should you have retirement savings? Can you take on a second job? Have you applied for income based repayment plans? Should you buy a new car?

The longer you wait to file bankruptcy, the more likely the court is to forgive your student loans. At trial, you want to bring written proof for each quiz box you checked.

How do I wipe out my student loans in bankruptcy?

Bankruptcy

ANSWER: Call the bankruptcy clinic at Oregon legal aid at 503-224-4086. You may qualify for a pro bono attorney to help wipe out your student loans in bankruptcy. If not, you will need to file bankruptcy without an attorney “pro se”.

File Your Bankruptcy Complaint

Student Loan Adversary Proceeding Bankruptcy Complaint
After you file bankruptcy, you must file a complaint against your student loan companies. Click here for a sample complaint. Your complaint should list all your student loan companies. Make sure your complaint explains every box you marked on your quiz. Read our FAQ again one last time before starting the bankruptcy process. Can you make lifestyle or budget changes that will allow you to honestly check more boxes? The more boxes you can check, the more likely your judge is to discharge your student loans. The longer you can wait to file bankruptcy after receiving your student loans, the better your odds of wiping them out.

Before filing your complaint, you must file a bankruptcy case and get a bankruptcy court case number. Call legal aid to see if you qualify for the bankruptcy clinic. The clinic pairs low-income Oregonians with pro bono bankruptcy attorneys.

Mail Your Complaint and Summons

Student Loan Adversary Proceeding Bankruptcy SummonsThe court will send you a summons a few days after your complaint is filed. Mail the summons and complaint to each student loan company on your list, and to the following addresses:

United States Attorney’s Office
District of Oregon
c/o Civil Process Clerk
1000 SW Third Ave Suite 600
Portland, Oregon 97204

United States Department of Justice
c/o Attorney General
950 Pennsylvania Avenue, NW
Washington, DC 20530

U.S. Department of Education
c/o Secretary of Education
400 Maryland Avenue, SW
Washington, DC 20202

The court will schedule your first hearing within a month or so. You can usually call in by phone.

File Your Certificate of Service

Student Loan Adversary Proceeding Bankruptcy Certificate of ServiceThe summons you got from the court came with a certificate. Return the completed certificate to the court.

Fill out a separate certificate for each student loan company named in your complaint, and for each address for the Department of Education listed above.

If you fail to properly serve a student loan company, the judge may be unable to forgive your student loans at the end of your case.

Exchange Documents and Information

Student Loan Adversary Proceeding Bankruptcy Discovery Requests for AdmissionBefore trial, you will exchange documents and information with your student loan companies. You must cooperate and answer their questions as best you can.

The student loan company may want to ask you questions under oath during a deposition. You may want to ask the student loans companies questions too, and request their documents. View a sample notice you can use to schedule your student loan companies’ depositions.

View sample requests for production and requests for admission you can send your student loan companies during discovery. Use requests for production to see what documents the student loan company may use to argue your prospects are actually better than they are. You may want to see the opposing party’s documents before trial so you are prepared to explain them to the judge. Use requests for admission to narrow the factual issues for the judge to decide at trial.

Student Loan Trial

Filing Student Loan Complaint in Oregon Bankruptcy CourtAt trial, tell the judge your story and talk about everything you marked on your quiz. Bring copies of the paperwork you want the judge to see. You might contact the Oregon State Bar consumer section in the months before trial. Request a new lawyer looking for courtroom experience to help you at trial.

If you live near Portland, your trial will likely be held at 1001 SW 5th Ave #700, Portland, OR 97204, (503) 326-1500.

If you live near Eugene, your trial will likely be held at 405 E 8th Ave #2600 Eugene, OR 97401, (541) 431-4000.

Before trial, the student loan company attorney will want you to produce all your documents and answer requests and interrogatories. Do the best you can. If you don’t have a computer at home, ask if handwritten answers are acceptable.

Judgment Discharging Student Loans

Student Loan Adversary Proceeding Bankruptcy US Bank Discharge JudgmentAfter trial, the judge will decide whether or not to wipe out your student loans. You may obtain a full or partial discharge, or no discharge at all. To qualify for discharge, you must prove that it would be an undue hardship for you and your dependents to pay back your student loans. Click here to learn more about the undue hardship exception. Sometimes a student loan company will not object to your complaint. In this scenario, you can enter a stipulated judgment. Other times, a student loan company will not appear at all. In this scenario, you will need to file a motion for default judgment.

Undue Hardship Exception

Undue Hardship Student Loans Forgiveness Oregon Bankruptcy Court

QUESTION: What is the undue hardship exception?

ANSWER: Undue hardship is what you must prove in order to forgive your student loans. Undue hardship involves three things. First, you must have no money left over each month to repay your student loans. Second, your money problems must show no signs of getting better in the future. Third, if you ever had extra money, you used it to repay your student loans.

Click here to read the actual text of the law about student loan forgiveness.

Types of Student Debts that can be Discharged in Oregon Bankruptcy CourtUndue Hardship Exception and the Brunner Test

Oregon courts use the Brunner test to prove undue hardship. Click here to learn more about the Brunner test. Take the student loan quiz to see if you may qualify to wipe out your student loans in Oregon bankruptcy court.

Income Based Repayment Plans

Income Based Repayment Plans Student Loan Forgiveness Oregon Bankruptcy Court

QUESTION: Should I apply for income based repayment plans?

ANSWER: Yes, always apply every year for each loan you have. Income based repayment plans allow you to pay what you can afford on your student loans. To greatly improve your odds of wiping out your student loans in bankruptcy, you should apply for repayment plans every year. For federal loan repayment options, click here. Your private loans may not offer income based repayment options – apply anyway. And keep copies of your letters requesting income contingent repayment options.

Income Based Repayment Plans

Ask all your student loan companies about income based repayment options, even if they are not currently available to you. Click here to learn about repayment plans for federal loans.

Filing Student Loan Complaint in Oregon Bankruptcy CourtIncome and Expense Budgets

Keep all copies of the letters you send asking about repayment options. You may need to show them to the court later.

Provide your lenders copies of your most recent tax returns and your monthly budgets. View sample monthly income and expense budgets.

If your income is low, your federal loan repayment plan payments will often be zero. Private student loans often do not offer repayment plans based on income.

Unpaid tuition was actually a student loan, university argues in court

unpaid tuition

Last April, an Oregon judge ordered Portland State University to show cause why it shouldn’t be held in contempt for harassing a former student after bankruptcy.

Court records show the former student owed PSU unpaid tuition for classes in fall 2010. The University admits the former student never attended its classes, and University policy prohibited him from dropping them.

Rather than deny the harassment, PSU instead argued that its unpaid tuition was actually a “loan” that survived bankruptcy. Read the University’s response.

Bankruptcy Discharge of Student Loans Oregon Bankruptcy CourtStudent loans are often an exception to the fresh start provided by the Bankruptcy Code. Under § 523(a)(8), student loans are only discharged for borrowers facing undue hardships. Read more about how to wipe out student loans in Oregon bankruptcy courts.

In court, PSU’s attorney relied on its contractual language stating “if I am a student, any credit extended to me is an educational benefit or loan.”

In his motion, the former student cited court rulings from across the country that say unpaid tuition for unattended classes is not considered a student loan under the Bankruptcy Code. Read the former student’s motion for contempt.

Related articles:

Kanas court rules unpaid tuition is not a student loan

Portland teacher gets day in court against collector that harassed him

A preliminary hearing is set for July 6 in Portland Bankruptcy Court. Case No. 11-40345-tmb7.

How do I find my student loans?

Student Loans

ANSWER: Check the federal student loan data system and get your free credit reports.

Filing Student Loan Complaint in Oregon Bankruptcy CourtFind Your Student Loans

Your federal loans are listed in the National Student Loan Data System. You will need a PIN to check the federal system. Your private loans are usually listed on your credit report.

You are allowed to download your credit reports one time each year for free from annualcreditreport.com.

You must list each of your student loan companies on your bankruptcy complaint. If your loans have been transferred to various servicers over the years, list each one. If your student loan company isn’t listed in your complaint, the judge can’t wipe out its debts.

 

Student Loans List Forgive in Oregon Bankruptcy Court

Oregon Bankruptcy Court

Oregon Bankruptcy Court Represent Yourself

QUESTION: Can Oregon bankruptcy court really wipe out my student loans?

ANSWER: Yes, if you qualify for the undue hardship exception. Our mission is to help you fight back. We realize people who can’t afford student loans can’t afford attorneys. We’re tired of seeing honest but unfortunate borrowers lose to billion-dollar student loan corporations.

This website, and the free 84-page Oregon Student Debt guide, are a pro bono project by Portland attorney Michael Fuller.

Oregon Bankruptcy Court Pro Bono Attorneys

First, find all your student debts. Second, take the student loan quiz. Third, file a complaint in bankruptcy court seeking student loan forgiveness.

Your complaint should explain every box you marked on your quiz. At a minimum, you must prove the following three facts at trial:

  1. You have no money left over each month to pay your student loans
  2. Your money problems aren’t going to get any better in the future
  3. Over the years, if you ever had extra money, you put it toward your student loans

 

Bankruptcy Case Number

Forgive Student Loans in Oregon Bankruptcy CourtBefore filing for student loan forgiveness, you must get an Oregon bankruptcy court main case number. Oregon bankruptcy court has locations in Portland and Eugene. For general information, call the court at 503-326-1500. Click here for official Oregon bankruptcy court forms.

After you have a bankruptcy court case number, file your complaint and send it to your student loan companies. At trial, you must explain and prove the boxes you checked on your quiz.

You can get a bankruptcy case number yourself, or through legal aid, or with the help of a pro bono attorney.

Represent Yourself in Oregon Bankruptcy Court

Filing Student Loan Complaint in Oregon Bankruptcy CourtIf you can’t find an attorney to help, don’t worry. A 2012 study found that people who represented themselves in bankruptcy were just as likely to get student loan forgiveness as people who had an attorney.

The study concluded that, “Ultimately, it seems the bankruptcy filers’ lack of accurate knowledge of the system is the main problem.”

The rules about discharging student loans in Oregon bankruptcy court can be difficult to understand at times. Luckily, the court should strictly construe the rules in your favor and against your lender. This means that in a case of a close call, the court may see it your way.

Lastly, try not to worry. A 2015 report said that student loan debt is now greater than car loans and credit cards. You are not alone, and our experience, these things have a way of working out.

Brunner Test

Brunner undue hardship test Oregon bankruptcy court

QUESTION: What is the Brunner test?

ANSWER: The Brunner undue hardship test is the exclusive method used in Oregon to qualify for the undue hardship exception.

Marie Brunner filed bankruptcy in 1983. She asked the court to wipe out her student loans. The judge granted her request because she couldn’t find work in New York City. The student loan company appealed. She couldn’t afford to hire an attorney to represent her. She lost twice on appeal. The three part test used in her case came to be known as the Brunner test.

Brunner Test in Oregon

In 1987 the Ninth Circuit (which includes Oregon) adopted the Brunner test as the only way to wipe out student loans.

In order to qualify, you must prove: (1) you cannot, based on your current income and expenses, maintain a minimal standard of living for yourself or your dependents if required to repay your student loans, (2) additional circumstances exist which make it likely that your state of affairs satisfying the first prong will persist for a significant portion of the repayment period, and (3) you have made good faith efforts to repay your student loans.

Save for retirement discharge student loans Oregon bankruptcy courtOn Appeal

In October 2015, a Wisconsin borrower filed an appeal with the United States Supreme Court challenging the Brunner test. The borrower argued the test was unfair and asked the court to adopt a less rigid ‘totality of the circumstances’ test. As of the date of this post the Supreme Court has not agreed to hear the appeal.

Until the Ninth Circuit or Supreme Court rules otherwise, Brunner is the exclusive test used by Oregon bankruptcy courts to determine whether an undue hardship exists.

Buying a New Car

New Car Student Loans Discharge Bankruptcy Oregon

QUESTION: Can I own or lease a new car and still meet the first Brunner prong?

ANSWER: You can buy a new car and still wipe out your student loans. However, your car must be economical. Avoid driving luxury cars or sports cars.

Be prepared to explain to the court why you need a reliable car to drive to work or take your kids to school. Be prepared to explain why you can’t take the bus instead.

Brunner undue hardship test Oregon bankruptcy courtNew Car Warranty and Mileage

Does your car payment include a warranty plan? Does your car get good gas mileage? These are all questions you should ask yourself before buying choosing the right car to buy.

You should also consider the added expenses of owning a car. Is public transit a smarter choice when you consider your car payment, warranty payment, general expenses and upkeep, gas, and full coverage insurance?

Retirement Savings

Retirement savings forgive student loans Oregon bankruptcy court

QUESTION: Can I have retirement savings and still meet the first Brunner prong?

ANSWER: Retirement savings may not be possible if you are having trouble paying your student loans. The court is more likely to forgive your student loans if you are not putting money away each month.

Retirement Savings Factors

Filing Student Loan Complaint in Oregon Bankruptcy CourtIf you are putting money away, be prepared to explain the following to the court:

  • why you need savings at your age
  • how you can justify saving money based on your income
  • what year you plan to retire
  • how much savings you already have
  • why your savings should not be used to care for your children