Showing posts with label 2005 Bankruptcy Reform Act. Show all posts
Showing posts with label 2005 Bankruptcy Reform Act. Show all posts

Saturday, March 21, 2020

The coronavirus pandemic and broad relief for battered student-loan debtors: Congress needs to go big or go home!

The coronavirus pandemic rolls along like a tropical storm gathering force in the Gulf of Mexico.
Every day, it kills more Americans and further batters the national economy. The airline industry, the travel industry, and the restaurant business are begging for financial assistance to help them survive an economic crisis that no one saw coming.

PresidentTrump and Congress are working on a $2 trillion aid package to assist industries that have been hit hardest by the COVID-19 outbreak and provide cash assistance to individuals who lost their jobs or their businesses due to the pandemic.

Lawmakers also recognize that student-loan debtors need relief. Even before the pandemic, millions of college-loan borrowers were struggling to pay off their loans. Now--as the unemployment rate rises and whole industries collapse, a lot of student-loan debtors have their backs to the wall.

Republicans and Democrats have both proposed some form of assistance for student debtors. The Republicans recommend giving students a three-month break from their student-loan payments with no interest accruing.  The Democrats want the Department of Education to make student-loan payments on borrowers' behalf for as long as the national emergency lasts.

These proposals are a good start, but they do not go far enough. More than 45 million people have outstanding student loans, and less than half of them can pay them back. As President Trump might say, it's time to "go big" when we think about student-loan relief.

First of all, let's take a look at Senator Bernie Sander's proposal for total student-loan forgiveness—a $1.6 trillion-dollar bailout. Let's also examine Senator Elizabeth Warren's plan for loan forgiveness up to $50,000 per debtor. These ideas are not as wacky as some commentators have made them sound.

Regarding Bernie's idea, let's face facts. More than 8 million people are in long-term, income-based repayment plans, and most of these people are not paying down the interest on their loans. In fact, their loan balances grow with each passing month due to accruing interest. Millions more are in default or have their student loans in deferment. They're not paying their loans back either.

What's the point of pretending the student-loan scheme is a solvent federal program? It's not.  Bernie's plan to wipe out all student debt and offer a free college education is a logical proposal.

Senator Warren's plan to help student debtors also makes sense.  She wants to cap debt relief at $50,000, and that would help a great many people. After all, as  Don Trooper and colleagues recently reported in The Chronicle of Higher Education, people with small loan balances are more likely to default on their loans than people who owe $100,000 or more.

Forgiving student debt for individuals who ow relatively small amounts would help a lot of debtors who took out student loans to attend for-profit colleges and trade schools and didn't benefit from their educational experience.  That would be a good thing.

But if we really want to "go big," Congress must do two straightforward things. First, it must strike the"undue hardship." language from the Bankruptcy Code and allow insolvent student-loan borrowers to discharge their college loans in bankruptcy like any other nonsecured consumer debt. Second, it must repeal those provisions of the 2005 Bankruptcy Reform Act that made it more complicated and more expensive for beaten-down debtors to file for bankruptcy.

The very purpose of bankruptcy in American law is to give honest but unfortunate debtors a fresh start. Lawmakers need to remember that now as we enter into this century's Great Depression.

The 2020 Depression will look a lot like the Depression of the 1930s.









Tuesday, March 17, 2020

Joe Biden and the 2005 Bankruptcy Reform Act: "It's not personal. It's strictly business."

The 2020 presidential election is about eight months away, and I'm not going to tell you how to vote. If you hate Trump, you'll vote for Biden. If you think Biden is suffering from dementia, you'll vote for Trump.  And by election day, Biden or Trump will probably be your only choice.

Regardless of their political affiliation, all student-loan borrowers who are drowning in debt will want the next President to do one thing: reform the bankruptcy law. Specifically, they will want the next President to pressure Congress to repeal the Bankruptcy Reform Act of 2005 and to remove the "undue hardship" language from the Bankruptcy Code.

The Bankruptcy Reform Act of 2005--named with unintended irony--made it more difficult for Americans to discharge credit card debt in the bankruptcy courts, and it made the bankruptcy process more expensive and more difficult for beaten-down debtors.

 According to Senator Elizabeth Warren:
After the bill passed, bankruptcy filings went down permanently by 50%, and the number of insolvent people went up permanently by 25%. By making it harder for people to discharge their debts and keep current on their house payments, the 2005 bill made the 2008 financial crisis significantly worse: experts found that the bill “caused about 800,000 additional mortgage defaults and 250,000 additional foreclosures.” 
The law also made private student loans almost impossible to discharge in bankruptcy. Before its passage, debtors could not discharge federal student loans in bankruptcy unless they could show "undue hardship." After the bankruptcy reform law was passed, private loans were also nondischargeable unless a debtor could show undue hardship.

The law was a Republican-backed bill, which Senator Ted Kennedy scathingly criticized. “This legislation breaks the bond that unites America, it sacrifices Americans to the rampant greed of the credit card industry,” Kennedy said.

But many Democratic senators crossed party lines and voted with the Republicans.  One of those aisle-crossing Democrats was Joe Biden. Senator Biden claimed the new law would cut down on abuses in the bankruptcy system. In fact, there was little evidence that debtors were scamming the bankruptcy courts.

In my view, Biden disguised his motives for voting in favor of the bankruptcy reform bill. In reality, Biden was doing the bidding of the corporate banks, which have donated millions to his campaign coffers over the years. To borrow a quote from The Godfather, Biden's vote wasn't personal; it was strictly business.

Now, however, Mr. Biden is singing a different tune. As reported by Matthew Yglesias in Vox,  Biden recently changed his position on the 2005 law. He now endorses the views of Senators Elizabeth Warren and Bernie Sanders, who have called for its repeal.

This is good news for student-loan debtors, but I think Mr. Biden needs to express his change of views more forcefully. Student debtors need to hear Biden explicitly call for the repeal of the 2005 Bankruptcy Reform Act and the abolition of the "undue hardship" language in the Bankruptcy Code. If he does that, Biden will win a lot of votes in the November election.



Biden and the 2005 Bankruptcy Reform Act: It wasn't personal. It was strictly business.

Friday, March 6, 2020

Retirees with student-loan debt should ask elderly presidential candidates what they plan to do about the student-loan crisis

Last month, the New York Times ran a story about retirement-age Americans who are struggling to pay off student-loan debt. As reported by Times writer Tammy La Gorce, 2.8 million Americans in their 60s have student-loan obligations, a number that has quadrupled since 2005.

The average debt load for elderly student-loan debtors has nearly doubled between 2012 and 2017--from $12,100 to $23,500. And, according to the Times story, most student-loan debt held by older Americans was taken out to pay for for their children's education.

Many of these elderly student-loan debtors jeopardized their own retirement by borrowing money to get their kids through college. And these debts are virtually impossible to discharge in bankruptcy.

It is now inevitable that the United States will elect an old guy for President in November: Donald Trump, age 73; Joe Biden, age 77; or Bernie Sanders, who is 78.  Will they be sympathetic to senior Americans who are burdened by student debt?

Why don't we inquire? If we get an opportunity to question Bernie, Biden, or Trump, these are the questions we should ask.

First, do you support the bill that Congressman John Katko introduced in Congress to eliminate the "undue hardship" provision in the Bankruptcy Code so that insolvent Americans can discharge student debt in bankruptcy just like any other unsecured consumer debt? Yes or no.

Second, do you support the repeal of the so-called "Bankruptcy Reform Act" that made it more difficult and more expensive for financially distressed Americans to get bankruptcy relief? Yes or no?

Third,  do you support legislation that would prohibit the federal government from garnishing the Social Security checks of retired Americans who defaulted on their student loans? Again, yes or no?

And here are some candidate-specific questions to ask:

President Trump, you indicated that the Department of Education is looking at some options for relieving the suffering of college borrowers who are burdened by student-loan debt? Precisely what do you have in mind?

Senator Sanders, do you have any plan for addressing the student-loan crisis other than forgiving $1.6 trillion in student debt?  If you are elected President, and Congress refuses to approve your loan-forgiveness promise, do you have any other ideas about relieving the student-debt crisis?

Former VP Joe Biden, do you regret your role in passing the notorious Bankruptcy Reform Act of 2005? Would you work to repeal the law if you are elected President?  Would you at least repeal the provision that makes private student loans almost impossible to discharge in bankruptcy?

Curiously, although the student-loan program is totally out of control and burdens 45 million Americans, the media has not pressed any of the presidential candidates about the student-loan crisis.

College and university leaders have said almost nothing about this catastrophe, and they won't be asking the presidential candidates any awkward questions about the federal student-loan program. Harvard, for example, took in $4 billion in federal money between 2011 and 2015. The student-loan program works just fine for America's wealthiest university.

But ordinary Americans need to know what Bernie, Biden, and Trump plan to do if they are elected President. Ask those questions yourself because the press and the universities aren't interested.


Harvard University President Lawrence Bacow: Student-loan crisis? What student-loan crisis?


Wednesday, July 19, 2017

Missing Paperwork for Private Student Loans May Make Them Uncollectible: Boo Hoo!

Some debt collectors for private student loans are finding it difficult to collect because they can't prove they actually own the debt.  According to the New York Times, "Judges have already dismissed dozens of lawsuits against former students, essentially wiping out their debt, because documents proving who owns the loans are missing."

A little background. The federal government is the largest student-loan lender; it now holds $1.4 trillion in outstanding federal-loan debt.  But there is also a smaller private student-loan market. About $108 billion is private student loans is held by banks and private financial agencies like Sallie Mae.

National Collegiate Student Loan Trusts, an umbrella name for 15 trusts, holds about $12 billion of the total private student-loan debt. More than 40 percent of that debt--$5 billion--is in default; and National  Collegiate has been aggressively pursuing defaulters in court. According to the Times, the trusts brought 800 collection cases last year--an average of 4 a day.

But National Collegiate has a big problem: when it goes to court it often cannot prove it is legally entitled to collect on the debt. How did that happen?

Many of these student loans were taken out more than 10 years ago by dozens of private banks. These loans were then bundled together into securities and sold to investors. A lot of this debt was sold and resold several times before it wound up in the hands of National Collegiate's trusts.

Somewhere along the way, a lot of important paperwork got lost, and now National Collegiate often can't prove it owns the underlying debt it seeks to collect. As a result hundreds of its debt collection cases have been thrown out of court. Boo hoo!

This is essentially the same problem that arose during the home mortgage crisis of 2008. Home mortgages were packaged into asset-backed securities and then sold and resold to various investors. When the loans went into default, the owners of the repackaged mortgages often could not prove they were entitled to collect the debt.

I have a few comments on National Collegiate's troubles.

First, the federal government doles out $150 billion a year in student aid. No one should be going to private lenders for student-loan money. If the higher education industry had any integrity, it would discourage students from taking out private loans. But our rapacious colleges and universities don't care if their students are taking out private loans to pay tuition.

Second, the private student-loan market grew after Congress passed the so-called Bankruptcy Reform Act of 2005, which made private student loans nondischargeable in bankruptcy unless the borrower could prove undue hardship. The banks know that their student-loan customers will find it almost impossible to discharge their private loans in bankruptcy.

Third, the banks have further protected themselves against losses by requiring student borrowers to find co-signers for their student loans. Millions of parents and grandparents have cosigned private loans for their relatives and are liable to repay them if the student defaults. And bankruptcy isn't an option for grandma or grandpa because they too are subject to the undue hardship rule.

In short, the private student loan industry is a sleazy business and ought to be shut down. Congress could close this industry almost overnight if it repealed the undue hardship standard in the 2005 Bankruptcy Reform Act.  And colleges and universities could help shut the industry down if they would publicly discourage their students from taking out private loans.

Personally, I don't give a damn if National Collegiate and its investors lose a ton of money because they don't have the paperwork proving they own the student loans they purchased.  After all, National Collegiate is a sophisticated party. If it purchased debt without obtaining the necessary documents proving ownership, it deserves to have its collection cases thrown out of court.



References

Stacy Cowley and Jessica Silver-Greenberg. As Paperwork Goes Missing, Private Student Loan Debt May Be Wiped Away. New York Times, July 17, 2017.