The past few years, more and more courts are finding in favor of discharging student loans. Each of these stories shows the trend in court thinking. When available, the court document is given. Use some of the wording found in these cases in your own adversary filing.
- Fern v FedLoan Servicing, U.S. Department of Education, et al., U.S. Bankruptcy Court, Northern District of Iowa, June 22, 2016, Adversary No. 14-09027.
Comment: DOE argued that debtor should be on ICR plan and that anyone can afford $0 monthly payments. Court found that placing plaintiff on ICR would pose an undue burden due to the mounting indebtedness over 20-25 years and her inability to repay when she reached age 55 or 60 (she was 35 years old at the time of filing).
See: Fern v. Fedloan Servicing.2016 emotional cost of bankruptcy.pdf
- McDowell v ECMC (May, 2016) United States Bankruptcy Court,
D. Idaho., Bankruptcy Case No. 10–40845–JDPAdv. Proceeding No. 14–08005–JDP
- McCaskill v. Navient Solutions, Inc., No. 8:15-cv-1559-T-33TBM (M.D. Fla. April 6, 2016) Navient Solutions, Inc. and Student Assistance Corporation (SAC) got sanctioned by a federal district court for violating the Telephone Consumer Protection Act. McCaskill is entitled to $500 for each violation, which adds up to $363,500.
- Robert Murphy v ECMC (2016) After appeal before the 1st Circuit. ECMC agreed to a complete discharge. ECMC had previously won in the two lower courts.
- Precht v. United States Department of Education, AD PRO 15-01167-RGM (Bankr. E.D. Va. Feb. 11, 2016 (Consent Order).
- Barrett v. U.S. Department of Education Loan Servicing Center, et al. (In re Kevin F. Barrett), 26 CBN 374, 2016 WL 549377 (Bankr. N.D. Cal. 2/10/16)
See: Kevin Francis Barrett, Website July 13, 2016.pdf
- Abney v. U.S. Dept. of Educ., 540 B.R. 681 (Bankr. W.D. Mo. 2015).
Comments: Under the Eight Circuit’s totality of the circumstances test, debtor proved by a preponderance of the evidence that not discharging his student loans under 11 U.S.C.S. § 523(a)(8) would impose an undue hardship on him and his dependents; -Debtor was maximizing his earnings potential, and his future financial resources were not likely to improve significantly; -He had essentially no savings for retirement; -His expenses were exceptionally modest; -He had good and sufficient reasons for filing bankruptcy apart from his student loans; -He made every humanly-possible effort to pay his child support and student loans, to the point of riding a bicycle to work and living out of his employers' trucks and homeless shelters; -Availability of the Income-Based Repayment Program (IBRP) was of no help to his current or future situation.
See: Abney v. U.S. Dept. of Education (Bank.r. W.D.Mo. 2015).pdf
- Acosta-Conniff v. ECMC, Case No. 12-31448-WRS, 2015 Bankr. LEXIS 937 (M.D. Ala. March 25, 2015).
- DaLaet v, National Collegiate Trust, 2015, WL 850629 (Bank. D. Neb February 15, 2015).
See: DeLaet v National Collegiate Trust Opinion, 2015.pdf
- In re: George A. Johnson and Melanie Raney-Johnson, Debtors. George A. Johnson and Melanie Raney-Johnson, Plaintiffs, v. Sallie Mae, Inc., and Educational Credit Management Corporation, Defendants, Case No. 11-23108, Adv. No. 11-6250,United States Bankruptcy Court for The District of Kansas, 2015, Bankr. LEXIS 525.
- In Re Nightingale No. 13-10834, Adversary No. 13-02060. United States Bankruptcy Court, M.D. North Carolina, Greensboro Division.
April 20, 2015.
- Kelly v. ECMC, et al. (“Kelly I”), Adv. No. 2:10-ap-01681, judgment (Bankr. W.D. Wash., Jul. 18, 2011); ECMC, et al. v. Kelly (“Kelly II”), No. 2:11-cv-01263, order (W.D. Wash., Apr. 20, 2012); Kelly v. Sallie Mae, et al. (“Kelly III”), No. 12-35377, slip op. (9th Cir., Feb. 27, 2015).
- Conway v National Collegiate Trust (2014) 8th Circuit.
See: Conway v National Collegiate Trust (2014).pdf
- In re Lamento, 520 B.R. 667 (Bkrtcy. N.D. Ohio 2014).
See: Lamento BK, ND Ohio, 2014.pdf
- Blanchard v. New Hampshire Higher Education Assistance Foundation, U. S. Bankruptcy Court District of New Hampshire, Adv. No. 13-1038-JMD, August 14, 2014.
- In re Roth, 490 B.R. 908 (9th Cir. BAP 2013).
Comment: Note, in Roth v Educational Management Corporation the Bankruptcy appellate Panel of the Ninth Circuit Court of Appeals concluded that Roth had complied with the Brunner test’s third prong requiring that debtors show good faith with regard to their student loan repayment obligations, even though Roth had never made a single voluntary payment in over a period of approximately 20 years. The court concluded that Roth had shown good faith simply by living frugally and attempting to maximize her income over the years. See 490 B.R. 908, 292 Ed. Law Rep. 944 (9th Cir. BAP 2013).
Roth AP Complaint 2010.pdf
RothV ECMC opinion-FINAL AZ-11-1233.pdf
- Krieger v. Educational Credit Management Corporation, 713 F.3d 882 (6th Cir. 2013).
- Hedlund v. The Educ. Resources Inst., Inc. & Pa. Higher Educ. Assistance Agency, 718 F.3d 848 (9th Cir. 2013).
See: Hedlund, BAP Opinion 2013.pdf
- In Re Wolfe Case No. 8:11-BK-10760-MGW. Adv. Pro. No. 8:11-AP-638-KRM, 501 B.R. 426 (2013), Florida.
- Shaffer v. U.S. Department of Education, 481 B.R. 15 (8th Cir. BAP 2012)
- In re Scott, 417 B.R. 623 (Bankr. W.D. Wash., 2009).
- Christian D. MENDOZA, Chapter 7, Debtor. Christian D. Mendoza, Plaintiff, Educational Credit Management Corporation; Hemar Insurance Corporation of America, Defendants. Case No.-01-53238-MM. Adversary No. 01-5283. United States Bankruptcy Court, N.D. California. June 20, 2007
- Carnduff v Department of Education BAP No. WW-06-1200-MoSPa (2007) United States Bankruptcy Appellate Panel of the Ninth Circuit
Comment: A young married couple with over $350,000 in student loans had the debt discharged due to the impossibility of ever servicing such a large debt.
See: Carnduff v DOE (2007).pdf
- In re Lorna Nys, 446 F.3d 938 (9th Cir. 2006).
Comment: Court developed a list of “additional circumstances” under the second prong of the Brunner test that would qualify to determine undue hardship and that proving “exceptional circumstances” was unnecessary.
See: Nys (2004).pdf