Friday, February 26, 2016

Student Loan Debtors and the Presidential Race: Hillary still has an opportunity to win over young voteers

Hillary Clinton devastated Bernie Sanders in the South Carolina Democratic Primary election. As Bernie candidly admitted, the Sanders team was "decimated." The only good news, he said, was this: Bernie beat Hillary among voters age 29 and younger.

Hillary talks herself hoarse telling voters how much she has done for them and much more she will do if she is elected President. But young people don't buy it. Essentially, they see her as an elderly political hack who sucks up to the banks.

But Hillary can still make headway with young voters if she would only promise some tangible and substantive reforms to the student-loan program. After all, there are 43 million Americans with outstanding student-loan debt; and most of them are young.

What could she promise? How about this:

1) "If elected president, I will instruct the IRS to draft regulations specifying that forgiven student-loan debt is not taxable."  

Under current law, about 4 million people are in income-based repayment plans, and most of them are seeing their total debt grow larger with each passing month due to accruing interest. When they complete their long-term repayment plans (after 20 or 25 years), their loan balances will be forgiven, but the forgiven amount will considered taxable income by the IRS. This is a real problem for people in income-based repayment plans. Why not just fix that problem with an IRS regulation?

2) "If elected president, my Department of Education will enact regulations that will cut off federal funding to any for-profit college that forces students to sign a promise not to sue the college for fraud or misrepresentation. And I will instruct the Department of Justice to cooperate with State Attorney Generals who are investigating and suing for-profit colleges that exploit students."

This promise demonstrates nothing more than common decency and would be well received by young people.

3) "When I am your president, the government will stop garnishing Social Security checks of elderly student-loan defaulters. And my administration will not oppose bankruptcy relief for elderly student-loan defaulters who are living below the poverty level."

There is nothing radical about this proposition. In fact, last month, in Precht v. U.S. Department of Education, DOE agreed to bankruptcy discharge of an elderly person's student-loan debt and stopped garnishing his Social Security check.

4) "My administration will renegotiate all contracts with student-loan debt collectors like Educational Credit Management Corporation. All these entities will be required to disclose the salaries of their executives and employees. They will also be required to disclose their profits. And I will eliminate the penalties and fees that the collection agencies have been charging distressed student-loan borrowers."

The beauty of these promises is this. All the reforms I listed could be implemented by President Hillary Clinton on the day she takes office. None of them require congressional approval.  And even if they did require statutory changes, what federal legislator would say no to these modest reforms if President Hillary asked for them?

If Hillary made these promises, she would demonstrate that she understands the magnitude of the student-loan crisis and that she  plans to take energetic action to grant some relief.  But my prediction is this: Hillary won't promise any substantive reforms of the student loan program because Goldman Sachs and the banks would disapprove. And that--in a nutshell--is why young people are not voting for Hillary.

References

Natalie Kitroeff. Loan Monitor is Accused of Ruthless Tactics on Student Debt. New York Times, January 1. 2014. Accessible at http://www.nytimes.com/2014/01/02/us/loan-monitor-is-accused-of-ruthless-tactics-on-student-debt.html?_r=0

Stephen Burd. Signing Away Rights. Inside Higher Ed, December 17, 2013. Available at https://www.insidehighered.com/views/2013/12/17/essay-questions-mandatory-arbitration-clauses-students-profit-higher-education

Ashley A. Smith. U.S. Urged to Deny Aid to For-Profits That Force Arbitration. Inside Higher Ed, February 24, 2016. Available at: https://www.insidehighered.com/quicktakes/2016/02/24/us-urged-deny-aid-profits-force-arbitration?utm_source=Inside+Higher+Ed&utm_campaign=183bc9e3a3-DNU20160224&utm_medium=email&utm_term=0_1fcbc04421-183bc9e3a3-198565653

Thursday, February 25, 2016

Loan forgiveness for college students defrauded by for-profit colleges: Why not simply allow defrauded students to take bankruptcy?

The Department of Education is revising the regulations for handling student-debtor requests for debt relief. Under present regulations, student-loan borrowers  are eligible for debt relief if they can show they were victims of misrepresentation by the institution they attended.

But the old regulations are cumbersome, and DOE has been swamped by debt relief requests after Corinthian Colleges closed last year. Corinthian had 350,000 students or former students.

Apparently, the Department of Education is proposing some sort of hearing process where students who claims to be fraud victim can confront the colleges that lured them into enrolling and taking out student loans.

But how will that work? All the for-profit colleges have teams of lawyers, and the defrauded students who confront them at hearings will likely  have no lawyer at all.  That's a crumby idea.

Second, DOE is contemplating some kind of statute of limitation that would bar a student's fraud claim if not filed by some yet-to-be-defined time limit. Another crumby idea. Student-loan creditors can pursue student-loan defaulters any time they want--30 years after a loan was incurred if they choose. That's because there is no statute of limitation on debt collection of a student loan. So why should students be restricted by a time limit to file misrepresentation claims?

Third, the proposed regulations are cumbersome legalese that many students won't understand. Here is a sample of proposal's text:
For loans first disbursed prior to July 1, 2007, the borrower may assert as a defense to repayment, any act or omission of the school attended by the student that relates to the making of the loan or the provision of educational services that would give rise to a cause of action against the school under applicable State law.
Got that?

If the Department of Education were willing to face facts, it would admit that millions of students who enrolled at for-profit colleges have valid misrepresentation claims.  The for-profit industry as a whole has a 5-year default rate of 47 percent--strong evidence that many of the programs the colleges offered did not lead to well-paying jobs.

Rather than construct an elaborate, expensive, and unworkable administrative process for sorting out student fraud claims, the Department of Education should simply allow all students who attended a for-profit college and who are now broke to discharge their student-loan debts in bankruptcy without having to meet the "undue hardship" standard that currently applies to student-loan debtors in the bankruptcy courts. In other words, an insolvent student-loan debtor who attended a for-profit college should be able to discharge student-loan debt in bankruptcy like any other nonsecured debt.

After all, the bankruptcy courts have the expertise and the resources to sort out valid bankruptcy claims from invalid ones.  But DOE won't expedite the loan forgiveness process because it knows that millions of people took out student loans for worthless college experiences. If every student who was huckstered by a for-profit college obtained student-loan debt relief, the cost of loan forgiveness would amount to hundreds of billions of dollars.

References

Michael Stratford. Obama Crackdown on College Fraud. Inside Higher Ed, February 9, 2016. https://www.insidehighered.com/news/2016/02/09/education-department-creates-new-office-crack-down-fraud-colleges?utm_source=Inside+Higher+Ed&utm_campaign=8bca58981a-DNU20160209&utm_medium=email&utm_term=0_1fcbc04421-8bca58981a-198565653

Michael Stratford. New Criteria For Debt Relief. Inside Higher Ed, February 17, 2016. Available at: https://www.insidehighered.com/news/2016/02/17/us-plan-would-cancel-federal-loans-borrowers-misled-their-colleges?utm_source=Inside+Higher+Ed&utm_campaign=60a80c3a41-DNU20160217&utm_medium=email&utm_term=0_1fcbc04421-60a80c3a41-198565653

Kelly Field, "U.S. Has Forgiven Loans of More Than 3,000 Ex-Corinthian Students, Chronicle of Higher Education, September 3, 2015. Accessible at: http://chronicle.com/article/US-Has-Forgiven-Loans-of/232855/?cid=pm&utm_source=pm&utm_medium=en

Tamar Lewin, "Government to Forgive Student Loans at Corinthian Colleges," New York Times, June 8, 2015. Accessible at: http://www.nytimes.com/2015/06/09/education/us-to-forgive-federal-loans-of-corinthian-college-students.html?_r=0

Adam Looney & Constantine Yannelis, A crisis in student loans? How changes in the characteristics of borrowers and in the institutions they attended contributed to rising default rates. Washington, DC: Brookings Institution (2015). Accessible at: http://www.brookings.edu/about/projects/bpea/papers/2015/looney-yannelis-student-loan-defaults


Wednesday, February 24, 2016

Arbitration and For-Profit Colleges: Public Citizen, a consumer group, asks the Department of Education to bar for-profits from forcing students to arbitrate their fraud claims. What a good idea!

Public Citizen, a consumer rights group, formally petitioned the U.S. Department of Education to cut off federal student-aid money to for-profit colleges that force their students to sign arbitration agreements that bar students from suing the colleges for fraud or misrepresentation or from filing class-action lawsuits. Julie Murray, spokesperson for the group, explained Public Citizen's position. "Taxpayers should not have to subsidize predatory schools that deny their students a day in court," Murray said in a press release.

What a good idea! Everyone knows that thousands of low-income and minority students have been lured into enrolling at expensive for-profit colleges by misrepresentations and high-pressure recruiting tactics.  The for-profits have very high student-loan default rates, high dropout rates, and high percentages of students who are seeing their loan debt growing larger because they are forced into economic-hardship deferment programs due to the fact that their post-studies income is not high enough to pay off their student loans.

In fact, as Stephen Burd pointed out in an Inside Higher Ed essay, a for-profit institution's shareholders can sue a for-profit college for misrepresenting job-placement figures while the students themselves cannot.

Arbitration clauses always favor the for-profit industry because the for-profits pick the arbitration company, which gives the arbitrators an incentive to rule in favor of the colleges or at least to go easy on them in order to get "repeat business."  Discovery is often limited in arbitration proceedings, and arbitration can be expensive, since the student must bear part of the arbitrator's cost.

I agree with Mr. Burd, who wrote:
Congress should eliminate this injustice by barring colleges that participate in the federal student aid program from including binding arbitration clauses in enrollment agreements, just as Senators Tom Harkin of Iowa and Al Franken of Minnesota proposed . . . . As [the senators] wrote, "Colleges and universities should not be able to insulate themselves from liability by forcing students to preemptively give up their right to be protected by our nation's laws.
Student-loan debtors--and there are 42 million of you--should ask presidential candidates if they are willing to cut off federal student-aid funding to for-profit colleges that force their students to sign arbitration agreements.   What would Hillary's answer be? Donald Trump's? Bernie Sanders?

References

Stephen Burd. Signing Away Rights. Inside Higher Ed, December 17, 2013. Available at https://www.insidehighered.com/views/2013/12/17/essay-questions-mandatory-arbitration-clauses-students-profit-higher-education

Ashley A. Smith. U.S. Urged to Deny Aid to For-Profits That Force Arbitration. Inside Higher Ed, February 24, 2016. Available at: https://www.insidehighered.com/quicktakes/2016/02/24/us-urged-deny-aid-profits-force-arbitration?utm_source=Inside+Higher+Ed&utm_campaign=183bc9e3a3-DNU20160224&utm_medium=email&utm_term=0_1fcbc04421-183bc9e3a3-198565653


Tuesday, February 23, 2016

Alan Collinge is too pessimistic about bankruptcy relief for student-loan debtors: The Times May Be A-Changin'


Come writers and critics
Who prophesize with your pen
And keep your eyes wide
The chance won't come again
And don't speak too soon
For the wheel's still in spin
And there's no tellin' who
That it's namin'
For the loser now
Will be later to win
For the times they are a-changin'.
Bob Dylan
Alan Collinge wrote an interesting book a few years ago entitled The Student Loan Scam, which I reviewed in the Journal of Law and Education. He is very knowledgeable about the student-loan crisis, and much that he has to say about this problem is useful. Nevertheless, he is far too pessimistic about bankruptcy relief for student-loan debtors.

In an interview with Peter J. Reilly, a Forbes Magazine contributor, Collinge expressed a very bleak view regarding a distressed student-loan debtor's chances in the bankruptcy court. As Reilly summarized Collinge's position, "Alan argued that the chance of bankruptcy relief remains remote, and that the murmurers may be consultants who are engaging in bait and switch." In the interview itself, Collinge said, "Almost no well-versed lawyer will recommend it because of the unlikelihood of winning."

It is true that the Department of Education and its various loan collection agencies have vigorously fought bankruptcy relief for student-loan debtors in almost every case. As Colling observed:
[M]ake no mistake, even for the most destitute borrowers, the Department of Education, ECMC, and the entire lending industry are continuing to pour massive resources into defeating them in bankruptcy court by using shameless fear tactics with the judges, who they pressure ceaselessly--and usually successfully--to make bankruptcy determinations against [ ] these most impoverished individuals rather than for them.
And I think Collinge is also correct to say that so-called "debt coaches" and consultants may be dispensing inaccurate information about bankruptcy relief for the purpose of signing up distressed student-loan debtors in "loan rehabilitation" plans whereby student loans are repackaged into larger loans due to the various fees and penalties that get tacked on to the original principal.

But Collinge is just wrong to disparage the bankruptcy option for discharging student loans. Several bankruptcy courts have ruled with surprising compassion and common sense toward student-loan borrowers in recent years--relieving honest but unfortunate debtors of their student-loan obligations. Remarkably, many student-loan debtors have been successful in the bankruptcy courts even when they went to court without lawyers. Abney v. U.S. Department of EducationAcosta-Conniff v. ECMC, Johnson v. Sallie Mae, and Precht v. U.S. Department of Education--all decided within the last year--are recent victories for student-loan debtors who represented themselves in bankruptcy court.

It is true that some student-loan debtors have lost their cases in the bankruptcy courts. Butler v. ECMC, decided last month, is a particularly heartbreaking case because Brenda Butler's situation was more dire than several student-loan debtors who won their cases. But Roth v. ECMC and Krieger v. ECMC, two appellate-level decisions, are an indication that the federal courts are rethinking their harsh stance toward student-loan debtors.

One thing is certain. Overburdened and insolvent student-loan debtors have nothing to lose by trying to get their student-loan debt discharged in bankruptcy. And it is not helpful or useful to tell people that bankruptcy relief for student-loan debt is nearly impossible.

As Bob Dylan put it,"[D]on't speak too soon for the wheel's still in spin." In other words, the times may be a-changing.

References

Acosta-Conniff v. Educational Credit Corporation, 536 B.R. 326 (M.D. Ala. 2015).

Abney v. U.S. Department of Education, 540 B.R. 681 (W.D. Mo. 2015).

Fossey, R. (2009). Review of The Student Loan Scam: The Most Oppressive Debt in U.S. History—And How We Can Fight Back, by Alan Michael Collinge. Journal of Law and Education, 38, 715-718 (2009). Available at http://www.studentloanjustice.org/fosseybookreview.pdf

Johnson v. Sallie Mae, ., No. 11-23108, Adv. No. 11-6250,  2015 WL 795830 (Bankr. D Kan. Feb. 19, 2015).

Krieger v. Educational Credit Management Corporation, 713 F.3d 882 (7th Cir. 2013).

Precht v. United States Department of Education, AD PRO 15-01167-RGM (Bankr. E.D. Va. Feb. 11, 2016 (Consent Order).

Peter J. Reilly. Interview With Student Loan Activist Alan Collinge On Bankruptcy Protection, Forbes, October 28, 2015. Available at http://www.forbes.com/sites/peterjreilly/2015/10/28/interview-with-student-loan-activist-alan-collinge-on-bankruptcy-protection/#64fa9b7a6438

Roth v. Educational Credit Management Corporation, 490 B.R. 908 (9th Cir. BAP 2013).



Monday, February 22, 2016

Daniel Arbess, Writing In The Wall Street Journal, Says Bernie Sanders Supporters Are Clueless: But It Is the Wall Street Journal That Is Clueless

Daniel J. Arbess, writing in the Wall Street Journal, maintains that American young people who support Bernie Sanders are economically clueless. They blame Wall Street for the nation's financial malaise, Arbess argues, which is misguided. "Don't they realize," he asks plaintively, "that the financial markets are the lubricant of the entire economy--that Wall Street's capacity to provide liquidity and to broker capital is the lifeblood of American companies?"

Actually, Mr. Arbess, America's young people do understand that Wall Street is a lubricant. They've figured out that the global financial industry is a lubricant for raping the middle class.


Arbess seems to believe that young Americans should put their faith in unrestrained capitalism, which will eventually bring us all economic prosperity. But Arbess's own words belie his argument. As he himself says, the underemployment rate for young adults--that is, the percentage of people who are underpaid or working in jobs for which they are overqualified--is 60 percent! And 20 million Americans are burdened by student loans they can't pay back
The political elites, the financial industry, and the mainstream media seem to think Sanders' economic platform is nothing but a pipe dream; but two planks of that platform--universal health care and a free college education--resonate deeply with the young.


Young people know they must obtain useful postsecondary training to get middle-class jobs; and they also know they are being forced to pay far too much to attend a college or a graduate school. And they are coming to grips with the fact that borrowing money to pay for college can sometimes be an economic death sentence since it so difficult to discharge student-loan debt in bankruptcy.  Free college tuition to attend a state institution makes perfect sense to them, and Bernie's plan would actually be cheaper than the Byzantine student-loan program the government is now running.


And young people know that health care costs are eroding their take-home pay. Everyone I know who was forced into Obamacare is unhappy about it. Virtually all of them saw their health insurance costs went up and the quality of their coverage deteriorated. They understand that the United States could offer universal health care on a European model that would be more efficient and far cheaper than the cobbled-together scheme we now have in place that benefits no one but the medical industry and the insurance companies.

The fact that the Wall Street Journal thinks it is appropriate for a hedge fund manager to lecture Americans about the presidential campaign shows us just how clueless that newspaper is.
As for Mr. Arbess himself, I found a recent news story about his financial acumen. According to a 2014 online story in Bloomberg Business, "Perella Weinberg Partners LP is shutting its Xerion hedge fund, after its manager, Daniel Arbess, failed to recoup a 21 percent loss dating from 2011."


So maybe American young people are smarter than Mr. Arbess when it comes to making political decisions that affect their own economic well being.





Perella Weinberg’s Xerion Closing After 2011 Loss Proves Fatal
Mr. Arbess thinks young Bernie supporters are clueless.
References


Daniel J. Arbess. The Young and the Economically Clueless. Wall Street Journal, February 19, 2016. Available at http://www.wsj.com/articles/the-young-and-the-economically-clueless-1455924699


Kelly Bit and Katherine Burton. Peralla Weinberg's Xerion Fund To Close, Return Money. Bloomberg Business News, November 24, 2014. Available at http://www.bloomberg.com/news/articles/2014-11-14/perella-weinberg-s-xerion-fund-to-close-return-money-to-clientshttp://www.bloomberg.com/news/articles/2014-11-14/perella-weinberg-s-xerion-fund-to-close-return-money-to-clients

Friday, February 19, 2016

Let Justice Roll On Like A River: Richard Precht, A Virginia Man Living on $1200 a Month, Won Bankruptcy Discharge of Nearly $100,000 in Student-Loan Debt

But let justice roll on like a river, righteousness like a never-failing stream!
Amos 5:24
On July 7 2015, the Department of Education issued a letter outlining guidelines for determining when the Department and its student-loan collection agencies would not oppose bankruptcy relief for distressed student-loan debtors. DOE listed 11 factors that it would consider, including these:

1) "Whether a debtor is approaching retirement, taking into account the debtor's age at the time student loans were incurred and resources likely to be available to the debtor in retirement to repay a student loan . . ."

2) "Whether a debtor's health has materially changed since the student loan debt was incurred . . . ."

Frankly, I thought DOE's letter was insincere and that DOE would continue to oppose bankruptcy relief for nearly everyone and that it would persist in insisting that virtually every distressed student-loan debtor must be placed in a long-term income-based repayment plan. But I was wrong. 

Last year, Richard Precht, age 68, filed for bankruptcy and asked to have his student-loan debt discharged.  Mr. Precht as it turned out was the perfect person to test whether DOE meant what it said in its  July 2015 letter.  He was living in retirement and was in ill health and was burdened with almost $100,000 in student-loan debt.

In fact, his circumstances were desperate. Mr. Precht was living on a small pension and a small Social Security check, but both were being garnished by the federal government. His total income was only $1,200 a month and he was forced to live with his adult daughter because his income was not sufficient for him to afford housing.

Precht filed for bankruptcy in Virginia, and the federal court system quickly issued a scheduling order that put his case on track for a trial before a bankruptcy judge. Fortunately, Mr. Precht was ready to proceed with his case without delay. He had prepared nearly a thousand pages of exhibits outlining his financial circumstances, his health status, and his loan payment history over the years.

Initially, DOE seem prepared to oppose Precht's petition for relief. DOE's lawyer filed a motion to strike, asking the bankruptcy judge to order Precht to refile his complaint on technical grounds. But fortunately for Mr. Precht, the bankruptcy judge had read DOE's July 2015 letter. 

At the hearing, the judge pointedly asked DOE's attorney what DOE planned to do about that letter. The attorney's candid reply was, "We don't know."

But apparently, the policy makers at DOE considered the matter and decided to do the right thing. A few days after the hearing on DOE's motion to strike, the DOE attorney called Mr. Precht and said the Department would not oppose bankruptcy relief. DOE prepared an order for the bankruptcy judge to sign that relieved Mr. Precht of all his bankruptcy debt--a miracle of almost biblical proportions.

As the prophet Amos said: "Let justice roll on like a river." Mr. Precht won a life-altering victory for himself, and his case points the way for hundreds of thousands of people similarly situated. More than 150,000 elderly student-loan debtors are having their Social Security checks garnished, and millions of people are now in long-term income repayment plans that obligate them to pay on their student-loans until they are in their 70s, their 80s, and even their 90s!

I will write more about this remarkable case in coming weeks. For now it is enough to simply rejoice with Mr. Precht in his victory and to ponder the significance of this important development, which is this: The Department of Education said in a 2015 letter that there were certain circumstances when it would not oppose bankruptcy relief for student-loan debtors. Mr. Precht's recent victory indicates that DOE may have really meant what it said.

References


Lynn Mahaffie, Undue Hardship Discharge of Title IV Loans in Bankruptcy Adversary Proceedings.  U.S. Dep’t of Educ., July 7, 2015, DCL ID: GEN-15-13.
Precht v. United States Department of Education, AD PRO 15-01167-RGM (Bankr. E.D. Va. Feb. 11, 2011 (Consent Order).

Sunday, February 14, 2016

Dear distressed student loan debtors: You should vote for Bernie Sanders because Hillary won't do anything for you unless Goldman Sachs approves

Dear distressed student-loan debtor:

You are not alone. There are about 20 million of you all across America--people in default, in delinquency, in forbearance and deferment plans, or making income-based payments that stretch out over 20 or 25 years.  You need help, and you deserve help.

You will not find help from Congress. The for-profit college industry owns Congress.

You will not find help from the U.S. Department of Education, which makes soothing noises, but has done very little to help overburdened student-loan debtors.

And you will not find help from most of the presidential candidates. Hillary Clinton's so-called student-loan reform plan is basically a scheme to funnel more money to the higher education industry with only token efforts to keep tuition costs down.

But Bernie Sanders' proposal for a free college education at a public institution offers real change. If his plan is enacted and people could get a college education for free, the for-profit industry would shut down and the private nonprofits would be forced to cut their tuition.

I know Bernie's run for the presidency is a long shot. And even if he is elected, his very sensible plan to offer free postsecondary education would never be approved by Congress, which is beholden to the for-profits and the elite private schools that benefit from the status quo.

But if--by some miracle--Bernie is elected President--he could do a lot for distressed student-loan borrowers even without help from Congress.  Here are some things Bernie could do, and I think would do:

1) Direct the Department of Education to adopt regulations prohibiting the for-profit colleges from forcing students to sign "covenants not to sue" as a condition of enrollment.
2) Order the Department of Justice to cooperate with state attorney generals who are suing the for-profit colleges under state consumer-protection laws.
3) Issue an executive order stopping the Internal Revenue Service from garnishing elderly student-loan defaulters' Social Security checks.
4) Direct government attorneys and the DOE's collection agencies to stop opposing bankruptcy relief for deserving student-loan debtors.

Certainly, I don't think Bernie would allow the Department of Education to oppose bankruptcy relief for a quadriplegic debtor whose expenses exceeded his salary, as the Department did recently in Myhre v. U.S. Department of Education.

I don't think President Sanders would permit the government to oppose a bankruptcy discharge for a 40-year old man who is living on $1200 a month and is so broke he has to ride a bicycle to work, as DOE did in the Abney case.

And surely, Bernie's DOE would order debtor collectors like Educational Credit Management Corporation to stop harassing elderly women living on less than $800 a month as ECMC did in the Roth case.

Nor would a Bernie presidency force millions of overwhelmed debtors into long-term repayment plans, as the Obama administration--cheered on by the New York Times and such elite college presidents as Vassar's Catherine Hill--is doing now.

So if you are swamped by your student-loan debt, you better register to vote, and you better vote for Bernie in your state's primary. And you need to find out whether your state has an open primary or whether you have to be a registered Democrat to vote for Bernie.  If you have to be a Democrat to vote in the Democratic primary, change your registeration. That's what I did.

In short, do what you have to do to vote for Bernie Sanders, because Bernie is your only hope of student-debt relief in the political arena.

And remember this: Hillary Clinton has her hands in Goldman Sachs' pocket, and Goldman Sachs has an ownership interest in a company that operates several for-profit institutions--Argosy University, Brown Mackie College and South University.

References

Stephanie Saul. For-Profit College Operator EDMC Will Forgive Student Loans. New York Times, November 16, 2015. http://www.nytimes.com/2015/11/17/us/for-profit-college-operator-edmc-will-forgive-student-loans.html?_r=0

Saturday, February 13, 2016

The Nightingale case: Elderly student-loan debtors need a swifter process for bankruptcy relief

Nightingale v. North Carolina State Education Assistance Authority, decided last month. demonstrates how difficult it is for distressed student-loan debtors to obtain bankruptcy relief--even if they are elderly and in poor health.

The Nightingale case: A 67-year-old retired teacher with chronic health problems seeks to discharge her student loans in bankruptcy

Alice Nightingale took out about $48,000 in student loans when she was in her late 50s to obtain a master's degree that would allow her to obtain a job as a public school teacher. Due to serious health issues, she went on disability leave in 2012 and received monthly disability benefits until she retired in  June  of 2014. After retiring, she lived on an income of $1,645 a month, consisting of Social Security income and state retirement benefits.

In June 2013, Nightingale filed for bankruptcy and received a discharge. She then filed an adversary complaint in the bankruptcy court to discharge her student loans.  North Carolina State Education Assistance Authority (NCSEAA), Nightingale's student-loan creditor, filed for summary judgment in 2014, arguing she was eligible for a long-term income-based repayment plan that would obligate her to pay zero on her student loans. Since paying nothing would not be an undue hardship on her, NCSEAA maintained, Nightingale was not entitled to a bankruptcy discharge.

Fortunately for Nightingale, Judge Benjamin A. Kahn, a North Carolina bankruptcy judge, denied NCSEAA's motion, pointing out that the creditor's reasoning would mean that the people who are most worthy of bankruptcy relief could never get it. Furthermore, the judge pointed out,"Participation in such a 'repayment' program in which [Nightingale's]  monthly payment is zero is not repayment at all; rather, the loan continues to accrue interest on the principal without any repayment. At the end of the twenty-five year period, [Nightingale's] loans may be forgiven, but that amount, on which interest has been accruing, may become taxable as income."

The case then went to trial, and Judge Kahn entered his decision on January 16, 2016. The judge ruled that Nightingale met two prongs of the three-pronged Brunner test. First, she could not pay back her loans and maintain a minimal standard of living. Indeed, Judge Kahn ruled, "the unrebutted evidence demonstrated that [Nightingale] is currently incapable of making any material payment on the debts while maintaining a minimal standard of living."

Brunner's second prong required Nightingale to show that she had made good faith efforts to pay back her loan.  Judge Kahn ruled that she met this prong as well. Nightingale had paid about $11,000 on he loans and was currently making income-based payments of $133 a month.

To obtain a bankruptcy discharge of her student loan, Nightingale was also required to pass the third-prong of the Brunner test by showing that exceptional circumstances prevented her from paying back her student loans in the future. In other words, she was obligated to show a "certainty of hopelessness" regarding her long-term financial circumstances.

Judge Kahn admitted that Nightingale's testimony supported a finding of exceptional circumstances. "Nightingale is elderly, has no job prospect in the field for which she was educated, lives on a meager budget, relies upon friends and family to provide shelter, and testified that she has additional medical disabilities that prevent her from returning to gainful employment." In fact, NCSEAA agreed that Nightingale's current situation was dire "and that she is barely able to remain healthy and in affordable housing, much less hold down a job."

But Judge Kahn ruled that Nightingale's own testimony about her chronic health problems was insufficient to show long-term financial distress without corroborating evidence. The judge indicated that corroborating evidence in the form of a letter from Nightingale's doctor about her health status would probably be sufficient and gave her 14 days to produce such a letter or other corroborating evidence of her health problems.

What is the significance of the Nightingale decision?

The Nightingale decision is significant for two reasons. First, Judge Benjamin Kahn flatly rejected a student-loan creditor's argument that Nightingale was ineligible for bankruptcy relief because she could enroll in a long-term income-based repayment plan that would require her to pay nothing due to her limited income. Had Judge Kahn adopted NCSEAA's argument, no student-loan debtor would be eligible for bankruptcy relief, at least not in Judge Kahn's court.

Second, the Nightingale decision demonstrates the difficulty distressed student loan debtors have when trying to discharge student loans in bankruptcy. First, Nightingale had to defeat NCSEAA's summary judgment motion, which took months to resolve. Second, she was required to round up corroborating evidence of her chronic health problems.

In many circumstances, it is entirely appropriate for a bankruptcy judge to require a student-loan debtor to provide proof of chronic health issues. As Judge Kahn correctly observed, when health problems are not obvious, corroborating evidence is necessary to avoid the possibility of fabrication and fraud.

But Alice Nightingale is 67 years old! She went on disability leave until she retired in 2014 and now lives on an income of only $1645 a month. Why was it necessary for her to provide corroborating evidence that chronic health issues prevent her from increasing her income in the future?

I don't mean to be too hard on Judge Kahn. He was obviously sympathetic to Nightingale's situation. After all, he denied NCSEAA's motion for summary judgment, and he gave Nightingale time to provide supporting evidence of her chronic health problems.  I feel sure the judge will ultimately discharge Nightingale's student-loan debt.

Nevertheless, when an elderly person living on a small pension and a Social Security check comes into bankruptcy court to discharge her student loans, I believe she is entitled to a speedy discharge. Unfortunately for Alice Nightingale, her adversary proceeding lasted more than two years. And her case may still not be behind her. If Judge Kahn discharges her student-loan debt, as seems likely, NCSEAA may appeal.

References

Nightingale v. North Carolina State Educ. Assistance Authority, 543 B.R. 538 (Bankr. M.D.N.C. 2016) (ruling requiring Nightingale to provide corroborating evidence of her chronic health problems).

Nightingale v. North Carolina State Educ. Assistance Authority, 529 B.R. 641 (Bankr. M.D.N.C. 2015) (ruling on NCSEAA's motion for summary judgment).

Wednesday, February 3, 2016

Hillary Clinton's plan to help student-loan debtors is baloney. Bernie's plan shows promise.

Bernie Sanders is breathing down Hillary Clinton's neck in the New Hampshire primary election, and suddenly she's become the college student's best friend.  But her plan to help college students pay for college falls far short.

Essentially, she has cobbled together a host of  small-ball ideas and plans to spend $350 billion over the next ten years, using most of the money to encourage state governments to offer more affordable college options. And she also wants to lower student-loan interest rates and expand long-term repayment programs.  Don't worry, Harvard and University of Phoenix. You'll still get your cut.

All the leading presidential candidates know that young people are worried about college costs and student loans, and they've all proposed plans that will supposedly help relieve the financial burden on  college students.

But no plan is worth anything unless it addresses the suffering that students and former students are experiencing right now.  A good reform plan must contain these elements:
  • Kick the for-profit colleges out of the federal student loan program.
  • Amend the Bankruptcy Code to allow distressed student-loan debtors who acted in good faith to discharge their loans in bankruptcy.
  • Abolish unconscionable fees and penalties on student-loan debt.
  • Stop garnishing Social Security checks of elderly people who defaulted on their student loans.
  • Stop pushing borrowers into 20- and 25-year repayment plans.
  • Stop lending money to allow people to enroll in overpriced postsecondary programs that will never pay off---law programs at third-rate schools, overpriced MBA programs, overpriced liberal arts degrees, overpriced online programs, etc.
Has Hillary talked about any of those things? No she has not. Her proposal takes care of her key constituents--the pompous, lazy, and overpriced college industry. It doesn't do anything for the  millions of  people who can't pay back their loans.

Bernie Sanders, on the other hand, has proposed a simple plan that will address at least some of the issues I identified. He basically proposes to offer everyone a free four-year college education at a public college. Vassar College president Catherine Hill said in a New York Times essay that  she opposes this idea, which she says will cost about $30 billion a year.

But that's cheaper than Hillary's plan.

And here's the beauty of Bernie's scheme. If everyone could go to college free, no one would enroll at a for-profit college; and these sleazy institutions would have to close their doors.  That's a big plus.

Moreover, private colleges like Vassar would probably have to lower their tuition. Few people would borrow a quarter of a million dollars to go to a fancy private school if they could enroll in a good state university and pay nothing. No wonder Vassar's president opposes the idea.

And if college is free, people won't be borrowing money to go to college. They won't run the risk of default, of paying huge default penalties, or of being driven into 25-year repayment plans.

So what's not to like?  Especially when you consider that the government is spending $165 billion a year right now on the federal student loan program, which is nothing but a train wreck.  Bernie's idea may seem hare-brained, but it is actually the only proposal put forward by any of the presidential candidates that makes sense.

Bernie's plan won't solve the student-loan crisis completely. About 40 percent of student-loan money is going for graduate education. We've got to get tuition costs down at the law schools, the business schools, and all the professional schools. We've got to quit turning out too many lawyers, veterinarians, and MBAs.  And we've got to forgive the student-loan debt that has buried millions of people.

But Bernie's plan is a start. It will at least deal with the student-loan crisis at the undergraduate level.

References

Mitchell D. Weiss. What's Missing From Clinton Student Loan Plan. USA Today, August 15, 2015. http://www.usatoday.com/story/money/personalfinance/2015/08/15/credit-dotcom-hillary-clinton-student-loan-plan/31456547/

Distressed Student-Loan Debtors in the Bankruptcy Courts: What Can You Do To Improve Your Odds of Obtaining A Discharge?

Federal bankruptcy courts have decided a number of cases over the years involving student-loan debtors seeking to wipe out their student loans by filing for bankruptcy. In some cases, the courts have discharged people's student loan debt;  and in other cases, the courts have refused a discharge. And the results aren't consistent.

For example, in the Hedlund case, the Ninth Circuit Court of Appeals granted partial relief to Michael Hedlund, a relatively young law-school  graduate who had failed to pass the bar exam. But recently, in the Tetzlaff case, the Eighth Circuit refused to grant relief to an older law-school graduate who had also failed the bar and who had a much larger student-loan debt than Mr. Hedlund.

Likewise, just last week, an Alabama bankruptcy court refused to discharge student loan debt owed by a grandfather who had borrowed money back in the 1990s for a degree program he never completed even though the man was living with his wife on $2,000 a month and was broke enough to have his other debts discharged. But another Alabama bankruptcy judge discharged the student-loan debt of a woman in her 40s who had a pretty good job.

In this essay, I am going to try to give at least some partial answers to two questions:

  • First, when will the Department of Education and its loan collection agencies agree to allow a student-loan debtor to discharge student-loan debt in bankruptcy?  In other words, how bad does a debtor's financial situation need to be before DOE will tell a bankruptcy court that it will not oppose the discharge of student loan debt?
  • Second, what factors seem to weigh in the debtor's favor when trying to discharge student loans in a bankruptcy court proceeding?
I. DOE and Student-Loan Creditors Oppose Bankruptcy Relief For Nearly Everyone

Regarding the first question, DOE stated in a July 2015 letter that it would not oppose bankruptcy discharge in certain situations, and it listed 11 factors it would consider when deciding whether or not to agree to a discharge. Those factors are what you might suppose and include the debtor's age, health status and long-term economic prospects.  Supposedly, DOE won't oppose bankruptcy discharge for elderly people living on Social Security or people with very serious health problems.

In practice, however, DOE and its debt-collection agencies oppose bankruptcy relief for nearly everyone--even people who are ill and flat broke.  DOE's standard line is that everyone should be forced into a long-term income-based repayment plan, even when it is clear the debtor is so poor that that he or she will never be required to pay anything.

For example, in the Myhre case, DOE opposed bankruptcy relief for a quadriplegic man who was gainfully employed but whose expenses exceeded his income because he had to employ a full-time caregiver to feed and dress him and drive him back and forth to work.  A quadriplegic, for God's sake! Fortunately, the court rejected DOE's arguments and ruled for Mr. Myhre.

In the Roth case, Educational Credit Management Corporation (DOE's most ruthless collection agent) opposed bankruptcy relief for Jane Roth, a 68-year old woman with chronic health problems who was living on less than $800 a month.  Put her in a 25-year repayment plan, ECMC argued, even though it was apparent that Roth would never be able to pay back her student loans.  

In the Abney case, DOE opposed relief for Michael Abney, a 40-year old man who was so poor he couldn't afford a car and road a bicycle to work. Abney was living on $1200 a month, and the bankruptcy court ruled that his long-term economic prospects were not likely to improve any time soon.  Put him on a long-term repayment plan, DOE insisted; but the bankruptcy court sided with Mr. Abney and discharged his student-loan debt.

And just last week, ECMC persuaded an Illinois bankruptcy court to keep Brenda Butler in a 25-year repayment plan that she won't complete until 2037--42 years after she graduated from college! And by the way, Butler was unemployed at the time of her adversary proceeding.

So if you read DOE's July 2015 letter, just ignore it. In spite of representations by Deputy Assistant Secretary of Education Lynn Mahaffie that DOE won't oppose bankruptcy relief in some instances, in reality, DOE DOESN'T WANT ANYONE TO GET BANKRUPTCY RELIEF.  DOE wants virtually everyone in a 20- or 25-year repayment plan--even if that means people will be saddled with student-loan debt into their 90s.

II. What Can You Do To Increase Your Odds of Obtaining a Discharge of Your Student-Loan Debt?

Now let's turn to the second question: What factors weigh in a person's favor when trying to discharge student-loan debt in a bankruptcy court? There have been several scholarly articles on this topic--Rafael Pardo's work is especially helpful. By and large, the research tells us that people with serious long-term health issues are more likely to obtain relief than people in good health. And it helps to have a competent lawyer.

But a friend of mine has gone to the trouble of calling some of the people who have tried to discharge their student-loan debt in bankruptcy over the past two yeas, and he's briefed me on what he learned. This is what I've gleaned from these conversations:

First, it helps to prepare well in advance of filing your adversary complaint and to be able to document all student-loan payments that you made and all medical issues that are relevant. In my opinion, it makes sense to file a complaint that contains a lot of detail.  Filing a detailed complaint may help educate the bankruptcy judge about your circumstances early in the litigation instead of on the day of trial.

Second, if you are representing yourself and don't have an attorney, be wary of agreeing to anything the creditor's attorney suggests. For example, in a recent case, a Department of Education attorney persuaded a debtor to agree that it would not be an "undue hardship" to pay back his student loans, even though the guy was in bankruptcy for that very reason.  The debtor wasn't aware that by agreeing to what the attorney suggested, he had lost his case. And in fact, case law would have supported an argument that indeed it would have been an undue hardship to repay his student loans. 

Third, it is good to have an attorney, but your attorney must know the law--especially the recent cases that have ruled more compassionately toward student-loan debtors. In another recent case--a real heart breaker, an unemployed woman in her 40s, who had made good faith efforts to pay on her student loans for 20 years, got locked into a 25-year repayment plan that won't conclude until she is in her 60s. Apparently, the judge was never made aware that courts have granted relief to several people within the last 2 years whose financial situations were far better than hers.

Whether or not you have an attorney, you must know the law. Find out whether you are in a jurisdiction that follows the three-pronged Brunner test for determining whether it would be an undue hardship for a debtor to pay back student loans or whether you are in a jurisdiction that has adopted the "totality of circumstances" test.  

You should be aware that most judges won't require you to have lived on bread and water in order to qualify for a discharge of your student loans. For example, several courts have rejected creditors' arguments that student-loan debtors are not living frugally if they have a cell phone, an Internet account, or a pet. If your creditor makes that argument (and it will), it would be good to be able to cite those cases.  

You should be able to tell the judge that several courts in the Brunner jurisdictions have refused to interpret the Brunner test harshly and some have even criticized the test. You should point out those cases to your judge in your trial brief.

Finally, you should know the cases in which judges have refused to force distressed student-loan debtors into 25-year repayment plans. A couple of courts have pointed out the psychological stress that a long-term repayment plan can have on a person. It is essential for you to be able to educate your judge about court decisions that have rejected the creditors' stock argument, which is to force everyone into long-term repayment plans.

III. Remember--Your Judge May Be Sympathetic

Finally, you should know that there factors at work that are beyond a student-loan debtor's control--the temperament of the bankruptcy judge.  I think many of these judges are inclined to be sympathetic toward student-loan debtors--many of whom have been crushed not by their loans but by the creditors' collection fees and accruing interest. I believe many of these judges want to help you. After all, the bankruptcy judges know that the bankruptcy courts exist in order to give honest but unfortunate debtors a fresh start.

And it is also evident that some bankruptcy judges are willing to do a lot of research and to write impressively reasoned decisions in favor of student-loan debtors. The judge in Acosta-Coniff v. ECMC , the judge in Johnson v. Sallie Mae, and the judge in Abney v. Department of Education went to a lot of trouble to write decisions in favor of student-loan debtors that will have a good chance of being upheld by the appellate courts if a creditor appeals. But you can help your judge tremendously if you can point out recent cases in your trial brief that have been decided recently in favor of student-loan debtors whose cases are similar to yours. 

Trying to discharge your student loans in bankruptcy is a daunting challenge. You will be opposed by squadrons of creditors' attorneys who know the law and who show no mercy.  And if you win, the creditors are likely to appeal, hoping they will wear you down and you will simply give up.

But I believe in my heart that the winds of justice are blowing through the bankruptcy courts and that many bankruptcy judges are willing to help you if you have a good case.  But, to repeat myself,  you will help your judge tremendously if you educate the judges to the recent favorable decisions--Roth, Krieger, and more than a dozen others.  

If you are a distressed student-loan debtor with a reasonable case for discharge, go to the bankruptcy court and plead for  justice. You have a good chance of getting the justice you deserve. 

As they sometimes say in the Southwest, vaya con Dios.