University of Phoenix graduate got her student loans discharged on the grounds that Phoenix falsely certified she was eligible to receive the loans

 As the Department of Education attests on its own web site, DOE will forgive or cancel student loans under certain circumstances. For example, students are entitled to have their loans forgiven if the school they were attending closes while they were enrolled or shortly after that.   Students can also obtain a discharge if they can show they were induced to take out student loans through fraud. And students are also entitled to have their student loans discharged if the school they attended falsely certified that they were eligible to receive a federal student loan.

Unfortunately, the administrative process for obtaining a loan discharge is not easy to navigate. In fact, one might conclude that DOE sets up roadblocks to prevent student borrowers from getting the releases to which they are legally entitled. Price v. U.S. Department of Education, decided last year, illustrates just how difficult it can be to obtain a loan discharge even when a student is clearly qualified for relief.

Price v. U.S. Department of Education: The facts

Phyllis Price graduated with a degree from the University of Phoenix in 2005. She paid for her studies by taking out student loans, which she consolidated into a single loan for $36,868 bearing interest at 5.3 percent.

Price was 52 years old when she began her studies at the University of Phoenix and had not graduated from high school. A university counselor "instructed her to state on the [admission] application that she had actually finished school and to fill in the year she 'should have graduated.'" Price filled out the forms as she was directed.

Apparently, Price's degree from Phoenix did not benefit her financially. She was working as a contract administrator at the time she began her studies, and she was still doing substantially the same work ten years after obtaining her degree.

Price's first payment on her consolidated loan was due in August 2006. She did not make payments on the loan, and the Department of Education (DOE) declared her in default in October 2007.

In March 2008, Price filed a "False Certification (Ability to Benefit) Loan Discharge Application" in an effort to get her loans discharged. Essentially, she argued that her student loans should be canceled because the University of Phoenix had falsely certified that she was eligible to receive federal student loans for her studies.

American Student Assistance (ASA), DOE's loan servicer, denied Price's application and told her to produce evidence that she did not have a high school diploma. Price produced her high school transcript, which was prominently stamped "DID NOT GRADUATE" and asked for a hearing.

On June 24, 2009, more than a year after Price produced her high school transcript, DOE affirmed ASA's original decision denying her a loan discharge.  On October 1, 2014--more than six years after she filed her discharge application, DOE issued its final decision denying Price's "false certification discharge application."  A short time later, Price received notice that her wages were subject to being garnished for failure to pay back her student loan. Price then brought suit in federal court.

Statutory and Regulatory Issues Pertinent to Price's case

Under the Federal Family Education Loan Program (FFELP), private lenders make loans to "eligible borrowers" to finance postsecondary studies. The loans are insured by student loan guaranty agencies and reinsured by DOE. Generally, an eligible borrower is someone who has a high school diploma or a GED. 

"However, a 'student who does not have a certificate of graduation from a school providing secondary education, or the recognized equivalent of such certificate,' may qualify for a loan if the school certifies that she has the ability to  benefit from the education it provides." Price v. U.S. Dep't of Educ., 209 F. Supp. 3d 925, 930 (S.D. Tex. 2016) (quoting 20 U.S.C. sec. 1091(d)). 

A school can certify that a student has the ability to benefit from its programs if the student passes an independently administered ATB ("ability to benefit") test.  However, the University of Phoenix did not require Price to take an ATB test.

What is the purpose of the "ability to benefit" rule? Congress adopted "ability to benefit" legislation in 1992, "spurred by public concern over unscrupulous schools exploiting student borrowers who received no benefit from expensive classes of little use." Id. Under federal law (20 U.S.C. sec. 1087(c) (1)), the Department of Education is required to discharge loans taken out by people who were falsely certified as being eligible to receive federal loans by the schools they attended. 

A federal magistrate rules in Price's favor

Price filled out an application to have her loans discharged in 2008, asserting under oath that she did not have a high school diploma at the time she took out federal loans and had not been given an ATB test. End of story, right?

No, DOE refused to discharge her student loans on the grounds that it had no evidence that the University of Phoenix had systematically violated the "ability to benefit" rules. In refusing to forgive Price's loans, a federal magistrate found, DOE violated federal law and DOE's own regulations. In essence, the Magistrate observed, DOE's decision-making process "amounted to a cursory glance at the forest, with no attempt to spot the only tree that mattered."

DOE attempted to defend its decision by offering post hoc rationalizations. In particular, the Department argued that Price obtained a degree from the University of Phoenix and should not be allowed to benefit from that degree without paying for it. But the federal Magistrate rejected that argument, pointing out that Price was entitled to have her loans forgiven whether or not she obtained a degree. 

Furthermore, the Magistrate noted, Price apparently had not benefited from her studies at the University of Phoenix. "Price is doing essentially the same job as before she enrolled, and any psychic benefit from achieving a degree is more than offset by eight years of fending off debt collectors." In any event,  the Magistrate continued, "Congress did not see fit to condition student loan relief upon a showing that the student ultimately failed to graduate." Id. at 934.

Why did DOE deny Price the relief to which she was legally entitled?

Clearly, Price was ill-treated by DOE, which dragged her through a tedious administrative process for six years before ultimately denying her claim.  And, as a federal magistrate concluded, Price was clearly entitled to have her student loans forgiven under federal law and DOE's own regulations.

Why did DOE take the position it did? I can think of only one reason--DOE is so desperate to keep people from getting their loans forgiven that it is willing to ignore federal law. 

DOE is like the fabled Dutch boy with his thumb in the dike. Once a few people are granted relief from their student loans, it will be apparent that millions are entitled to relief. That will lead to a torrent of loan forgiveness, which will cause the federal student loan program to collapse.

References

Price v. U.S. Dep't of Education, 209 Fed. Supp. 3d 925 (S.D. Tex. 2016).

Millennials now outnumber Baby Boomers and they believe student loans should be forgiven: Politicians take note

 Gordon Long authored an essay for MATASII.com (reposted on the Zero Hedge blog site) that contains some profound observations about the Millennial generation. As Long points out, Millennials now surpass Baby Boomers as the nation's largest generation. In 2015, there were 74.9 Baby Boomers (ages 51-69), while there were 75.4 million Millennials (ages 18-34). And of course, Baby Boomers will shrink as a percentage of the nation's entire population as they grow older and die.

Gordon argues that Millennials have a larger sense of entitlement than Baby Boomers, who, after all, were raised by people from the notoriously self-reliant Greatest Generation. My late parents, for example, lived through the Great Depression and World War II, and they didn't believe anyone was entitled to anything; and I suppose some of that philosophy was passed on to me.  My children are Millennials; and I think they believe that everyone living in a prosperous society is entitled to health care and a basic level of education. If so, I agree with them.

Gordon made two observations about Millennials that have important political implications. First, millennials make about 20 percent less than the Baby Boomers did at their age--they are poorer as a whole than my generation was when we were young.

Second, a lot of Millennials believe student loans should be forgiven. And why shouldn't they hold that view? After all, I paid a pittance for a fine law degree when I was young and immediately got a well-paying job. Millions of Millennials are burdened with student loans and are struggling to find good jobs in a weak job market.

Long believes the Millennials' support for Bernie Sanders during the 2016 presidential election can be largely explained by Bernie's impassioned call for a free college education for everyone. This is a very appealing proposal to a generation of Americans who hold billions of dollars in student debt.

So what are the political implications of Long's observations? Simply this: the Millennials will not put up with the status quo in terms of the federal student program. Our political and media elites seem to think young Americans will continue borrowing more and more money for postsecondary education and will be content to enter into income-driven repayment plans that last as long as a quarter of a century. But the elites are delusional.

In the next presidential election and every election thereafter, the Millennials and the generations coming after them will flock to any candidate who calls for student loan forgiveness and free postsecondary education. They will become one-issue voters.

So far at least, President Trump and Secretary of Education Betsy DeVos are tone deaf to the student loan crisis. The Department of Education is mishandling the Public Service Loan Forgiveness program, and it nullified a decision by the Obama administration to ban student loan collection agencies from slapping huge penalties on student borrowers who defaulted on their loans. Apparently, DeVos is seeking advice from the for-profit college industry rather than the student debtors who were victimized by that industry.

The student loan crisis grows worse by the month, and the politicians who step forward with solutions will win the vote of the Millennials and a lot of other Americans. If our current President doesn't understand that, he will be a one-termer.

References

Stacy Cowley. Student Loan Forgiveness Program Approval Letters May Be Invalid, Education Dept. Says. New York Times, March 30, 2017.

Steve Rhode. Public Service Loan Forgiveness Program Teeters With Unmitigated Disaster. Personal Finance Syndication Network, PFSyn.com, May 2, 2017.

Editorial, The Wrong Move on Student Loans. New York Times, April 76, 2017.

Defrauded students file debt-relief applications with the Department of Education: Bankruptcy courts can provide relief faster and more efficiently than DOE bureaucrats

When Betsy DeVos takes over as the new Secretary of Education next year, she will inherit one huge headache--thousands of pending applications for loan forgiveness from students who claim they were defrauded by various for-profit universities.

As Andrew Kreighbaum explained in a recent article for Inside Higher Ed, the Department of Education had received 80,000 loan discharge applications as of last October; and the total number has likely grown to at least 100,000.

So far, DOE has approved 15,694 applications for discharge from students who attended three campuses owned by the now defunct Corinthian Colleges system, but many more of Corinthian's former students are surely eligible for loan forgiveness based on fraud claims. After all, Corinthian has 350,000 former students.

And there are hundreds of other student borrowers who may file loan-forgiveness applications: students from ITT Tech Services, Globe University, Minnesota School of Business, and several more for-profits that closed after being accused of wrongdoing.

I. Problems with forgiving loans through the DOE administrative process

DOE has been extremely slow to process borrower defense applications; I know one young woman who filed her application in August based on a claim she was defrauded by DeVry University. She has yet to receive a response from DOE.

New federal regulations for processing borrower defense claims will become effective next summer, but there are several fundamental challenges that new regulations won't solve:

1. Tax consequences. First, all former for-profit student who have their student loans forgiven will have a one-time tax liability because the amount of their forgiven loans is considered taxable income by the IRS. 

2. Forfeiture of college credits. Under the current debt-relief program, students whose student loans are forgiven due to fraud will forfeit any credits they received from the institution they attended.

3. Insufficient DOE resources. Third, the Department of Education simply doesn't have the resources to process thousands of loan forgiveness claims in a timely manner, not to mention the thousands of new claims that will inevitably be filed as more for-profit colleges close their doors.

II Bankruptcy is a better way to process loan forgiveness applications

Fortunately, there is a solution to these problems; it's called the bankruptcy courts.

First, debtors whose student loans are discharged in bankruptcy will not suffer tax consequences for a forgiven loan because under current IRS rules forgiven debts are not taxable to an individual who is insolvent at the time the loan is forgiven.

Second, a student debtor who discharges student loans from a for--profit college through the bankruptcy process will not forfeit credits or degrees conferred by the college.

Finally, the bankruptcy courts clearly have the resources to process hundreds of thousands of bankruptcy petitions filed by distressed student-loan debtors. Filing an individual Chapter 7 action is relatively simple and does not require a lawyer.  Bankruptcy petitions could be routinely resolved in the bankruptcy courts, which have the expertise to weed out fraudulent or unworthy claims.

III. DOE has the authority to reinterpret the  "undue hardship" standard 

Critics might argue that my proposal is unworkable because anyone seeking to discharge student loans in bankruptcy must meet the "undue hardship" standard, a very difficult standard to meet.  But there is a solution for that challenge as well.

All DOE needs to do to ease the path to bankruptcy relief for insolvent student-loan debtors with fraud claims is to write an official letter expressing its view that every insolvent debtor who attended a for-profit college that has been found to have acted fraudulently meets the undue hardship standard.

In essence, such a letter would be a a revision of DOE's letter issued on July 7, 2015, giving the Department's interpretation of the "undue hardship" rule. In all likelihood, the bankruptcy courts would defer to DOE's revised interpretation of "undue hardship" and begin discharging student loans routinely.

Of course, DOE would also need to direct the various student-loan guaranty agencies to stop opposing bankruptcy relief for any insolvent debtor with a fraud claim against a for-profit college.

Easing the path to bankruptcy relief for distressed debtors who took out student loans to attend dodgy for-profit colleges will cost taxpayers billions. But most of the people who took out these loans will never pay the money back anyway. Almost 50 percent of the people who took out loans to attend for--profit colleges default on those loans within five years. Others enter into income-driven repayment plans that lower monthly payments, but according to the Government Accountability Office, about half the people who begin these plans are kicked out for failing to verifying their income on an annual basis.

So let's begin cleaning up the mess our government created when it began shoveling federal student-aid money to  the rapacious for-profit college industry. Let's shut these colleges down and wipe out the student-loan debt accumulated by millions of victims of massive fraud. Incoming Secretary of Education Betsy DeVos will have the authority to grant relief to these victims by easing the path toward bankruptcy. Let's hope this is what she does.

Incoming Secretary of Education Betsy DeVos

References

Andrew Kreighbaum. Activists and borrowers call on Obama administration to provide debt relief to defrauded students. Inside Higher Ed, December 14, 2016.

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

Lynn Mahaffie, Undue Hardship Discharge of Title IV Loans in Bankruptcy Adversary Proceedings. CL ID: GEN 15-13, July 7, 2015.

Eric Rosenberg.You Need to Know How Student Loan Forgiveness Is Taxed.  Studentloanhero.com, July 18, 2016.

US. Government Accounting Office. Federal Student Loans: Education Needs to Improve Its Income-Driven Repayment Plan Budget Estimates. Washington, DC: U.S. Government Accounting Office, November, 2016.

Artist burns student loan records at private university in South America: What a cool idea!

A friend recently sent me an article from The Guardian about an artist using the name Fried Potatoes (Papas Fritas in Spanish) who sneaked into the vault of Universidad del Mar, a private university in Chile, and burned all the documents pertaining to the university's student loans.  Yep, a half billion dollars in student debt went up in smoke.

What a cool idea!

Of course, destroying all loan documents pertaining to private college loans would be impossible in the United States. There are literally millions of student-loan documents in the U.S. involving hundreds of for-profit colleges. Most are in electronic format and the government  maintains records of these debts, since the government guarantees all loans issued through the federal student-loan programs.

Still, some variation of this idea is worth considering. Let's start with Corinthian Colleges, which filed for bankruptcy last year and now has a $1.2 billion judgment against it for false advertising and misleading lending practices. A California judge ordered Corinthian to pay most of the judgment ($820 million) as restitution to former students who were victimized by its scam. The bulk of this money represents federal loans students took out to pay their tuition bills at one of Corinthian's campuses.

But of course Corinthian doesn't have the money to pay the judgment. At the time it filed for bankruptcy, it claimed to have only $20 million in assets--about one sixtieth of the total California judgment.

Department of Education regulations allow students to apply for loan forgiveness if they were students at a college that closed or if they were defrauded by the college they attended. Thousands of Corinthian alums have applied for relief under these regulations.

But the administrative process for resolving these claims has been tedious, and so far only a small number of ex-Corinthian students have had their loans forgiven.

Why doesn't the Department of Education do what Papas Fritas did and just dissolve the debt? Of course, DOE wouldn't need to actually burn all those loan documents, although I'm sure a bonfire would be personally satisfying to Corinthian's former students. But the loans could be forgiven by government fiat. And that is what DOE should do.

After all, Corinthian's former students will never pay back those student loans. In fact, almost half of all students who attended for-profit colleges eventually default on their federal student loans. Wouldn't it be easier and more just for the government to simply decree that any student who took out federal loans to attend a for-profit college will have those loans forgiven if the college is found guilty of fraud or misrepresentation?

Of course it would, but DOE will never take that straightforward step because the amount of money involved is enormous. It would rather deal with student claims through a cumbersome administrative process, knowing that most students won't go to the trouble of filing a claim.

And here's a better idea. Given the high levels of fraud, misrepresentation, price-gouging and totally worthless educational experiences connected with the for-profit college industry, I think we should simply allow anyone who took out student loans to study at one of these shyster for-profit institutions to discharge those loans in bankruptcy under the same standards that apply to other unsecured debt. In other words, people who are otherwise qualified for bankruptcy relief should have their student loans discharged through the routine process of a bankruptcy filing without the need of filing an adversary proceeding.

References

Jonathan Franklin. Chile students' debts go up in smoke. The Guardian, May 23, 2014. Accessible at http://www.theguardian.com/world/2014/may/23/chile-student-loan-debts-fried-potatoes

Matt Hamilton. Corinthian Colleges must pay nearly $1.2 billion for false advertising and lending practices. Los Angeles Times, March 23, 2016. Accessible at http://www.latimes.com/local/lanow/la-me-ln-corinthian-colleges-judgment-false-advertising-20160323-story.html

Liz Kelly, a school teacher, owes $410,000 in student loans--most of it accumulated interest. Will she ever pay it back?

Compound interest is the eighth wonder of the world. He who understands it, earns it ... he who doesn't ... pays it.

Albert Einstein 

Liz Kelly, a 48-year old school teacher, owes the federal government $410,000 in student loans, which she will never pay back. How did that happen?

The New York Times article chronicled Kelly's story in this Sunday's Business Section, but the Times didn't adequately explain how Kelly got into this jam. My commentary for today is a forensic commentary on Kelly's situation.

Compound interest. As the Times story reported, Kelly didn't borrow $410,000 to finance her studies. She actually borrowed less than $150,000. Two thirds of her total debt is accumulated interest.

Albert Einstein observed that "[c]ompound interest is the eighth wonder of the world. He who understands it, earns it . . . he who doesn't . . . pays it." As Liz Kelly's story illustrates, most people don't understand Einstein's simple observation about compound interest any better than they understand his theory of relativity.

Over the years, Kelly took out student loans to pay for her undergraduate education, graduate studies, child care and living expenses. She also borrowed money to get a law degree, which she did not complete, and a Ph.D. from Texas A & M, which she also did not complete.

Her graduate studies enabled her to postpone making payments on her loans, but she continued borrowing more money; and the interest on her loans continued to accrue. Some of her loans accrued interest at 8. 25 percent--a pretty high interest rate. When her total indebtedness reached $260,000, she consolidated her student loans at 7 percent interest--still pretty high.

Over a period of 25 years, Kelly received a series of forbearances or deferments, and she never made a single payment on her loans. Thus, it is easy to understand how the total amount of her indebtedness tripled over the amount she borrowed.  In fact, as the Times pointed out, the annual cost of interest on her unpaid student loans is now larger than the total amount she borrowed for her undergraduate education!

Back in the old days, when people received interest on their savings, most people understood the principle of compound interest. People knew, for example, that money saved at 7 percent interest doubled in 10 years, and that money saved at 10 percent interest doubled in 7 years.

But no one gets interest on their savings any more, and perhaps that explains why many student-loan borrowers don't understand that their total indebtedness grows every year their loans are in deferment. Certainly Liz Kelly didn't understand this. The Times reported that she was shocked to learn that she owed $410,000.

No cap on student loans.  Although Kelly never made a single payment on her student loans, the federal government continued to loan her money. In fact, in 2011, she borrowed about $7,500 to pursue a Ph.D. in education, even though her total indebtedness at that time was more than a third of a million dollars and she had made no loan payments.

As the Times writer succinctly observed:

A private sector lender approached by a potential borrower with no assets, a modest income, and $350,000 in debt who had never made a payment on that loan in over 20 years would not, presumably, lend that person an addition $7,800. But that is exactly what the federal government did for Ms. Kelly. Legally it could do nothing else.

Obviously, a federal student-loan system that works this way is dysfunctional, irrational, and unsustainable. The feds should have shut off the student-loan spigot long before Kelly borrowed money to get a Ph.D.

The Charade of Income-Based Repayment Plans. If Kelly had accumulated $410,000 in consumer debt or a home mortgage, she could discharge the debt in bankruptcy. But discharging a student loan in bankruptcy is very hard to do. Indeed, Kelly might find it very difficult to meet the so-called "good faith" prong of the three-part Brunner test. After all, she continued taking out student loans over a period of 20 years and never made any loan payments.

Kelly's only reasonable escape from her predicament is to enroll in the federal government's loan forgiveness program, which would allow her to make payments based on a percentage of her income for a period of 10 years so long as she works in an approved public-service job. As a school teacher, she should easily qualify for this program.

But as Kelly herself pointed out, her monthly loan payments under such a plan would not even cover accumulating interest on the $410,000 she owes. At the end of her 10-year repayment program, her total indebtedness would be larger than it is now--easily a half million. That amount would be forgiven, leaving the taxpayers on the hook.

In fact, Kelly's situation is a perfect illustration for the argument that income-based repayment programs are not a solution to the student-loan crisis. Most people who participate in them--about 4 million people--will not pay down the principal on their loans.  Income-based repayment plans are really just a penance for borrowing too much money--say one Our Father and three Hail Marys and go and sin no more.

Conclusion

The Times story on Liz Kelly concluded with the observation that Kelly's story is unusual, but that's not really true. As the Times itself observed in a recent editorial, 10 million people have either defaulted on their loans or are in delinquency. The Consumer Financial Protection Bureau reported in 2013 that 9 million people were not making payments on their student loans because they had obtained a forbearance or deferment. And about 4 million people are in income-based repayment plans.

Thus, at least 23 million people have loans in the repayment phase who are not making standard loan payments. So what should we do?

1) First, the federal government should not loan people more money if they are not making payments on the money they already borrowed. No one did Liz Kelly any favors by loaning her an additional $7,500 when she had already accumulated indebtedness of $350,000 and didn't have a prayer of ever paying it back.

2) There needs to be some cap on the amount of money people can borrow from the federal student-loan program. I'm not prepared to say what the cap should be, but surely it is bad public policy to lend money so that people can accumulate multiple degrees that do not further their financial prospects.

3) We've got to face the fact that income-based repayment plans--favored by the Obama administration, the New York Times, and the Brookings Institution--are not a solution to the student-loan crisis. Surely it is pointless to put Kelly on a ten-year income-based repayment plan that won't even pay the interest on her indebtedness.

As unpalatable as it is for politicians and the higher education community to admit, bankruptcy is the only humane option for people like Liz Kelly.  Did she make some big mistakes in managing her financial affairs? Yes. But the federal government and several universities allowed her to make those mistakes; and the universities received the benefit of Kelly's tuition money.

No--we need to face this plain and simple fact: Kelly will never pay off that $410,000. And putting her in a long-term income-based repayment plan is nothing more than a strategy to avoid facing reality, which is this: the federal student loan program is out of control.

Compound interest: The eighth wonder of the world

References

Kevin Carey. (2015, November 29). Lend With a Smile, Collect With a Fist. New York Times, Sunday Business Section, 1. Accessible at: http://www.nytimes.com/2015/11/29/upshot/student-debt-in-america-lend-with-a-smile-collect-with-a-fist.html?_r=0

Editorial, "Why Student Debtors Go Unrescued." New York Times, October 7, 2015, A 26. Accessible at: http://www.nytimes.com/2015/10/07/opinion/why-student-debtors-go-unrescued.html

Rohit Chopra. A closer look at the trillion. Consumer Financial Protection Bureau, August 5, 2013.  Accessible at: http://www.consumerfinance.gov/blog/a-closer-look-at-the-trillion/