QUESTION

Can student loan debt be discharged in the case of financial hardship?

Asked on Feb 15th, 2011 on Bankruptcy - California
More details to this question:
I am a physician and while I have a decent income 200,000/year I have a huge amount of debt. I have 186,000 in student loan debt, 56,000 in credit card and Line of Credit debt, 10,000 in auto loan debt and I pay about 4300 a month in Child Support. In addition my children live in Canada and I have visitation rights where they stay with me 10 days a month and have about 2200 a month in expenses related to rent and travel to Canada in order to be with them. I basically have no assets, no property. If I can not do something about my debt I may have to stop travelling to Canada and give up my visitation rights which I absolutely do not want to do. Do I have any options?
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5 ANSWERS

Bankruptcy Attorney serving Orange, CA at Goodman & Dicus LLP
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A student loan, unlike the other types of debt you mentioned, is not dischargeable unless you can show "undue hardship." To discharge your student loan on the basis of undue hardship, you must file a separate action in the bankruptcy court (a Complaint to Determine Dischargeability of Student Loan) and obtain a court ruling in your favor on this issue. When determining whether hardship exists, courts use one of two tests (depending on where the court is located). Courts look at either: 1) Poverty (current and future employment), persistence (you must show your current financial situation is likely to continue for a significant part of the repayment period), and good faith (you must prove you'd made a good faith effort to repay the debt) or 2) The totality of the circumstances, which essentially means the court will consider all the facts it deems relevant in deciding whether undue hardship exists. Generally, courts look for reasons to deny student loan discharges.
Answered on Feb 18th, 2011 at 11:22 AM

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William C. Gosnell
Student loans are now non-dischargeable Hire a lawyer. You should file a Chapter 13 to repay your debts over a 60 month period. This would reconstitute your debts into lower payments.
Answered on Feb 16th, 2011 at 2:14 PM

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judith runyon
Student Loans are not a dischargeable debt in bankruptcy. You can file a Motion for a hardship discharge of them, but it is extremely unlikely that you would be successful, because you are employed, are not dying, etc. There is a 5 prong test you would have to meet in order for the court to determine you can't pay the debt back.
Answered on Feb 16th, 2011 at 2:13 PM

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Alternative Dispute Resolution Attorney serving Ventura, CA at Zahn Law Office
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Your educational loans are generally not dischargeable, nor is your child support obligation. Credit cards and other unsecured debt, however, may be dischargeable. Your number one issue, however, is that you likely do not qualify for a chapter 7 bankruptcy as you are well over the median income. A chapter 13 filing may allow you to get a handle on your debt however, and the court does have authority to convert your chapter 13 to a 7 if it believes it is appropriate to do so.
Answered on Feb 16th, 2011 at 2:12 PM

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Bankruptcy Attorney serving Hayward, CA at Carballo Law Offices
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No. Your ability to make a living has to be impaired permanently, usually due to disability, and you have to go through a long process of trying to pay and make arrangements for payments to the best of your ability. You have to give up all the luxuries. You got your M.D. with student loans and it is only fair that you pay for that unless it is impossible to do that and maintain a minimum living standard. With that kind of income you probably should consider hiring a financial consultant because you have a budgeting problem. Maybe you can talk to a bankruptcy attorney about the possibility of a Chapter 13 to structure your debt. Because of your income you will probably end up making a substantial plan payment over five years but it will give you time to work out thing financially instead of being sued and having your income garnished. Good luck.
Answered on Feb 15th, 2011 at 1:13 PM

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