Amazon partners with Wells Fargo to peddle private student loans: Say it ain't so, Jeff Bezos

Amazon announced recently that it is partnering with Wells Fargo in the private student-loan business. The plan is for Wells Fargo to offer a slightly discounted interest rate to Amazon Prime Student members on Wells Fargo's private student loans.

 I was sorry to get this news. More than 50 years ago, American businesses discovered that they could rake in more cash from loaning money to their customers than from selling products. Prior to filing bankruptcy, for example, General Motors generated more profits from GMAC, its lending arm, than it did from selling cars.

In fact, the common joke at the time was that GM was not a car manufacturing company; it was a bank that happened to sell cars. And of course that slight change in focus from building quality automobiles to lending money at interest partly explains why GM went bankrupt.

Amazon already sells just about everything in the world. I recently purchased a couple of bags of wood chips for my electric smoker from Amazon; and I bought them cheaper than I could have gotten them at my local grocery store. Amazon's success has made Jeff Bezos, its founder, the third richest man in the world. He's worth about $65 billion.

Do Jeff and Amazon really need to get into the student loan business? Doesn't Jeff have enough money already?

But what is wrong with Amazon getting into the private student loan business, you might ask? What makes peddling student loans different from selling books, CDs, and appliances?

At least three things. First, most banks and lenders require student-loan borrowers to obtain a co-signer who will guarantee repayment of the loan. Thus, when Johnny and Sallie take out private student loans, Mom and Pop are also on the hook. In my opinion, it is reprehensible for banks to force students to get parents or relatives to cosign student loans.

Second, private loans generally carry higher interest rates than federal student loans, and they don't provide alternative payment options if a borrower runs into financial trouble and can't make monthly loan payments.  Without exception, people would be better off borrowing in the federal program than the private program.

Private lenders argue that they provide loans to people who need more money than they can borrow through the federal program.  But in my view, people who can't finance their educational program solely through federal loans are in the wrong program.

Finally, the banks managed to get Congress to revise the Bankruptcy Code in 2005 to make private loans as difficult to discharge in bankruptcy as federal loans. Senator Joe Biden was the chief architect of that sweetheart deal for the banks.

So if you take out a student loan from Wells Fargo and suffer a financial catastrophe, you will find it virtually impossible to discharge your Wells Fargo loan in bankruptcy. This is another good reason not to take out a private student loan.

In sum, the private student loan business is a sleazy industry. And so I ask again: Jeff Bezos, don't you have enough money already? Does Amazon really need to associate itself with the unsavory commerce in private student loans?

Jeff Bezos: Say it ain't so, Jeff

References

Ann Carne. Student Loan Co-Signers Face Tangled Path to a Release. New York Times, July 10, 2015. http://www.nytimes.com/2015/07/11/your-money/student-loan-co-signers-face-a-tangled-path-to-a-release.html

Karen Silke Carty. 7 Reasons GM is Headed to Bankruptcy. ABC News. Accessible at http://abcnews.go.com/Business/story?id=7721675&page=1

Annamaria Andriotis. Amazon tiptoes into the banking business through student loans. Wall Street Journal, July 21, 2016. Accessible at http://www.wsj.com/articles/amazon-tip-toes-into-banking-business-1469093403

Sirota, David. Joe Biden Backed Bills to Make It Harder For Americans To Reduce Their Student Debt. International Business Times, September 15 , 2015. Accessible: http://www.ibtimes.com/joe-biden-backed-bills-make-it-harder-americans-reduce-their-student-debt-2094664

More than a third of college graduates say they would not have attended college had they known what it would cost: Buyer's Remorse

Jessica Dickler reported recently on a survey of college graduates conducted by Citizens Bank. According to Dickler, the survey found that 36 percent of the students surveyed said they would not have attended college had they known what it would cost them. And half said they regretted the amount of indebtedness they incurred to get their college degrees.

Even more startling, the survey found that 60 percent of college graduates had no idea when their loans would be paid off and a third didn't know the interest rate they were paying.

In addition, the same survey found that recent graduates are devoting about 20 percent of their salaries to student-loan payments and that most recent graduates expect to be paying on their student loans until they are in their 40s.  As a consequence, survey respondents reported, they have limited amounts of money to spend on travel, housing, eating out, and entertainment.

I wonder if Citizens Bank will rethink its student-loan policy based on the results of its survey. It was Citizens, you may recall, that loaned $161,000 to Lorelei Decena so she could attend an unaccredited medical school in Africa. Decena successfully discharged her debt to Citizens based on the fact that the school she attended was not on the U.S. Department of Education's approved list of schools

Do you suppose Decena took Citizens' survey? If so, was she was one of the 36 percent who said they regretted their college experience?

References

Decena v. Citizens Bank, 549 B.R. 11 (Bankr. E.D.N.Y. 2016).

Jessica Dickler. Buyer's College buyer's remorse is real. CNBC News, April 7, 2016. Accessible at http://www.cnbc.com/2016/04/07/college-buyers-remorse-is-real.html

Jessica Dickler. College costs are out of control. CNBc News, July 16, 2016. Accessible at http://www.cnbc.com/2016/07/12/college-costs-are-out-of-control.html

Citizens Bank. Millennial College Graduates with Student Loans Now Spending Nearly One-Fifth of Their Annual Salaries on Student Loan Repayments. April 7, 2016. Accessible at http://investor.citizensbank.com/about-us/newsroom/latest-news/2016/2016-04-07-140336028.aspx

The Department of Education almost always fights bankruptcy relief for distressed college-loan borrowers--even when it pointless to do so: You'll never get out of this world alive.

I'll never get out of this world alive.

Hank Williams

Last July, Lynn Mahaffie, Deputy Secretary of Education, issued an insincere letter regarding the Department of Education's position concerning bankruptcy relief for college-loan debtors.

In that letter, Mahaffie outlined when DOE would not oppose bankruptcy relief for student-loan borrowers. She listed eleven factors to consider when determining when DOE would agree to permit a bankrupt debtor to discharge student loans in a bankruptcy court. Besides, Mahadffie said the Department would not oppose a bankruptcy discharge if it would not make economic sense to fight a student-loan borrower's petition for relief.

But in fact, Mahaffie wasn't telling the truth. Bankruptcy court opinions decided after Mahaffie wrote her letter show that DOE opposes bankruptcy relief for almost everyone--even when it is evident a debtor will never repay his or her college loans.

Let's review Kelly v. U.S. Department of Education, decided less than two months ago. Cynthia Kelly, a woman in her sixties, filed for bankruptcy in August 2014. At the time of her filing, Kelly had accumulated $160,000 in college-loan debt; and she had had no steady employment for almost 10 years. In fact, she was receiving nearly $200 a month from the local Department of Social Services in food assistance.

Before filing, Kelly was approved for an "Income-Contingent Repayment Plan" (ICRP) that reduced her monthly student-loan payment obligation to zero because her income was so low. Based on her employment history, it seems highly unlikely that Kelly will ever be required to pay a single penny on her student loans under her ICRP because she will probably live at the poverty level for the rest of her life.

Nevertheless, the Department of Education opposed Kelly's bankruptcy application to discharge her student loans, and Judge David Warren, a North Carolina bankruptcy judge, refused to release her from the debt. In the judge's view, Kelly failed the second prong of the Brunner "undue hardship" test because she could not show "additional circumstances" that precluded her from paying back her loans in the future.

Indeed, Judge Warren was totally unsympathetic to Ms. Kelly's situation.  The judge pointed out that Kelly had taken out student loans over a period of 40 years and had paid almost none of it back (less than $2,300).  Moreover, she had left a secure job with a pharmaceutical company in 2004 to do community service work and had never had steady employment since that time. Although Kelly argued that she had made diligent efforts to find remunerative work, Judge Warren ruled that there was no evidence that she had ever "pounded the payment" to find a job.

Judge Warren pointed out that Kelly appeared to be in good health and was well educated, having both a bachelor's degree, a master's degree, and a doctorate. He seemed offended by the fact that a highly educated person was getting food assistance.  Kelly's "lack of desire and motivation is an insult to those similarly situated," the judge observed, "especially to those lacking the gift of an education." In the judge's opinion, this insult was further compounded "by [Kelly's] complacent acceptance of welfare . . . "

I fully agree with Judge Warren that Kelly is not an attractive candidate for bankruptcy relief.  As the judge pointed out, Kelly took out student loans for nearly 40 years to obtain a lot of post-secondary education. Yet, she chose to live a "voluntary lifestyle" of community service rather than make reasonable efforts to maximize her income.

But let's face it. Ms. Kelly (or Dr. Kelly) will never pay off $160,000 in student loans. Her ICRP requires her to pay nothing due to her poverty-level income. It is totally unrealistic to believe that a woman in her sixties who hasn't held a steady job in ten years will obtain a well-paying job in today's economy.

Moreover, the colleges and universities that took Ms. Kelly's tuition money over a forty-year period bear a good deal of the blame for the situation Kelly is in now. According to Judge Warren, Kelly enrolled at multiple institutions, including Stone School, University of New Haven, Southern New Hampshire University, Spelman College, Drew University, South New Hampshire University, University of Mount Olive, and Shaw University.

Perhaps Kelly is not deserving of bankruptcy relief, but denying her that relief will not get the taxpayers' money back. The Department of Education would be more honest with taxpayers if it allowed people in Kelly's position to shed their debt in a bankruptcy court and then took steps to prevent colleges all over the United States from enrolling students in programs that will never pay off financially.

But that will never happen because the colleges can't survive without federal student-aid money, including money they get from admitting students to programs that have no economic benefit for the people who complete them.

References

Kelly v. U.S. Department of Education, 548 B.R. 99 (Bankr. E.D.N.C. 2016).

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

The Department of Education almost always fights bankruptcy relief for distressed college-loan borrowers--even when it pointless to do so: You'll never get out of this world alive.

I'll never get out of this world alive.

Hank Williams

Last July, Lynn Mahaffie, Deputy Secretary of Education, issued an insincere letter regarding the Department of Education's position concerning bankruptcy relief for college-loan debtors.

In that letter, Mahaffie outlined when DOE would not oppose bankruptcy relief for student-loan borrowers. She listed eleven factors to consider when determining when DOE would agree to permit a bankrupt debtor to discharge student loans in a bankruptcy court. Mahadffie said the Department would not oppose a bankruptcy discharge if it would not make economic sense to fight a student-loan borrower's petition for relief.

But in fact, Mahaffie wasn't telling the truth. Bankruptcy court opinions decided after Mahaffie wrote her letter show that DOE opposes bankruptcy relief for almost everyone--even when it is apparent a debtor will never repay his or her college loans.

Let's review Kelly v. U.S. Department of Education, decided less than two months ago. Cynthia Kelly, a woman in her sixties, filed for bankruptcy in August 2014. At the time of her filing, Kelly had accumulated $160,000 in college-loan debt; and she had had no steady employment for almost 10 years. In fact, she was receiving nearly $200 a month from the local Department of Social Services in food assistance.

Before filing, Kelly was approved for an "Income-Contingent Repayment Plan" (ICRP) that reduced her monthly student-loan payment obligation to zero because her income was so low. Based on her employment history, it seems highly unlikely that Kelly will ever be required to pay a single penny on her student loans under her ICRP because she will probably live at the poverty level for the rest of her life.

Nevertheless, the Department of Education opposed Kelly's bankruptcy application to discharge her student loans, and Judge David Warren, a North Carolina bankruptcy judge, refused to release her from the debt. In the judge's view, Kelly failed the second prong of the Brunner "undue hardship" test because she could not show "additional circumstances" that precluded her from paying back her loans in the future.

Indeed, Judge Warren was totally unsympathetic to Ms. Kelly's situation.  The judge pointed out that Kelly had taken out student loans over a period of 40 years and had paid almost none of it back (less than $2,300).  Moreover, she had left a secure job with a pharmaceutical company in 2004 to do community service work and had never had steady employment since that time. Although Kelly argued that she had made diligent efforts to find remunerative work, Judge Warren ruled that there was no evidence that she had ever "pounded the payment" to find a job.

Judge Warren pointed out that Kelly appeared to be in good health and was well educated, having a bachelor's degree, a master's degree, and a doctorate. He seemed offended by the fact that a highly educated person was getting food assistance.  Kelly's "lack of desire and motivation is an insult to those similarly situated," the judge observed, "especially to those lacking the gift of an education." In the judge's opinion, this insult was further compounded "by [Kelly's] complacent acceptance of welfare . . . "

I fully agree with Judge Warren that Kelly is not an attractive candidate for bankruptcy relief.  As the judge pointed out, Kelly took out student loans for nearly 40 years to obtain a lot of post-secondary education. Yet, she chose to live a "voluntary lifestyle" of community service rather than make reasonable efforts to maximize her income.

But let's face it. Ms. Kelly (or Dr. Kelly) will never pay off $160,000 in student loans. Her ICRP requires her to pay nothing due to her poverty-level income. It is totally unrealistic to believe that a woman in her sixties who hasn't held a steady job in ten years will obtain a well-paying job in today's economy.

Moreover, the colleges and universities that took Ms. Kelly's tuition money over a forty-year period bear a good deal of the blame for the situation Kelly is in now. According to Judge Warren, Kelly enrolled at multiple institutions, including Stone School, University of New Haven, Southern New Hampshire University, Spelman College, Drew University, South New Hampshire University, University of Mount Olive, and Shaw University.

Perhaps Kelly is not deserving of bankruptcy relief, but denying her that relief will not get the taxpayers' money back. The Department of Education would be more honest with taxpayers if it allowed people in Kelly's position to shed their debt in a bankruptcy court and then took steps to prevent colleges all over the United States from enrolling students in programs that will never pay off financially.

But that will never happen because the colleges can't survive without federal student-aid money, including money they get from admitting students to programs that have no economic benefit for the people who complete them.

References

Kelly v. U.S. Department of Education, 548 B.R. 99 (Bankr. E.D.N.C. 2016).

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

Vermont lawmakers urge Congress to lift bankruptcy restrictions for distressed college-loan borrowers: Bernie Sanders, here's your cue!

Earlier this week, the Vermont House of Representatives adopted a resolution urging Congress to allow distressed student-loan borrowers to file for bankruptcy without restriction. In effect, the Vermont lawmakers asked Congress to repeal the "undue hardship" provision of the Bankruptcy Code.

The measure had broad support among Vermont legislators.  The resolution was sponsored by more than 70 of  the Vermont House's 150 representatives.

This is an amazing development. Everyone knows the federal student loan program is in crisis and that millions of college-loan borrowers are burdened by massive debt they can't pay back. Congress won't do anything about it because our federal legislators have been bought off by the college industry and the banks. Now we have a state legislative body asking for bankruptcy relief.

Joint House Resolution 27, as the Vermont resolution is titled, is remarkable for its clarity.  As the resolution stated: "27 million borrowers are either in default or some other form of loan repayment delinquency . . . "  Moreover, the Vermont legislators pointed out, plans to reduce interest rates or restructure the student loan program might be helpful to future borrowers, but these proposals do nothing to help people who are suffering right now.

I hope other state legislatures across the United States will follow the lead of the Vermont House of Representatives and call for the elimination of bankruptcy restrictions for desperate college-loan borrowers.  Multiple state-level legislative resolutions would put huge pressure on Congress to quit doing the bidding of the college industry and amend the Bankruptcy Code.

And here is an opening for Bernie Sanders.  If he would endorse Joint House Resolution 27 and call for a reform of the Bankruptcy Code, he would attract even more voters.  At the very least, Bernie's endorsement might force Hillary Clinton to endorse Resolution 27 as well.  So far, her only plan for reforming the federal student loan program is to shovel more money toward the inefficient, corrupt, and venal higher education industry.

Hooray for the state legislators in Vermont.  Bernie, please jump on board. The time for action is now.

Vermont lawmakers urge Congress to lift restrictions on bankruptcy for student-loan borrowers

References

Micahel Bielawski. Vermont House asks Congress to let student-loan borrowers file for bankruptcy. VermongtWatchdog.org, May 3, 2016.  Accessible at http://watchdog.org/264079/legislature-requests-student-debt-relief-bankruptcy/

Law graduates can discharge bar-exam loans in bankruptcy but not student loans to go to law school

Lesley Campbell graduated from Pace University School of Law in 2009, but she didn't pass the bar exam. According to the Wall Street Journal, her total student-loan debt is now nearly $300,000.

After obtaining her JD degree, Campbell  took a secretarial job that paid $49,000 a year; and she filed for bankruptcy in 2014. Although she did not discharge her student loans, a bankruptcy judge did allow her to discharge a $15,000 loan she obtained from Citibank to pay for her bar review course.

A few brief comments on Ms. Campbell's case. First, people who take on $300,000 in student-loan debt to go to law school and don't pass the bar exam obviously suffer a financial catastrophe. Unless they obtain bankruptcy relief, most will never recover. In other words, for these people, going to law school destroyed their financial future instead of making it brighter.

Second, I was amazed by how much it costs just to take the bar-exam review course--$15,000! When I went to law school (a long time ago, I admit), the bar review course cost only $600, which I paid in installments with money I made working as a part-time law clerk. If I were graduating from law school today, I would be forced to take out a sizable loan just to prepare for my bar exam.

Finally, I was struck by the heartlessness of the online comments that followed the Wall Street Journal article about Ms. Campbell. One person commented that a person who would borrow $300,000 to attend law school obviously isn't smart enough to pass the bar.

As many commentators have written, a bleak job market and the skyrocketing cost of law-school tuition have combined to created a crisis in the legal profession.On average, people leave law school with $140,000 in student-loan debt only to enter an economy that only needs one lawyer for every two law-school graduates.

Greedy law schools and the American Bar Association created this crisis. The law schools set tuition levels far too high, and the ABA allowed law schools to admit far too many students.  As a result, thousands of law-school graduates share Leslie Campbell's predicament-- an onerous level of student-loan debt and no law job.

The ABA and the law schools have a moral obligation to advocate for reforms in the Bankruptcy Code that will allow impoverished law-school graduates to discharge their student loans in bankruptcy. But we haven't heard a peep out of the law schools or the ABA regarding bankruptcy reform for student-loan debtors.

References

Katy Stech. Judge Says Bankrupt Law Grads Can Cancel Bar Loans. Wall Street Journal, March 25, 2016.  Accessible at http://www.wsj.com/articles/judge-says-bankrupt-law-grads-can-cancel-bar-loans-1458941328

If I Had a Hammer! With great courage, distressed student-loan debtors all over America are going into the bankruptcy courts and petitioning for justice

If I had a hammer,

I'd hammer in the morning,
I'd hammer in the evening,
All over this land,
I'd hammer out danger,
I'd hammer out a warning,
I'd hammer out love between,
My brothers and my sisters,
All over this land.

It's the hammer of Justice,
It's the bell of Freedom,
It's the song about Love between my brothers and my sisters,
All over this land.

Peter, Paul & Mary

Our government has committed a grave injustice on working Americans--young and old--by dispensing student-money recklessly to millions of people who accepted the money in good faith in the hope that they could use their student-loan funds to educate themselves and have better lives.

In effect, the government has engaged in predatory lending--something you and I would go to jail for. It has spewed billions of dollars around the United States for the benefit of sleazy colleges--public, private, and for-profit--knowing that nearly half the people who got the loan dollars would not be able to pay off their student loans. And this money got sucked up by the college industry. 

After lending the money like a benevolent grandmother giving out Christmas checks to her grandkids, the government then morphed into a heartless monster. In fact, all three branches of our federal government have conspired to grind student-loan debtors into the dust.

• Congress passed laws making it extremely difficult for people to discharge their student-loan debt in bankruptcy.

• Congress enacted legislation that wiped out the statute of limitations for collection lawsuits against student-loan debtors--essentially destroying a key principle of the common law of equity.

• The Department of Education allows for-profit colleges to insert "you can't sue me" clauses in their college-admissions materials.

• The Supreme Court, an assembly of nine old geezers, upheld a federal law that allows the Department of Education to garnish Social Security checks of elderly people who defaulted on their student loans.

More than 40 million people carry student-loan debt, and 20 million can't pay it back. They are trapped like rats while the government and its collection agencies conspire to drive student-loan debtors out of the economy and out of the middle class into a dark world of hopelessness.  

Our government leaders pretend to be sympathetic. Senator Elizabeth Warren and Senator Charles Schumer coo soothingly about lower interest rates. President Obama spins out one long-term repayment plan after another.  Secretary of Education Arne Duncan issues press releases announcing lower default rates, knowing that DOE is cooking the books.

This scheme--driven by the greed and indifference of higher-education leaders--cries out for justice, for a return to common decency.

And a few people, like Peter Finch's character in the movie Network, have stood up and said, "I'm mad as hell, and I'm not going to take it anymore."  Going into the bankruptcy courts, often without attorneys, a few intrepid souls have applied to have their student loans discharged in bankruptcy. Not all of them have been successful, but all have shown great courage.

So in this posting, I pay tribute to the grit and the bravery of the people who filed adversary actions in the bankruptcy courts to throw off their student-loan debt:

Alethea Lamento, single mother of two, who was working full time but who was forced to live with relatives because she did not make enough money to house her family. A bankruptcy court discharged her student loans over the objection of the Department of Education.

Lamento v. U.S. Department of Education, 520 B.R. 667 (Bankr. N.D. Ohio 2014)

George and Melanie Johnson, a married couple with two children who lost their home in foreclosure and who defeated Educational Credit Management Corporation in an adversary proceeding in Kansas. And they did it without a lawyer!

Johnson v. ECMC, Case No. 11-23108, Adv. No. 11-6250 (Bankr. D. Kan. 2015)

Bradley Myhre, a quadriplegic working full time but did not make enough money to support himself because he was required to pay a fulltime caregiver just to feed and dress him and transport him back and forth to work. The Department of Education refused to forgive his student loans, but Myhre beat DOE in an adversary proceeding.

Myhre v. U.S. Department of Education, 503 B.R. 698 (Bankr. W.D. Wis. 2013)

Alexandra Acosta-Conniff, an Alabama school teacher and single mother of two, who went into the bankruptcy court without a lawyer and discharged student-loan debt over the opposition of Educational Credit Management Corporation.  

Acosta-Conniff v. ECMC, 536 B.R. 326 (Bankr. M.D. Ala. 2015)

Ronald Joe Johnson, a grandfather in his early 50s who took out student loans in the early 1990s to pursue a college degree he was unable to complete and is now living with his wife on about $2,000 a month. Unfortunately, Johnson did not have a lawyer, and the Department of Education persuaded a bankruptcy judge not to discharge Johnson's student loans. 

Johnson v. U.S. Department of Education, 541 B.R. 759 (N.D. Ala. 2015)

Michael Abney, a single father of two with a record of homelessness who is living on less than $1200 a month, in spite of the fact he is working fulltime as a delivery driver. Acting as his own attorney, he defeated the U.S. Department of Education in a Missouri bankruptcy court.

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

All these people are heroes, as brave in their own way as the farmers who defied the British army on Concord bridge in 1775, as brave as the heroes of the Alamo, as brave as the Okies who were driven off their farms during the Great Depression and took their families to Oklahoma in search of a better life.

Let us hope these heroes will inspire others to take the brave step of going into the bankruptcy courts to throw off their student-loan debt.  With each pasisng months, the bankruptcy courts are growing more sympathetic. 

Kelly v. Sallie Mae & Educational Credit Management Corporation: Fees, Interest and Penalties Are Dragging Down Student-Loan Debtors

Some policy experts argue that there is no crisis in the student loan program. Most students borrow only modest amounts of money, they say. The people who owe more than $100,000 are just a tiny fraction of the 41 million student-loan borrowers.

But this argument fails to take into account interest, penalties, and fees that borrowers accumulate if they run into financial trouble and can't make their loan payments.  Some distressed borrowers obtain economic-hardship deferments or forbearances that excuse them from making payments. But the fees and interest that accrue over time can double, triple, or even quadruple the size of their loan balance. When that happens, they are doomed.

And here's a case that illustrates my point: Kelly v. Sallie Mae, Inc. (2015). Laura Kelly borrowed about $24,000 to pay for her undergraduate degree in political science at Seattle University. She made payments for eight years, but she ran into financial trouble and filed for bankruptcy in 2008.

By the time Kelly entered bankruptcy, her debt had more than QUADRUPLED to $105,000 due to collection fees and accumulated interest. She filed an adversary proceeding to clear this debt, and a bankruptcy court gave her a partial discharge. The court concluded that Kelly was unable to pay off her loans, that her financial situation was not likely to improve soon, and that she had acted in good faith in the way she had handled her indebtedness.

Sallie Mae and Educational Credit Management Corporation, perhaps the most ruthless of the federal government's debt collectors, appealed the bankruptcy court's decision; and a federal district court reversed. The district court upheld the lower court's conclusion that Kelly could not pay back the hundred grand and still maintain a minimal standard of living. And it upheld the conclusion that Kelly's financial situation would not improve soon.

But the district court reversed the bankruptcy court's conclusion that Kelly had acted in good faith. The district court thought Kelly should have explored alternative payment plans, including a Public Service loan-payment program. And it also believed she could cut her expenses and make some sort of loan payment.  "In short," the district court ruled, "Ms. Kelly made no effort, much less good faith effort, to repay her loans."

Proceeding without a lawyer, Kelly appealed the district court's opinion to the next level: the Ninth Circuit Court of Appeals. The Ninth Circuit, considerably more compassionate than the district court, reversed the district court's decision and reinstated the bankruptcy court's partial discharge. This is what the Ninth Circuit said:

The bankruptcy court justified its conclusion that Kelly had acted in good faith with reference to its findings that, among other things, Kelly had maximized her income, had incurred only marginally excessive expenses, paid thousands of dollars toward her student debt over an eight year period before filing for bankruptcy, and at least minimally investigated payment alternatives such as debt consolidation, deferment, and a federal loan repayment program. . . . Moreover, though Kelly did not pursue loan repayment options, the bankruptcy court did not clearly err in its conclusion that Kelly had a good-faith belief that she was ineligible for the program, and that applying for the program would have been futile since she could not afford the payments after consolidation. 

The Ninth Circuit's Kelly decision is significant for three reasons:

1) First, Kelly successfully fought Sallie Mae and Educational Credit Management Corporation, two of the federal government's most sophisticated and relentless  debt collectors, without a lawyer all the way to the Ninth Circuit.  But look how long the process took. Kelly filed for bankruptcy in 2008, and the Ninth Circuit didn't issue its opinion until 2015. Most debtors wouldn't have the stamina for a seven-year court fight, which is what ECMC and Sallie Mae are counting on. Thus, Kelly should be saluted as a hero for fighting ECMC and Sallie Mae for so long.

2) Second, the Kelly decision is one of a string of recent federal appellate court decisions that ruled in favor of student-loan debtors. Kelly is not as significant as the Ninth Circuit BAP Court's Roth decision or the Seventh Circuit's Krieger decision. Nevertheless, by upholding the bankruptcy court's decision to grant Kelly some relief, the Ninth Circuit has signaled that it will support compassionate bankruptcy courts that rule in favor of student-loan debtors if those rulings are grounded in solid fact findings.

3) Third, and most importantly, Kellv v. Sallie Mae & ECMC dramatically demonstrates how penalties, accumulated interest, and collection fees can turn a manageable debt into a nightmare.  Kelly only borrowed $24,000 to pay for her college education. By the time she arrived in bankruptcy court, the debt had quadrupled in spite of the fact that she had made loan payments for eight years.

Kelly's case is not unusual. I know a student-loan debtor who borrowed around $80,000 to attend graduate school and made payments totally approximately $40,000. The Department of Education now says he owes $315,000!

Our government has designed a student-loan program that is totally insane. For many students, it is the fees, penalties and accumulated interest that are sinking them--not the amount of the original debt.

References

Educational Credit Management Corporation v. Kelly, 2012 U.S. Dist. LEXIS 56052 (Bankr. W. D. Wash. 2012), reversed, Kelly v. Educational Credit Management Corporation, 594 Fed. App. 413 (9th Cir. 2015).

Kelly v.Sallie Mae, Inc. & Educational Credit Management Corporation, 594 Fed. App. 413 (9th Cir. 2015).

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

Krieger v. Educational Credit Management Corporation, 713 F.3d 882 (9th Cir. 2013).

Roth v. Educational Credit Management Corporation, 409 B.R. 908 9th Cir. BAP 2013).  

An episode of The Walking Dead: Why did the U.S. Department of Education oppose bankruptcy relief for a quadriplegic student-loan debtor?

America's insolvent student-loan debtors are the walking dead

America's student-loan crisis is beginning to resemble an episode of The Walking Dead.  Like zombies, millions of distressed student-loan debtors stumble around the American landscape, basically pushed out of the economy and suffering in silence.

Just as Deputy Sheriff Rick tries to elude the zombies in Walking Dead, President Obama treads lightly, hoping to avoid encountering the millions of student-loan defaulters. Deputy Sheriff Rick doesn't have enough shotgun shells to dispatch all "the walkers" if they show up en masse; and the Obama administration doesn't have the intellectual or moral resources to deal with the masses of people whose lives were destroyed by their student loans.

Insolvent student-loan debtors: The Walking Dead

Basically the culprits who created the student-loan crisis or helped hide its magnitude--Congress, colleges and universities, think tanks like the Brookings Institution, the Department of Education, the College Board--are huddled in their bastions much like the characters in The Walking Dead, who holed up in an abandoned department store for awhile, hoping someone with a little courage and intelligence would come to their rescue.

Of course, if the United States was a humane society--which it isn't--people who were overwhelmed by student-loan debt could discharge their loans in bankruptcy. But Congress passed several laws making it quite difficult for insolvent student-loan debtors to get relief from the bankruptcy courts.

Still--a few brave souls make the effort, filing adversary actions in the bankruptcy courts, often without lawyers. And recently, the bankruptcy courts have begun to take notice of the nightmare that the student-loan program has become; and the courts have been discharging some student loans.

But every time an intrepid spirit tries to get relief from oppressive student loans in a bankruptcy court, lawyers for the Department of Education or one of the government's private debt-collection agencies show up to oppose relief. In fact, it is fair to say that the official position of the U.S. government--President Obama's government--is that no one should be relieved of student-loan debt in bankruptcy.

In virtually every student-loan bankruptcy case, the lawyers for DOE and the debt-collection companies argue that student-loan debtors should be put in 25-year income-based repayment plans (IBRPs) rather than have their loans discharged. Of course, this is a heartless position to take, and in some cases it is downright ridiculous.

In Stevenson v. Educational Credit Management Corporation, for example, Educational Credit Management Corporation argued that a woman in her 50s, who had a record of homelessness and was living on less than $1000 a month, should be put in a 25-year IBRP in spite of her record of poverty and in spite of the fact that this woman didn't file for bankruptcy until 25 years after she took out her first student loan.  And the bankruptcy judge agreed! I don't know what ultimately happened to this poor woman, but apparently she was forced into a repayment plan that would not end until a half century after she first borrowed money to go to college.

Myhre v. U.S. Department of Education: DOE opposes bankruptcy relief for a quadriplegic student-loan debtor

But for utter, depraved heartlessness, my nomination goes to the bankruptcy case of Myrhe v. U.S. Department of Education, in which the Department of Education opposed bankruptcy relief for Bradley Myhre, a quadriplegic student-loan debtor who had no muscle control below his neck.  Myhre had suffered a catastrophic spinal injury in a swimming-pool accident, but he borrowed money to attend college and was able to work full-time. Unfortunately, his salary wasn't enough to cover the cost of paying his full-time caregiver--the person Myhre employed to feed, dress and bathe him and drive him back and forth to work.

Incredibly, DOE--Arne Duncan's DOE--opposed bankruptcy relief for Myhre and argued that he shouldn't have spent money for cable television since that was money he could have applied to paying off his student loans.

Fortunately for Mr. Myhre, the bankruptcy court rejected DOE's arguments and granted him relief from his student loans. In fact, the court praised him for his courage. "Mr, Myhre is an articulate and personable young man," the court observed, "whose mobility is determined by his wheelchair and dexterity is only sufficient to operate a directional stick control." Myhre's daily life required "bravery and tenacity," the court wrote," and Myhre had "made a truly admirable effort to return to work in order to support himself financially rather than remain reliant on government aid" (Myhre v. U.S. Department of Education, 2013, p. 704).

The Department of Education's lawyers are like Daryl in The Walking Dead

Why did the Department of Education take such a heartless position regarding Mr. Myhre's student loans? I'll tell you why. DOE is driven to stop every student-loan bankruptcy because if the bankruptcy courts ever begin reviewing the plight of insolvent student-loan debtors from a humane perspective, the judges would start granting bankruptcy relief to these unfortunate souls. And if that ever happenes, millions of honest but unfortunate people--and I mean literally millions--will be filing for bankruptcy, which would topple the entire corrupt and putrid student-loan program.  DOE simply can't let that happen.

Much like a DOE lawyer opposing bankruptcy relief for student-loan debtors, Daryl quietly dispatches zombies

And so when DOE's lawyers go to court to oppose bankruptcy relief for student-loan debtors, they behave much like Daryl in The Walking Dead.  Daryl kills zombies silently with his crossbow, dispatching them efficiently without making a noise that would attract other zombies. Likewise, DOE attorneys overwhelm student-loan debtors who go to bankruptcy court without lawyers, beating them down with canned legal briefs they keep on the hard drives of their government computers for just such contingencies.

The metaphor isn't perfect, of course. The "walkers" that Daryl drills through the brain with his arrows are frightening creatures, while the poor folks dispatched by DOE's lawyers are decent human beings entirely deserving of our pity and our aid. And of course, I would be  slandering Daryl to compare him to a DOE attorney!

But overall, I like the metaphor. Our insolvent student-loan debtors are very much like the zombies in The Walking Debt, and the Department of Education's lawyers are quite like Daryl, quietly picking off the "walkers" who make their way into the bankruptcy courts.

I don't know how this series will end, but I feel pretty sure some scary episodes lie ahead. If there is any justice in the world, distressed student-loan debtors will rise up one day by the millions; and America's cowardly politicians, college presidents, and policy wonks will wind up eating stale canned goods while holed up in the real-life equivalent of The Walking Dead's abandoned Center for Disease Control.

Quiet! Don't let the walkers hear you.

References

Myhre v. U.S. Department of Education, 503 B.R. 698 (Bankr. W.D. Wis. 2013).

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

Stevenson v. Educational Credit Management Corporation, 436 B.R. 586 (Mass. Bankr. 2011).

By the thousands, student-loan borrowers are dropping out of income-based repayment plans

Thousands of student-loan borrowers are dropping out of income-based repayment plans, the U.S. Department of Education admitted recently. As reported by the Chronicle of Higher Education, almost 700,000 borrowers dropped out of the plans during the course of  just one year--57 percent of the total number of people who signed up for them.

Why did they drop out? DOE says they lost eligibility because they didn't file their annual income documentation--data the government needs to set borrowers' individual monthly payments.

What happened to those dropouts?  DOE says some of them signed up for economic-hardship deferments, some went back into standard 10-year repayment plans, and some slipped into delinquency.

This must be an astonishing turn of events for the Obama administration, which has aggressively promoted income-based repayment plans as a way to keep student-loan default rates down and give student borrowers some relief from high monthly loan payments. Most people who make monthly payments based on their income have lower payments than people who pay off their loans under the federal government's standard 10-year repayment plan.

There's a catch of course. Income-based repayment plans stretch borrowers' monthly payments out over 20 or even 25 years. Moreover, if borrowers' monthly payments are set too low, the payments will  not cover accruing interest, in which case student-loan debtors will see their loan balances go up rather than down, even if they faithfully make all their monthly payments.

Nevertheless, for student-loan borrowers who are unemployed. marginally employed, or simply borrowed too much money, income-based repayment plans are a lifeline because they can dramatically lower the amount of a student-loan borrower's monthly payments.

So what is the Obama administration doing to turn this situation around? According to the Chronicle,  the Department of Education will soon take over the process of notifying borrowers of their annual income-reporting obligations.  DOE is even consulting with "social and behavioral scientists" in order to craft more effective notices. Lots of luck, guys.

Personally, I was astonished to learn that so many people are falling out of income-based repayment plans--the most generous student-loan repayment programs that the federal government offers.. This development is simply another indication that the federal student-loan program is out of control.

Let's review the evidence one more time:

• The two-year student-loan default rate (the percentage of students from the most recent cohort who default on their loans within two years of beginning repayment) doubled in just seven years, according to DOE's own data. In 2007, DOE reported a two-year default rate of 4.7 percent. In 2013, the two-year default rate was 10 percent.

• Almost 9 million people in the repayment phase of their loans have economic-hardship deferments and are not making payments on their student loans. Meanwhile, their loan balances are increasing due to accruing interest.

• About 1.5 million people have signed up for income-based repayment plans, but more than half of them have already dropped out due to the fact that they didn't file their obligatory annual income reports.

We can tinker with the student-loan program in many ways as the Department of Education and the policy tanks are now doing. But the fact remains that millions of student-loan debtors are under water financially and have basically dropped out of the economy. This reality is illustrated by the fact that more that half of the people in the generous income-based repayment programs are not bothering to file their annual income reports.

The only way out of this morass is to admit how bad the crisis is, which will require DOE to tell the truth about the student-loan default rate. Then we need to crack down on higher-education institutions that are exploiting college students. Finally, we must open up the bankruptcy process to allow honest but unfortunate student-loan debtors to discharge their student loans in bankruptcy.

Bleep it, Dude. Let's go bowling. 

References

Robert Cloud & Richard Fossey, Facing the Student-Debt Crisis: Restoring the Integrity of the Federal Student Loan Program. Journal of College & University Law, 40, 467-498.

Kelly Field. Thousands Fall Out of Income-Based Repayment Plans. Chronicle of Higher Education, April 2, 2015.

Who turned on the gas at Auschwitz? Reflections on student-loan debtors in bankruptcy

Gas Chamber Door at Auschwitz--Looking Out

My father spent most of World War II as a a prisoner of war in Japanese concentration camps.

He was captured in the Philippines when the entire American army surrendered to Japanese forces in April 1942, and he survived the Bataan Death March. He remained a prisoner until August 1945, after atomic bombs were dropped on Hiroshima and Nagasaki.

Two thirds of the men who were captured with my father did not survive the War. Some were summarily executed during the Bataan Death March or later, some died of starvation or disease, and a number committed suicide. The experiences of the American prisoners of war in the Pacific are never compared to the Holocaust, but perhaps they should be.

In any event, my father's concentration camp experiences (which he often talked about when I was a child) have caused me to ponder again and again this question: How can people lose their humanity to the extent that they can kill defenseless people without remorse and even without thinking about it seriously? Who turned on the gas at Auschwitz day after day as all those Jews were gassed to death? And did those people go home to their families when their work days ended to eat a nice meal and perhaps listen to the radio?

Recently, I returned to this question  after reading several of the published bankruptcy decisions involving student-loan debtors.  In the Myhre case, for example, how could attorneys for the U.S. Department of Education oppose the discharge of student loans owed by a paraplegic man who was working full time and whose expenses exceeded his income?

And in the Stevenson case, how could lawyers for Educational Credit Management Corporation argue that a woman in her fifties who had a history of homelessness and was living on less than $1000 per month, be placed on a 25-year income-based repayment plan to pay off her student loans?

And in the Roth case, how could attorneys for the same company--headed at the time by a man who made more than $1 million dollars a year), stand before a bankruptcy judge and maintain that a woman in her sixties, who had chronic health problems and was living entirely off Social Security income of less than $800 a month, should not have her student loans discharged in bankruptcy?

I listened recently to the audio of a bankruptcy proceeding in California involving a man with more than a quarter million dollars of student-loan debt.  The man brought an adversary proceeding seeking to discharge his loans in bankruptcy.  His suit was opposed by two parties: the U.S. Department of Education and a private loan company.

Judging by their voices, the U.S Department of Education and the private company were both represented by young women.  Both argued that the man--in his 50s and making less than $2,000 a month, should not have his student-loan debts discharged.

I imagine both women graduated from good law schools, are kind to animals, and have progressive views on the political issues of the day--global warming, for example.

So how could these smart and presumably sensitive young women be working for a governmental entity and a private company engaged in the reprehensible business of stopping distressed student-loan debtors from bankruptcy relief?

I don't mean to compare these two young lawyers to the people who operated the Nazi death camps, but the insensitivity to the unjust suffering of others is somewhat similar. Millions of Americans are burdened by student-loan debt that is totally unmanageable and will never be paid off; and yet our government employs lawyers to prevent them from obtaining bankruptcy relief.

And, let us remind ourselves that the U.S. Department of Education, the agency that sought to deny bankruptcy relief to a paraplegic student-loan debtor in the Myhre case, answers to a president who won the Noble Peace Prize.

How long can the injustice and suffering spawned by the federal student loan program go on? A long time I fear. Slavery existed in this country for well over 200 years.

But ultimately, this trillion-dollar house of cards we call the federal student loan program will come tumbling down; and when it collapses it will take American higher education with it and perhaps the American economy.

That is something for American college presidents to think about as they fly around in their private jets and drink premium liquor with wealthy alumni.  University foundation board members should think about it as well before they execute multi-million dollar contracts with celebrity football coaches.

And mom and pop should think about it too before they encourage little Suzie and little Johnny to take out loans to go to an over-priced, pretentious East-Coast college.  Because when little Suzie and little Johnny take out those loans, they will live with them until they are payed off  in full or until little Suzie and Little Johnie are dead.

And if they try to discharge their loans in bankruptcy, a bright young lawyer who graduated from an elite law school--someone very much like the person who turned on the gas at Auschwitz--will be in federal bankruptcy court to keep that from happening.

There's No Fool Like an Old Fool: The New York Times Just Doesn't Get It When It Comes to the Student Loan Crisis

Today, the New York Times published an editorial on the Obama administration's efforts to encourage student-loan  servicers to be less rapacious.  According to the Times, the government is changing the incentive structures so that loan-collection companies have a financial incentive to help rehabilitate student loans that are delinquent instead of pushing borrowers into default.

The Times approves of reforms that will encourage students to sign up for Income-Based Repayment Plans, plans that will have borrowers paying a percentage of their income for the next 25 years. Some reform!  The Times also likes the new rule that will give more weight to customer satisfaction surveys "in determining how well servicers do their jobs."  That idea is about as radical as Aunt Sadie's Buick Regal.

The Times editorial then goes on to say that Obama's reform efforts don't go far enough. So what does the Times suggest? "More should be done to improve competition and transparency [among loan servicers]," the Times recommends.  Borrowers should be able to jump from one loan servicer to another, the Times adds, and "set significant penalties for poor practices and create a portal where borrowers can get information about their accounts and report abuses to the Education Department instead of to the abusers."

This is the kind of timid advice you would expect from a newspaper that gets a lot of its revenue from advertising luxury goods that are targeted at its fat cat readers. I'm glad the Times wasn't in charge of negotiating with Adolph Hitler during World War II. It probably would have editorialized that Hitler needed to paint the concentration-camp barracks a more soothing color.

The Times does not seem to realize that people who fall into the hands of the student-loan servicers are dealing with truly heartless entities.  Here are some examples:

•  Educational Credit Management Corporation (ECMC) opposed bankruptcy relief for a 63-year old man who had been unemployed for 12 years, whose home was going into foreclosure, and who had been living with his wife below the poverty level.  This man had accumulated student-loan debt in the neighborhood of $240,000. Murphy v. Educational Credit Management Corporation (2014). 
•  ECMC opposed bankruptcy relief for an elderly student-loan defaulter who had chronic health problems and who was living solely on Social Security checks of less than $800 a month. Roth v. Educational Credit Management Corporation (2013). 
•  ECMC opposed bankruptcy relief for another elderly woman with student-loan debt that was more than twenty years old and who had a salary of about $500 per month and a history of homelessness. Stevenson v. Educational Credit Management Corporation (2011).

How much do ECMC executives pay themselves to chase down poor and elderly student-loan debtors? A lot. Bloomberg reported in 2012 that Richard Boyle, ECMC's Chief Executive at the time, made $1.1 million  in 2010. I could not find more recent compensation information on Educational Credit Management Corporation's new CEO, a guy named Dave Hawn, but I'll bet that Hawn is making at least as much as Boyle made four years ago.

So, New York Times editorialists, take your tepid and inadequate editorial recommendations and stick them "where the sun don't shine"--which is within your timid and obsequious little hearts.

You want to clean up the student-loan collection business? Here are some suggestions:

1) First, President Obama and Secretary of Education Arne Duncan should instruct all the student-loan servicers not to oppose bankruptcy relief for any elderly student-loan debtor who is living solely on Social Security, who has suffered long-term unemployment, or who has no real prospect of every paying off student-loan debt.  And they should follow up with regulations or legislation that would make those instructions stick.

2)  The government needs to put an upper-limit on fees and accrued interest that get tacked on to student-loan defaulters' total loan obligations.  Several bankruptcy decisions have documented that debtors' original student loan balances had more than doubled by the time they filed for bankruptcy due to accrued interest, penalties and fees.

3) The Obama administration should propose amendments to the bankruptcy laws that will allow distressed student-loan debtors who took out loans in good faith to discharge their student loans in the bankruptcy process without going through expensive and traumatic adversary proceedings.

4) Obama should propose legislation to reinstate a reasonable statute of limitation on the collection of delinquent student-loan debt--say six years, which is the same time period that applies to the collection of most monetary obligations.

5) The President should demand legislation that would stop the federal government from garnishing the Social Security checks of elderly student-loan defaulters who are totally dependent on their Social Security pensions.

6) All the companies participating in the student-loan servicing industry should be required to post the compensation of all its senior executives online so that Americans can see just how much money so-called non-profit agencies are making on the suffering of student-loan debtors.

All these recommendations are reasonable and all are more humane than the puny little recommendations the Times made in its editorial page.  If the Times can't offer any suggestions more robust than it offered in its September 8th issue, then it should keep its mouth shut about the student-loan crisis and admit that all it is really concerned about when it comes to domestic economic issues is supporting Barack Obama and maintaining Democratic control of the White House.

References

A Fairer Shot for Student Debtors. New York Times, September 8, 2014, p. A16. 

John Hechinger. Taxpayers Fund $454,000 Pay for Collector Chasing Student Loans. Bloomberg.com, May 15, 2013. Accessible at: http://www.bloomberg.com/news/2012-05-15/taxpayers-fund-454-000-pay-for-collector-chasing-student-loans.html

Brown, M., Haughwout, A., Lee, D., Mabutas, M., and van der Klaauw, W. (2012). Grading student loans. New York: Federal Reserve Bank of New York. Accessible at: http://libertystreeteconomics.newyorkfed.org/2012/03/grading-student-loans.html

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

Lockhart v. United States, 546 U.S. 142, 126 S. Ct. 699 (2005).

Murphy v. Educational Credit Management Corporation, 511 B.R. 1 (D. Mass. 2014).

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

Stevenson v. Educational Credit Management Corporation, 463 B.R. 586 (Bankr. D. Mass. 2011). 

"Naked to mine enemies": A modest proposal to help destitute student-loan debtors get attorneys to represent them in bankruptcy court

A great many destitute student-loan debtors file for bankruptcy without the aid of an attorney. This is not surprising since the only reason these poor people are in a bankruptcy court is because they're broke.

For example, Janet Roth, whose case I discussed in an earlier blog, appeared before the Ninth Circuit's Bankruptcy Appellate Panel without a lawyer.  At the time of the bankruptcy proceedings, Ms. Roth was living on her monthly Social Security check--only $774 a month. Obviously, she had no money to pay an attorney to  represent her in bankruptcy.



Bankrupt student-loan debtors need lawyers
Photo credit: carinsurancecomparison.org

On the other hand, student-loan creditors--agencies like Educational Credit Management Corporation and Sallie Mae--always appear in bankruptcy court with excellent attorneys. The creditors' lawyers know bankruptcy law inside and out, and they typically argue that the poor saps who enter bankruptcy are not entitled to a discharge of their student-loan debts. I don't know how these lawyers sleep at night, but I hope they sleep badly.

This inequity of legal resources obviously works to the student-loan debtor's disadvantage. Indeed, a study by Pardo and Lacy (2009) found that student-loan debtors got better outcomes in bankruptcy if they were represented by experienced bankruptcy lawyers.

Occasionally, indigent student-loan debtors obtain informal legal support from attorneys or non-lawyers with bankruptcy expertise. These people may "ghost write"  a debtor's pleadings without formally representing the debtor in court.

But some courts frown on this practice. In a bankruptcy decision filed this year, a federal court in Virginia strongly condemned the practice of ghost writing. "The Court emphasizes that the practice of ghost-writing is in no way permissible in the Eastern District of Virginia, or any federal court for that matter," the court wrote. In the court's view, such conduct amounted to "the unauthorized practice of law" (Greene v. U.S. Department of Education, 2013, *26-27).

I would like to make a modest proposal for getting better legal representation for bankrupt student-loan debtors. Currently, the law schools are turning out far more lawyers than the job market needs. In fact, a few law schools have been sued by their alumni for allegedly making false representations about their  graduates' job prospects.

Why don't these law schools organize legal aid clinics that specialize in representing bankrupt student-loan debtors?  There are certainly enough unemployed lawyers to staff these clinics. The clinics would employ lawyers who would otherwise be unemployed and give them some legal experience that would later help them obtain permanent employment.

Law schools might consider the sponsorship of legal aid clinics for student-loan debtors as a sort of penance for their hubris.  It is now well established that third- and fourth-tier law schools charged high tuition rates to students who had only dim prospects of ever getting jobs that would pay well enough to allow them to comfortably pay back their student loans. Wouldn't it be a good thing for these law schools to do something positive to ease the plight of overburdened student-loan debtors?


References

Greene v. United States Department of Education, 2013 U.S. Dist. LEXIS 143678 (E.D. Va. Oct. 1 2013)

In re Roth, 490 B.R. 908 (9th Cir. BAP 2013).

Raphael Pardo & Michelle Lacey. The Real Student-Loan Scandal: Undue Hardship Litigation. 83 American Bankruptcy Law Journal 179 (2009). The American Bankruptcy Law Journal

Educational Credit Management Corporation makes good money chasing destitute student-loan debtors: The Obama Administration should take action

Richard Boyle, CEO of ECMC
He made $1.1 million in 2010

Educational Credit Management Corporation is a nonprofit company that collects on defaulted student loans for the federal government. Just because it is nonprofit, however, doesn't mean its employees don't make a lot of money. According to a news story posted on Bloomberg.com, Richard Boyle, ECMC's chief executive officer, made $1.1 million in 2010.

Other ECMC employees are also making good money.  Dave Hawn, ECMC's chief operating officer, made about half a million dollars in 2010. Joshua Mandelman, an ECMC debt collector, made $454,000. And ECMC directors also do pretty well. According to the Bloomberg story, they make as much as $90,000 a year.

How does ECMC make its money? It gets a small fee for helping distressed student-loan borrowers avoid default. But it makes much more money when it collects money from student borrowers who defaulted. By law, ECMC (and other similar companies) "can receive as much as 37 percent of a borrower's entire loan amount, half in collection costs and half in taxpayer-funded commissions" (Bloomberg.com).

What a sleazy business.  People are getting rich chasing down student-loan defaulters, many of whom are unemployed and destitute.

But perhaps the most disturbing aspect of ECMC's business is the position it takes when student-loan debtors file for bankruptcy. In several cases, ECMC has argued that bankrupt student-loan debtors should not have their loans discharged in bankruptcy. Instead, ECMC has argued, these debtors should be placed in income-based repayment plans that can last as long as 25 years.

Roth case: Elderly woman with health problems seeks bankruptcy relief from student loans

For example, in a recent case, Janet Roth, a 64-year old woman, filed for bankruptcy, seeking to discharge $95,000 in student loan debt.  Actually, she only borrowed $33,000, but her debt tripled due to fees and accrued interest.

At the time of the bankruptcy proceedings, Roth was unemployed and living entirely on her monthly Social Security check--only $774.  In addition, she suffered from several serious health conditions, including diabetes, macular degeneration, and depression.

Now most people would think that Ms. Roth was a good candidate for bankruptcy. But in court proceedings, ECMC challenged her request for bankruptcy relief from her student loans. ECMC argued she should have signed up for a 25-year income-based repayment plan, a plan that would have ended when she was almost 90 years old!

Fortunately, the Bankruptcy Appellate Panel for the Ninth Circuit Court of Appeals was sympathetic to Ms. Roth's plight. The court said Ms. Roth had acted in good faith regarding her student-loan obligations, and it discharged her of the debt.

Can you imagine? A company run by a guy who makes more than a million dollars a year argued that an elderly woman with health issues and living on her Social Security check should make monthly payments on her student loans for 25 years! These ECMC guys make Ebenezer Scrooge look like Mother Teresa.

Want another example? In In re Stevenson (2011), an elderly woman with a history of homelessness  and who was living on less than $1,000 a month, was denied relief from her student-loan debt by a bankruptcy court in Massachusetts. ECMC opposed her effort to have her student loans discharged, and a court essentially forced Ms. Stevenson into a 25-year income-based repayment plan. Like Ms. Roth, Ms. Stevenson will be nearly 90 years old when her student-loan debt is discharged.

And take a look at the Krieger case. In Krieger v. Educational Credit Management Corporation (2013), ECMC opposed the discharge of a 53 year old woman's student-loan debt even though she was unemployed and had never made more than $12,000 a year during her entire working life.

President Obama Should Take Executive Action to Aid Elderly Student Loan Debtors

Ms. Roth, Ms. Stevenson and Ms. Krieger are not alone. According to a report prepared for the Federal Reserve Bank of New York, about five percent of people who are behind on their student-loan payments are 60 years old or older. Undoubtedly, many of these people are living almost solely on their Social Security checks or are destitute.

Surely, elderly student-loan defaulters are entitled to some relief. Unfortunately, their Social Security checks are subject to garnishment, and some of them are running into opposition when they file for bankruptcy.

President Obama likes to get things done through executive orders.  So how about this for a plan? President Obama should direct all student-loan collection agencies not to oppose elderly people's efforts to discharge their student loans in bankruptcy.  And he should stop the garnishment of elderly people's Social Security checks for the purpose of collecting on student loans.

President Obama can talk all he wants about how he wants to ease the burden on people who borrow money to attend college. But there are things he can do--simple things--that would ease the burden on elderly student-loan defaulters. So why doesn't he take action?

References

John Hechinger. Taxpayers Fund $454,000 Pay for Collector Chasing Student Loans. Bloomberg.com, May 15, 2013. Accessible at: http://www.bloomberg.com/news/2012-05-15/taxpayers-fund-454-000-pay-for-collector-chasing-student-loans.html

Brown, M., Haughwout, A., Lee, D., Mabutas, M., and van der Klaauw, W. (2012). Grading student loans. New York: Federal Reserve Bank of New York. Accessible at: http://libertystreeteconomics.newyorkfed.org/2012/03/grading-student-loans.html

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

Lockhart v. United States, 546 U.S. 142, 126 S. Ct. 699 (2005).

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

Stevenson v. Educational Credit Management Corporation, 463 B.R. 586 (Bankr. D. Mass. 2011). 

Student-Loan Defaulters: Not All of Them are Young

What is your image of the typical person who defaults on college student loans? Do you envision a young and irresponsible college graduate—someone who ripped off the federal student loan program by borrowing money to get a fancy college degree and then refused to pay it back? If so, your image would be inaccurate. A great many defaulters are from low-income families. Often they attended a for-profit institution that provided them with little value. And—this may come as a surprise—many student-loan defaulters are not young.

Researchers for the Federal Reserve Bank of New York examined the loan status of 37 million student-loan borrowers. Fourteen percent of these borrowers—approximately 5.4 million people, have at least one past-due student loan account. According to the Federal Reserve Bank report, only about 25 percent of student-loan borrowers with past due balances are under the age of 30. Forty percent of the student loan borrowers with payments in arrears are at least 40 years old. Almost one delinquent borrower in six (17.7 percent) are fifty years old or older. And about five percent of the people who are behind on their student loan payments are at least 60 years old (Brown, Haughwout, Lee, Mabutas, and van der Klaauw, 2012).

Why are so many people falling behind on their student loans in midlife or late in life? There are several explanations.

First, some of the older student-loan borrowers are people who borrowed money in midlife, expecting to increase their income potential. Then—due a variety of life circumstances, these borrowers did not earn the income they expected.  Maybe they became ill, lost their job, or were the victims of the recent economic downturn. As a consequence, some of these older student-loan borrowers fell behind on their loans.

Second, some of the nation’s older delinquent borrowers obtained economic hardship deferments on their loans, which temporarily exempted them from making regular student-loan payments. For a majority of these people, interest continued to accrue on their loans during the deferment period, causing their loan balances to grow.  Consequently, when these borrowers began making loan payments again after their deferments expired, they sometimes had a swollen loan balance that they simply could not repay.

Finally, I suspect some of the older people who are behind on their student-loan payments are people who had previously elected to pay off their loans under the income-contingent repayment option, which extends the loan repayment period out to 25 years. For some older people, the prospect of making student-loan payments during their retirement years may have seemed too daunting, causing them to stop making payments on their loans.

Older people who default on their student loans receive no dispensation from their loan obligations due to their age. In fact, in Lockhart v. United States (2005), the Supreme Court has ruled that a student-loan defaulter’s Social Security checks can be garnished.  Thus, some elderly people who failed to pay back their student loans will face severe financial hardship if they are totally dependent on Social Security income during their so-called “golden years.”

Obviously, no one would recommend a government policy that would make it easier for people to default on their student loans. Nevertheless, garnishing the Social Security checks of elderly student loan defaulters is an overly harsh measure. Congress needs to pass legislation that bars lenders and collection agencies from garnishing a student-loan defaulter’s Social Security check.

References

Brown, M., Haughwout, A., Lee, D., Mabutas, M., and van der Klaauw, W. (2012). Grading student loans. New York: Federal Reserve Bank of New York. Accessible at: http://libertystreeteconomics.newyorkfed.org/2012/03/grading-student-loans.html

Lockhart v. United States, 546 U.S. 142, 126 S. Ct. 699 (2005).