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WILTON'S
DISCHARGING STUDENT LOANS
IN BANKRUPTCY

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TABLE OF CONTENTS

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RELEASE 2014 # 1 SKU 107-A

EXPECTED RELEASE DATE JAN 15 2014


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 ABOUT THIS BOOK

Edition 2013

Published By
KING BANKRUPTCY PRACTICE SERIES

Discharging Student Loans addresses various remedies for handling student loan debts, including the Fair Debt Collection Practices Act, and administrative hardship, but with an emphasis on bankruptcy discharge.

The issue of undue hardship is explored in depth, with guidance on how to establish this case in bankruptcy court.

The key steps and issues involved in an adversary proceeding to determine discharge are explained.

Other key issue are explored, including differences between private and public funded loans, full and partial discharge, and negotiated settlements including principal write down.

For more on the substance of this new book see the table of contents, below.

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ABOUT THE AUTHOR

CHRISTINE A. WILTON
Of the California Bar

Christine A. Wilton practices law in Los Angeles and Orange Counties, California.

Her practice centers her private practice on Consumer Bankruptcy, litigation in bankruptcy, debt settlement and debt collection practice act claims, fair credit reporting act claim, and mortgages.

Christine is the author and publisher of the Los Angeles Bankrutpcy Law Monitor; a discussion on consumer bankruptcy issues relevant to California, and is acting President of Pacific Coast University School of Law Alumni Association.

She received her Juris Doctor from Pacific Coast University School of Law (2005), and undergraduate degree from California State University, Long Beach (B.A. 1989), where she studied Speech Communication.  She is admitted to practice law in California and before the United States District Court, Central District.

She was recently successful at trial in discharging approximately $57,000.00 in student loan debt for her clients.

On August 2 2013 Christine hosted the King Bankruptcy Academy Friday Teleconference on the topic, Discharging Student Loans.

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DISCHARGING STUDENT LOANS

TABLE OF CONTENTS

I .  First Things First

INTRODUCTION:           

Current state of affairs shows that student loan debt is a ticking time bomb.

Student Loans: A Debt Problem that Won't Go Away after BAPCPA

A.  Considerations in taking on student loan issues.

1.  Federal v. Private Loans, State Loans;

 Separating the herd

2.  The Players:  Lender, Servicer and

 Guarantor

3.  Analysis in light of Client's Goals

4.  Are the Loans in Default? 

B.  FDCPA Applies

II.  Federal Loans:  

A.  Their May Be Hope Without a Bankruptcy Case

1.  IBR and ICRP Repayment

2.  Review for Administrative Hardship Discharge

3.  Default Rehabilitation

a.  Consequences of Default

b.  Curing Default

III.  Private Student Loans:        

A.  What about Private Student Loans?

1.  Statute of Limitations
a.  Federal Loans&emdash;No SOL

b.  Private Loans&emdash;Yes, 6 years in Ca

2.  Any other remedies?

a.  Survival is about finding the payment plan that fits the budget.

b.  Public service loan forgiveness

*  Must have Qualifying Employer

*  Make 120 payments under IBR/ICR

 *  After 10 years loan forgiven and is tax free

c.  Administrative Discharge For:  Total and Permanent Disability, death, closed school and false certification

IV.  Bankruptcy Options 

A.  Nature of Student Loan Debts and Proper Bankruptcy Administration

1.  Even though student loan debt is generally not dischargeable, it is not a priority debt and thus must be listed on Sch. F with general unsecured creditors.

2.  Graduate loans are non-consumer debts.

B.  Adversary Proceedings

1.  Undue Hardship Test

2.  Case Updates By the Prongs

3.  Encouraging News For Seekers of Student Loan Discharge

a.  Student Loans are rarely discharged in bankruptcy because Debtor's [nor their counsel] seek their discharge.

b.  Outcomes range from Full Discharge; Partial Discharge; Negotiated Settlement including principal write down.

4.  Testimony and Evidentiary Considerations

a.  Medical Hardship is a Strong Predictor of Whether a Debtor would receive a discharge.
i.   Physical disability, Mental illness, and chronic disease.

ii.  Debtor can obtain and testify as to their own medical records.

b.  Unemployment and low income immediately preceeding

i.  Income conditions speak to debtor's current inability to repay under Prong I and under Prong III, if debtor can demonstrate they she has maximized income and minimized expenses in support of good faith effort to repay.

C.  Chapter 13 Considerations

1.  Student loans in a Chapter 13 Plan
a.  Are 1322(b)(1) and 1322(b)(5) connected? Most courts say yes.

b.  Unfair Discrimination: What does it mean?

c.  Can debtors make payments outside the plan too?

d. Creating a Plan that pays the student loans and keeps them current.

e.  The answer lies "Ösomewhere between total whim and an Act of God" says In re Hill, 4 B.R. 694, 697-698 (Bankr.D.Kan. 1980)

V.  Solutions To Consider

A.  In light of client's goals we seek an affordable payment plan

1.  Bankruptcy forever

2.  Other ideas

B.  Resources and Websites

 


© King Bankruptcy Media 2013