Friday, August 11, 2017

Patricia McDade owes one third of a millon dollars in student loans, which she cannot discharge in bankruptcy

Patricia McDade owes one third of a million dollars in student loans, which she cannot discharge in bankruptcy. In a recent decision, Bankruptcy Judge Patrick M. Flatley ruled that McDade could make payments on her enormous debt and still maintain a decent standard of living.

"McDade has not demonstrated that she is unable to maintain a minimal standard of living while repaying at least some portion of her student loans," Judge Flatley wrote. Therefore, in Judge Flatley's opinion,  McDade did not meet her burden of showing that she would suffer "an undue hardship" if she was required to pay back her loans.

Judge Flatley made a mistake. Patricia McDade is 46 years old, and her student loan debt amounts to $333,000 (including $6,000 for her children's education). Although her annual salary was $63,000 at the time of her adversary proceeding, she represented that she was in danger of losing her job. There is no way Ms. McDade can pay back a third of a million dollars in student loans and maintain a decent standard of living, even if she remains permanently employed at her current salary.

Judge Flatley did not specify how much of McDade's student loan debt was accrued interest, but she undoubtedly borrowed far less than $327,000. In fact, McDade argued that the accrued interest on her debt should be discharged even if her underlying loans were not forgiven. But Judge Flatley rejected that argument.

I think Judge Flatley suspected that some of Ms. McDade's expenses were excessive. He pointed out that her expenses rose 20 percent over a ten-month period and that the increase coincided with a pay raise she got at her job. And in fact, she listed a couple of arguably questionable expenses: a $486 monthly car payment and charitable contributions totally $525 a month. She also listed expenses related to her adult daughter.

But McDade was driving a 2014 Jeep Patriot--a very modest car. No bankruptcy court has said student-loan debtors are required to drive a junker in order to qualify for bankruptcy. And if some of McDade's expenses were excessive--the charitable contributions, for example--Judge Flatley might have granted her a partial discharge to compensate for the excessive expenditures. This is what Judge Pappas did in the McDowell case. (Ms. McDowell had purchased a motorcycle.)

Undoubtedly, Ms. McDade can keep her head above water financially if she enters an income-driven repayment plan (IDR) that will require her to make relatively modest monthly payments.  If she goes that route, however, her payments almost certainly will be insufficient to cover accruing interest on her enormous student-loan debt. And an IDR will require her to make monthly payments for 20 or even 25 years.

Ms. McDade may have made some mistakes in the way she handled her student loans, but denying her bankruptcy relief will not accomplish anything useful. She will probably wind up making monthly payments under an IDR until she reaches retirement age, and these payments will hinder her ability to buy a home or save for her retirement.

In fact, Patricia McDade is one of many student-loan debtors who have entered bankruptcy court owing far more than they borrowed due to accrued interest and fees. In my view, it is not in the public interest to shove all these unfortunate individuals into IDRs just to maintain the fiction that the loans aren't in default.

For all practical purposes, Ms. McDade's student loans are in default, and they will remain in default even if she enters an IDR and faithfully makes monthly payments for the next quarter century.

Photo credit:


McDade v. Direct Subsidized Consolidated Loan, Case No. 15-bk-52, Adv. Proc. No. 15-ap-27 (Bankr. N.D. Va. 2017).

McDowell v. Educational Credit Management Corporation, Bankruptcy Case No. 10–40845–JDPAdv. Proceeding No. 14–08005–JDP, 2016 WL 2603552 (Bankr. D. Idaho 2016).


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