Steve Rhode points out that wholesale forgiveness of student loans is impossible. Bankruptcy Relief for distressed college debtors is the best option

 Millions of words have been written about the student loan crisis. Heck, I've probably written a couple of million words about it myself. 

For my money, Steve Rhode's succinct and cogent essay, published yesterday, is the best analysis of this catastrophe. Mr. Rhode explains why massive student-loan forgiveness is a bad idea. Instead, he argues that bankruptcy relief is the better option. He also points out the fatal flaws in the federal student-loan program, which have brought us to the brink of calamity.

I urge you to read Steve Rhode's essay in its entirety.  My commentary will highlight a few key points.

First of all, Rhode points out that taking out student loans to pay for a college education was a mistake for millions of Americans. He cites a New York Life survey, which found that the average student-loan borrower took 18.5 years to pay off student loans, starting at age 26 and ending at 45.

That is a significant portion of life to have to be tied to a student loan payment that should have been directed to saving for retirement and then mushroomed into a giant nest egg. It can take decades to recover from that financial mistake. But that’s not the only financial regret people have.

Shockingly, millions of Americans took out student loans and never finished their degrees. For those people, student loans are a dead loss.  Instead of enhancing their economic future, dropouts shot themselves in the foot by taking out student loans.

Rhode also points out (as have many others) that the for-profit college industry has wreaked havoc among a population of Americans who took out student loans to attend for-profit schools. He cites a study by the Federal Reserve Bank of New York, which found that “[s]tudents who attend for-profit institutions take on more educational debt and are more likely to default on their student loans than those attending similarly selective public schools.”

The Federal Reserve Bank study then went on to say: "Overall, our results indicate that, on average, for-profit enrollment leads to worse student loan outcomes for students than enrolling in a public college or university, which is driven by higher loan takeup and worse labor market outcomes."

The federal student loan program is a mess. It is probably the worst public policy decision Congress ever made when it launched a program more than a half-century ago that now has more than 40 million people ensnared by a total of $1.7 trillion in outstanding student-loan debt.

But massive student-loan forgiveness is not a viable option. 

First of all, wiping out all that debt is fundamentally unfair. And here I will quote Steve Rhode's analysis:

As Howard Dvorkin, Chairman of  Debt.com said, “Only one-third of the people in this country get a four-year college education. The two-thirds without a college education is expected to subsidize their education when it is very likely that they earn less than the people who are receiving the educational subsidy.” 

As Mr. Dvorkin pointed out, “The issue of forgiving debt is complicated. What about all the people that have already struggled to pay their debts, and now other people get loans forgiven. That’s not fair.”

In any event, as Mr. Rhode explained, millions of people are already in a loan forgiveness plan. About 9 million people are in income-based repayment plans that allow them to make minimal loan payments that don't even cover accruing interest on their underlying debt.

So what is the solution to the train wreck we call the federal student-loan program? This is what Steve Rhode recommends:

I hate to state the obvious here, but rather than worry about the inequities of forgiveness and who wins and loses, the most rational and logical option is to roll back the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA).

It was this pernicious law that made even private student loans virtually nondischargeable in bankruptcy.  Many of the congresspeople who voted for this bill still hold elected office. They should be ashamed of themselves. 

Just as importantly, Mr. Rhode argues, Congress needs to remove the "undue hardship" language from the Bankruptcy Code and allow distressed debtors to discharge their college loans in bankruptcy like any other consumer debt.

Steve Rhode succinctly points out the merits of reasonable bankruptcy relief:

Returning to allowing both federal and private student loans to be discharged in bankruptcy has many features:

1.      It is a current and accepted legal process with clear rules and guidelines. 

2.      The debt is forgiven tax-free. 

3.      It allows people a chance to get a fresh start from an impossible situation. Oftentimes these issues are the result of accidents, injuries, medical issues, pandemics, etc. 

4.      A bankruptcy Trustee and Judge must review and approve the discharge plan. If a consumer has too much income for a full immediate discharge, they will be required to enter a five-year repayment plan in a Chapter 13 bankruptcy. 

5.      Forgiveness will be restricted to only those that qualify. 

6.      The fact the loans may now be dischargeable should force lenders to make better loan decisions before just handing the money to anybody. 

7.      If loans are less abundant or actually just based on repayment ability, then schools would have to ratchet back tuition fees. Less easy money would be available. 

8.      This process would be restricted to those who need and meet the accepted legal standards for bankruptcy. 

9.      People that can afford to repay their loans will have to do so through their Chapter 13 repayment plan.

10.  We can eliminate this ridiculous game and administration of student loans that will never be repaid and have to be dealt with.

As I said at the beginning of this commentary, I urge people to read Steve Rhode's article in its entirety. I agree with him completely.

Let's see what Congress does in the coming months. The way out of the nightmare is to amend the Bankruptcy Code.  Various student-loan forgiveness scenarios will not fix this enormous problem. 

If loan forgiveness is the best idea Congress has to offer, then our nation's political leaders will have opted for the status quo. And the status quo will ultimately destroy our nation's colleges and universities along with the lives of millions of student-loan debtors. 

Williams v. U.S. Department of Education: How does someone run up $400,000 in student-loan debt?

 In Greene v. U.S. Department of Education, Judge Richard Posner, a universally esteemed jurist, remarked that the criteria for determining "undue hardship" in student-loan bankruptcy cases are complex. Nevertheless, Judge Posner observed, "[t]he size of the debt is relevant--the larger it is, the more likely that imposing full liability on the debtor will produce an undue hardship . . ."

That makes perfect sense. Nevertheless, federal courts have refused to allow student-loan debtors to discharge their loans in bankruptcy even when the size of their college-loan debt is enormous and virtually impossible to pay off.

Williams v. U.S. Department of Education is a case in point. As the Seventh Circuit Court of Appeals explained, Williams began his college studies in 1982. "[O]ver the next three decades,[he] obtained a bachelor's degree in mathematics, a master's in communication, and a master's in business education." He financed these educational endeavors with student loans. By the time he filed for bankruptcy, he had run up $400,000 in student debt.

As the Seventh Circuit noted in its 2019 opinion, Williams had worked only part-time as a seasonal worker at a flower shop over the six previous years. His annual income was just $10,000.

After filing for bankruptcy, Williams entered into a 25-year, income-based repayment plan. Since his income was so low, he was required to pay nothing under that plan.

Williams tried to discharge this massive debt in an Illinois bankruptcy court, but he got nowhere. The bankruptcy judge refused to forgive his student loans, and the Seventh Circuit, in an opinion joined in by Judge Amy Barrett, affirmed the bankruptcy judge's decision.

Perhaps Mr. Williams was not the most attractive candidate for bankruptcy relief. As the Seventh Circuit pointed out: "If Williams continues what he has done for the last 6 years, which he concedes he can do, he need not pay anything on his debts for the next 25 years, at which point at least half the debt will be forgiven. That suggests no hardship."

Moreover, the Seventh Circuit continued, Williams had not provided any admissible evidence of a good-faith effort to repay his student loans.

Those efforts [ the appellate court observed] were virtually non-existent.  Despite his three degrees and his admitted ability to work full-time, he has worked only part-time in a floral shop for the last six years.  No admissible evidence explains the lack of higher-income work or why he has not, with about $3000 of annual net income, paid more than $140 toward lowering his debts.

I am not arguing that Williams should have gotten bankruptcy relief from his student loans. My point is simply this:  It is crazy for the federal government to issue student loans to an individual for three decades of college studies and then force that person into a 25-year repayment plan that allows him to pay nothing.

Surely we can all agree that this nutty system is unsustainable.

References

Greene v. U.S. Department of Education,  770 F.3d 667, 670 (7th Cir. 2015).

Williams v. U.S. Department of Education, 752 Fed.Appx. 363 (7th Cir. 2019).

The federal student loan program is nutty.

Trejo v. U.S. Department of Education: A Texas bankruptcy judge grants student-loan discharge to 47-year-old single mom

The Sad Case of Jessica Trejo

In 2017, Jessica Trejo filed an adversary action in a Texas bankruptcy court, seeking to discharge $90,000 in student-loan debt. Ms. Trejo had borrowed about $65,000 to attend three Texas colleges. She also took out a Parent Plus loan for $13,522 to help pay for her eldest daughter's college education. And she owed a little over $7,000 in accrued interest.

At the time of trial, Ms. Trejo was a 47-year-old single mother with two dependent daughters. Both daughters were "afflicted with serious Type II diabetes, high blood pressure, psoriasis, eating disorders, severe depression, suicidal tendencies, and Attention-Deficit Hyperactivity Disorder" (p. 2). Ms. Trejo testified that she had to continually monitor her daughters' activities due to their depression and suicidal tendencies.

From 2008 until 2013, Ms. Trejo took college courses on a part-time basis at Tarrant County College, Hill College, and Texas Wesleyan University. Her ultimate goal was to get a degree in bilingual education. However, "because of her family and financial situation, she no longer intend[ed] to return to college or obtain a degree" (p. 3).

At the time she filed for bankruptcy, Ms. Trejo's financial situation was precarious. As Judge Mark Mullin observed, Ms. Trejo had not had a full-time job in the last 15 years. She had worked part-time at a nail salon, but she gave up that work to care for her daughters. Due to her daughters' disabilities, she received Supplemental Security Income (SSI) checks from the Social Security Administration, totaling $1470 a month.

The U.S. Department of Education opposed Ms. Trejo's request for student-loan relief, arguing that she should sign up for a 25-year income-based repayment plan. According to DOE, Ms. Trejo's income was so low that she would not be obliged to pay anything under such a program (p. 4).

Judge Mullin applies the Brunner test and discharges Ms. Trejo's student-loan debt.

Judge Mullin applied the three-part Brunner test to determine whether it would work an undue hardship on Ms. Trejo if she were forced to repay her student loans. In Judge Mullin's view, Ms. Trejo met all three parts of that test.

First, the judge ruled that Ms. Trejo could not maintain a minimal standard of living for herself and her two dependent daughters if forced to pay her student loans.

Second, Ms. Trejo had shown that her financial situation was not likely to improve in the foreseeable future.

Third, Judge Mullin ruled that Ms. Trejo had handled her student debt in good faith. Although she had not made any payments on her student loans, she never had the financial wherewithal to do so.

Implications of the Trejo decision

Judge Mullin made the right decision when he discharged Ms. Trejo's student-loan debt. Clearly, she could not maintain a minimal standard of living for herself and her family and pay back her student loans. And, as Judge Mullins recognized, it was highly unlikely that Ms. Trejo's financial situation would improve significantly in the years to come.

The Trejo decision is a significant decision for at least three reasons. First, Judge Mullin flatly rejected DOE's tired argument that distressed student-loan debtors should be forced into long-term income-based repayment plans instead of getting their loans discharged in bankruptcy.  Over the years, DOE has snookered some bankruptcy judges with that silly argument, but those days may be over. It is absurd to deny an honest debtor bankruptcy relief in favor of a 25-year plan that requires the debtor to pay nothing.

Second, Judge Mark Mullin is one of a growing number of bankruptcy judges who are interpreting the Brunner test compassionately and with a dose of common sense. Judge Mullin took great care to write a judicial opinion that will be difficult to overturn on appeal. His decision contained 124 footnotes showing that his ruling was based on evidence in the trial record.

Finally, the Trejo decision prompts us to think about the enormous cost of higher education today, particularly when we consider how often the college experience does not lead to a good job.  Ms. Trejo borrowed about $65,000 to pay tuition at three colleges and got minimal benefit from the experience. Nevertheless, all three institutions that took Ms. Trejo's tuition money get to keep it.

We need to find a better way to provide low-income people like Jessica Trejo with the postsecondary education and training they need to become self-sufficient citizens. Clearly, the federal student loan program, as it is now operating, is not doing a good job.

References

Trejo v. U.S. Department of Education, Adversary No. 17-4052, 2020 WL 1884444 (N.D. Tex. Apr. 15, 2020).

Massive student-loan forgiveness is now a mainstream idea: Even Al Jazeera is on board

Around 45 million Americans owe a total of $1.6 trillion in student loans, and approximately 20 million of those debtors are not paying them back.  Betsy DeVos, President Trump's Education Secretary, admitted more than a year ago that only one out of four student borrowers was paying down principal and interest on their federal loans. "In the commercial world," DeVos observed, "no bank regulator would allow this portfolio to be valued at full, face value."  

So why not just forgive all this festering debt--debt that is preventing struggling Americans from buying homes, having children, or saving for their retirement?

That notion is now a mainstream idea in American politics. Senator Bernie Sanders got the ball rolling when he called for wiping out all this debt.  Senator Elizabeth Warren proposed something slightly less radical--forgiving student debt up to $50,000.  And Joe Biden, the Democrats' presumptive nominee for the Presidency, wants to forgive all debt owed by individuals who attended a public university or a historically black college (HBCU).

Even Al Jazeera, an Arabic-focused news organization, based in Qatar, wants to forgive all federal student loan debt.  America is experiencing its worst economic crisis since the 1930s, Al Jazeera reporters pointed out, and the U.S. needs to prioritize relief  for "people, not profit." Al Jazeera calls for canceling all student loan debt, which would "help those hit hard by the coronavirus pandemic to "rebuild their futures."

Writing off all federal student debt is not a crazy idea, especially, as I just said, a bunch of it isn't being paid back anyway. But does Congress have the political will to do it? I don't think so.

After all, the straightforward solution to this crisis would be to simply allow overwhelmed debtors to discharge their student loans in bankruptcy. Bills have been introduced in Congress that would accomplish just that, but those bills have gotten nowhere. 

I've said this before, and I will repeat it. Congress should allow insolvent Americans to file for bankruptcy and discharge their student loans like any other consumer debt: credit cards, car loans, and business obligations. 

And all Congress needs to do to accomplish this sweeping reform is to remove two words from the U.S. Bankruptcy Code: "undue hardship." It is the "undue hardship" language, after all, that the federal courts have interpreted so harshly, and which has denied bankruptcy relief to millions of honest student-loan debtors.

Of course, if Congress abolished the "undue hardship" standard, it would need to appoint a lot more bankruptcy judges to deal with a torrent of bankruptcy filings. And the judges would need to make sure that people who have the financial wherewithal to repay their loans don't fraudulently apply for bankruptcy relief.

In my view, calls to wipe out all student debt are irresponsible because politicians know this is never going to happen. Bankruptcy reform provides an orderly and fair way to give unfortunate student debtors a fresh start while guarding against fraud. 

Laurina Bukovics v. ECMC: An Illinois woman took out $20,000 in student loans, paid back $29,000 and still owed $80,000

Laurina Kim Bukovics enrolled as a freshman at the University of Wisconsin in 1985 and graduated five years later. She took out about $20,000 in student loans to finance her studies. Over the years, she paid back $29,000--almost 140 percent of the principle. 

Nevertheless, 25 years after she graduated, Bukovics owed $80,000 on her student loans--four times what she borrowed.  Even though she had made 99 loan payments between 1999 and 2015—equivalent to more than eight years of twelve monthly payments-- her college-loan debt had quadrupled due to accumulating interest.

In 2015, Bukovics sought bankruptcy relief. Two years later, she filed an adversary proceeding to discharge her student loans. In 2018, while her adversary proceeding was pending, Bukovics lost her job.

Educational Credit Management Corporation, the federal government's ever-diligent debt collector, opposed a discharge of Bukovics's student-loan debt. ECMC argued that Bukovics could not meet the "undue hardship" test because she had not tried to maximize her income and not lived frugally.

In particular, ECMC accused Bukovics of spending too much money on food and not being diligent enough in looking for work.  Her job search was too narrow, ECMC claimed. 

In deciding Ms. Bukovics's case, Bankruptcy Judge Jack Schmetterer applied the three-part Brunner test to determine whether Bukovics could repay her student loans while still maintaining a minimal standard of living.  After conducting an extensive analysis of Bukovics's financial history, Judge Schmetterer ruled in her favor.

Clearly, Judge Schmetterer concluded, Bukovics could not maintain a minimal standard of living if she were forced to repay her student loans. After all, Bukovics was unemployed, temporarily living rent-free with a friend, receiving government nutritional assistance (food stamps), and getting her health care through Medicaid.

"Put simply, Judge Schmetterer wrote, given Bukovics's "frugal lifestyle and overall significant budget shortfalls, including the lack of money to provide for even basic needs, she would be unable to maintain a minimal standard of living if required to repay her student loan" (Bukovics v. ECMC, p. 189).

Judge Schmetterer rejected ECMC's arguments that Bukovics had spent too much money on food. On the contrary, he commented, spending $360 for sustenance over two to three months was not excessive.

In any event, Judge Schmetterer observed, ECMC's position "misses the point" (p.188). In the judge's opinion, ECMC was inappropriately looking for pennies that Bukovics might save when it was evident that her income was inadequate to meet her basic human needs.

Judge Schmetterer also rejected ECMC's claim that Bukovics had not looked hard enough for a job.  The judge pointed out that she had applied for over 200 positions over sixteen months and that several applications had led to job interviews (p. 187). Although the judge acknowledged that Bukovics voluntarily gave up her last job, she had testified that she had been pressured to quit and that her position had been eliminated after she terminated her employment.

Implications of the Bukovics decision

The Bukovics opinion is remarkable not so much because Laurina Bukovics won her case but for the fact that ECMC, the Department of Education's designated representative, would oppose her.

Ms. Bukovics borrowed $20,000 to obtain a bachelor's degree from a well-respected public university. She repaid $29,000 by making almost 100 monthly payments. Although financial circumstances forced her to skip monthly payments from time to time, the Department of Education acknowledged her hardship by granting her 10 deferments or forbearances.

Thirty years after graduating, Bukovics had reduced her debt by one dime. In fact, she owed four times what she borrowed. She was in her early fifties and out of a job.

What reasonable person would argue that Laurina Bukovics should not be freed of debt she can never repay?  And yet ECMC, representing the United States government, made that argument.

Today, the American economy is crippled by the coronavirus pandemic, and the nation's unemployment rate is 15 percent. Millions of people are living in circumstances similar to those of Ms. Bukovics.  Surely we need a more compassionate and efficient way of freeing destitute Americans from unmanageable debt than applying the outdated and callous Brunner test that examines how much an unemployed person spends on food.

References

Bukovics v. Educational Credit Management Corporation, 612 B.R. 174 (Bankr. N.D. 2020).

Judge Jack Schmetterer: ECMC missed the point

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.

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.

Clavell v. U.S. Department of Education: A New York bankruptcy judge takes refreshing approach to "undue hardship" in student-loan bankruptcy case

Clavell v. U.S. Department of Education: An Introduction

Christian Clavell, a 35-year-old sales employee with Coca-Cola, filed for bankruptcy in the hope of discharging $96,000 in student loans.  The U.S. Department of Education opposed his application for relief, arguing that Clavell could afford to make loan payments of $492 a month under REPAYE, one of DOE's long-term, income-based repayment plans.

At first blush, DOE's position seems reasonable. Clavell was projected to have an income of $77,000 a year, he was single, and he lived inexpensively in his grandfather's home. Fortunately for Clavell, however, Judge Michael E. Wiles, dug deeper into Clavell's financial situation and concluded that he was entitled to a partial discharge of his student loans that only requires him to make loan payments of $250 a month over a 25-year term.

In reaching his decision, Judge Wiles endorsed the views expressed by Bankruptcy Judge Cecelia G. Morris in Roseberg v. New York State Higher Education Services Corporation.  Like Judge Morris, Judge Wiles rejected the "certainty of hopeless" standard that some bankruptcy judges have adopted to justify their decisions to deny relief to distressed student-loan borrowers.

And, like Judge Morris, Judge Wiles called for a less harsh interpretation of the Second Circuit's Brunner opinion. Brunner has been used by bankruptcy judges all over the country to make it virtually impossible for honest but unfortunate student-loan debtors to obtain the "fresh start" that the bankruptcy courts were established to provide. Together, Rosenberg and Clavell signal the possibility that bankruptcy judges would like to see the Brunner test softened by the federal appellate courts.

Judge Wiles applies the three-part Brunner test to Mr. Clavell's financial situation.

In analyzing Clavell's claim, Judge Wiles applied the three-part Brunner test, first articulated by the Second Circuit Court of Appeals.  Part one of that test required Clavell to show that he could not pay off his student loans and still maintain a minimal standard of living.

Judge Wiles pointed out that Clavell made child-support payments of $946 a month and that DOE did not take this obligation into consideration when it calculated how much Clavell would have to pay under the REPAYE plan. In Judge Wiles' view, DOE's calculations were "too mechanical" and did not take into account Clavell's actual financial circumstances" (p. 10).

Furthermore, the judge noted, REPAYE is actually a misnomer. "[T]he mere fact that the REPAYE payments are low, or in some cases even zero, does not really mean that a debtor can afford to 'repay' the underlining loans" (p. 11). On the contrary, the fact that some people are eligible to make lower payments on their student debts under REPAYE may actually show that these people cannot afford to repay their underlying loans.

Looking at Clavell's expenses, Judge Wiles subtracted Clavell's child-support payments to determine his take-home pay--only $3,242 a month. The judge concluded that Clavel's modest contributions to his retirement plan ($121 a month) were reasonable expenses and not a "luxury" item as DOE maintained.

I disagree with the DOE's contention that modest 401(k) contributions of the kind at issue here are "luxury" items. One of the financial obligations of a responsible adult is to make reasonable provisions for the future, both for the adult's own good and for the good of his or her family.  (p. 20)

Indeed, Judge Wiles reasoned, "[r]equiring a debtor to forego making reasonable provisions for his and his family's future living expenses would itself be an 'undue hardship,' even if it would not immediately deprive the debtor of food or shelter" (p. 20).

At the time of trial, Clavell lived with his grandfather, paying him $956 per month in rent. DOE argued that Clavell's "real" rent obligations were less than $956, apparently because Clavell paid rent to a relative. But Judge Wiles rejected DOE's argument, finding that Clavell's rent obligations were reasonable.

Remarkably, Judge Wiles also determined that Clavell's own estimation of his food and housekeeping costs were higher than Clavell himself claimed.  Reasonable costs for these items was not $265 a month, as DOE contended, or even $400 a month, as Clavell asserted. Instead, Clavell's reasonable housekeeping costs were $590.

In sum, taking all of Clavell's reasonable expenses into account, the judge concluded that Clavell could not maintain a minimal standard of living if forced to repay his student loans.

Turning to part two of the Brunner test, Judge Wiles ruled that Clavell had met his burden of showing that his financial circumstances were not likely to change over "a substantial portion of the loan repayment period" (p. 36). Although Clavell might make more money if he obtained a job in his chosen field of law enforcement, Clavell had not been able to get such a job, and the judge found no evidence to suggest that Clavell had not made a good-faith effort to maximize his income.

Finally, Judge Wiles concluded that Clavell had handled his student-loan obligations in good faith, and thus, he met part three of the Brunner test.  The judge acknowledged that Clavell had made no payments on his student loans since he consolidated them in 2013. Nevertheless, Judge Wiles reasoned, "a debtor's 'good faith' must be determined based on the situation in which the debtor found himself."

In Clavell's case, Judge Wiles observed:

[T]he loan servicers themselves recognized that Mr. Clavell's circumstances did not permit him to make payments and thus they suspended Mr.Clavell's payment obligations and put the loans in forbearance as a result. In fact, Mr. Clavell never defaulted on his student loans. Instead, his payment obligations have been suspended. Mr. Clavell's failure to make payments was hardly a sign of "bad faith" when the lender acknowledged that Mr. Clavelll could not make such payments and when the lender agreed to suspend his obligation to make them. (p. 37)

Good faith, Judge Wiles ruled, should be measured by a debtor's efforts to obtain employment, maximize his income, minimize expenses, and undertake all other reasonable efforts to repay his student' loans.

The evidence shows that Mr. Clavell did his best to maximize his employment opportunities and his income and to minimize his expenses. He attempted to find a position in law enforcement but was unable to do so despite diligent efforts. He has worked in a sales position and . . . there is no suggestion that he passed up any better opportunities that were available. He has a large child support obligation that he must honor and other reasonable expenses that do not permit him both to maintain a minimal standard of lving and to repay his loans. (p. 37).

Accordingly, Judge Wiles reduced the amount of Clavell's loan balance such that Clavell would pay off the remaining debt in an amount that could be paid in 25 years with monthly payments set at $250 per month.

 Conclusion

Clavell v. U.S. Department of Education is important for several reasons:

First, Judge Wiles endorsed the view of Judge Cecelia G. Morris in the Rosenberg decision that the Brunner test has been interpreted too harshly by many bankruptcy judges. Judge Wiles flatly rejected the "certainty of hopelessness test" that some bankruptcy courts have adopted to justify their decisions to deny overburdened debtors relief from their student-loan debts.

Second, Judge Wiles ruled that a student debtor's child-support payments should be taken into account when determining whether the debtor can maintain a minimal standard of living and still pay off student loans. Judge Wiles also ruled that a student-loan debtor is entitled to make modest contributions to his or her retirement plan and that such payments are not a luxury.

Finally, and perhaps most importantly, Judge Wiles ruled in Clavell's favor regarding the fact that Clavell had not made monthly loan payments while his loans were in forbearance.  The judge concluded that DOE's decision to grant Clavell a forbearance from making payments constituted evidence that DOE itself acknowledged that Clavell was unable to repay his student loans while maintaining a minimal standard of living.

References

Clavell v. U.S. Department of Education, No. 15-12343, Adv. Pro. No. 16-01181 (Bankr. S.D.N.Y. Feb. 7, 2020).

Rosenberg v. New York State Higher Education Services Corporation, 18-35379, 2020 LEXIS 73 (Bankr. S.D.N.Y. Jan. 7, 2020).

Bankruptcy Judge Michael E. Wiles

Davis v. U.S. Department of Education: Another law graduate is denied student-loan bankruptcy relief

Few overburdened student-loan debtors attempt to get their loans discharged in bankruptcy. Most believe their student loans are not dischargeable as a matter of law. But among the small number of people who file for bankruptcy and try to get their student loans forgiven, a fair number are law-school graduates.

A handful of law-school graduates have been successful in bankruptcy court: the Barrett case out of California, the Hedlund case out of the state of Washington, and, more recently, the Rosenberg decision out of New York are examples of good outcomes for law graduates. But most are unsuccessful.

Davis v. U.S. Department of Education is the latest in a string of decisions in which a J.D. graduate with crushing debt is denied relief by a federal bankruptcy judge. Jeffrey Michael Davis graduated from John Marshall Law School in 2008, Apparently, Davis "performed poorly in law school" (p. 706), but he obtained an LL.M. degree (an advanced law degree) from John Marshall in 2013. At the time his adversary case was decided, he was 41 years old.

After graduating from law school, Davis sought full-time employment but he was not able to find a steady job as a lawyer. After graduation, he worked as a document review attorney on a contract-to-contract basis.  In other words, in the 11 years since graduating from John Marshall Law School, he never secured a full-time job in the legal field.  His salary in 2018 was approximately $61,000, above the poverty level. Nevertheless, Davis was the father of a young child with disabilities, and his childcare expenses were significant.

Davis financed his law studies with student loans from both the federal government and a private lender. By the time he arrived in bankruptcy court, his total indebtedness was $351,000. According to Illinois Bankruptcy Judge Timothy Barnes, Davis made some payments on his DOE loans but had made no payments on his federal Stafford loans or his private loans.

Judge Barnes analyzed Davis's petition for relief under the three-part Brunner test and concluded that Davis did not meet even one of the three parts.

In Judge Barnes' opinion, Davis could not meet part one of the Brunner test because he could not show that he would be unable to maintain a minimal standard of living if forced to pay back his student loans.  In the judge's view, Davis had not lived frugally enough, noting disapprovingly that Davis subscribed to some streaming services.

The judge also pointed out that Davis had not applied for higher-paying jobs over the past four or five years. "In the absence of efforts to secure a higher-paying position, whether as an attorney or otherwise, and given the lack of other evidence regarding efforts to increase his income, [Davis] has failed to demonstrate that he has maximized or attempted to maximize his income" (p. 705).

Regarding part two of the Brunner test, Judge Barnes ruled that Davis "failed to demonstrate the existence of additional circumstances indicating that [he] will likely be unable to repay the Students Loans for a significant portion of the repayment period " (p. 707). The judge pointed out that Davis has at least 20 more years of earning potential.  The judge indicated that Davis had shown no unusual circumstances that would hinder him from finding a higher paying job.

Finally, Judge Barnes concluded that Davis had not been able to demonstrate that he had made good faith efforts to repay his loans. The fact that Davis had not made any payments on some of his loans "weighs against a finding of good faith" (p. 708). Judge Barnes ruled. And--as the judge had already indicated, he did not think Davis had tried to maximize his income, minimize his expenses, or look for a higher paying job.

I disagree with Judge Barnes' decision.  First, Judge Barnes is a lawyer himself. Surely he knows that the job market for lawyers in the U.S.  has been terrible since Davis graduated from law school in 2008. The judge should also know that the job possibilities for people who graduate from undistinguished law schools like John Marshall and who do not have stellar grades face particularly grim job prospects.

Finally, Judge Barnes should know that an L.L.M. degree from a lackluster law school like John Marshall often does not make a lawyer more marketable. In fact, for many J.D. graduates, an advanced degree in law merely adds to a lawyer's debt load.

In my view, the only question Judge Barnes should have considered when evaluating Mr. Davis's case is this: Can Mr. Davis repay $351,000 in student loans?

The answer to that question is undoubtedly no. Judge Barnes concluded that Barnes had not looked hard enough for a better job, but who would not look for better wages if a higher paying job was at least a remote possibility.

I doubt very much whether Davis--who has a law degree and an advanced law degree--likes working on a contract-to-contract basis for $61,000 a year. But I feel sure he is doing the best he can.  Apparently, he has worked consistently in the field of law for 11 years. He should get some credit for that.

If the Department of Education thinks it achieved something by opposing Mr. Davis's request for student-loan relief, it is deluding itself.  I think it is highly likely that Davis will be forced into an income-based repayment plan that will end when he is 66 years old and that accruing interest on his debt will prevent him from ever paying off his loans--now more than a third of a million dollars.

A compassionate ruling, a sensible ruling, and the right ruling would be for Judge Barnes to forgive all of Davis's crushing debt and give him the fresh start. That is the bankruptcy courts' duty, after all, to give honest but unfortunate debtors a fresh start.

References

Davis v. U.S. Department of Education (in re Davis), 608 B.R. 693 (Bkrtcy N.D. Ill. 2019).

Trump Administration is "woke" to the student-loan crisis: What can it do in 2020?

Love 'em or hate 'em, student-loan debtors owe a debt of gratitude to Bernie Sanders and Elizabeth Warren for putting the student-loan crisis on the front burner of national politics. Liz proposes to forgive the first $50,000 of student debt if she is elected President. Bernie says--what the hell--let's forgive it all.  That's $1.6 trillion!

Meanwhile, as the Democrats offer to help college borrowers, Trump’s Department of Education (DOE), led by Education Secretary Betsy DeVos, is doing everything it can to alienate a very large constituency--45 million student-loan debtors.  

But last month, the Trumpers became "woke" to the student-loan catastrophe.  As reported by the Wall Street Journal's Josh Mitchell and Andrew Restuccia, the Trump administration is considering some relief options, including allowing borrowers to shed their student-loan debt in bankruptcy.

According to the WSJ, the Trump administration is mulling a policy adjustment whereby DOE "would essentially decline to contest borrowers’ requests before [bankruptcy] judges to have their student loans canceled.” The beauty of this proposal is Trump could make this adjustment without congressional approval.

Better than that, Trump could claim that he is only following the policy announced by the Obama administration in 2015 when DOE's Lynn Mahaffie said in a letter that DOE would not oppose bankruptcy relief for student borrowers if it did not make economic sense to do so.

Of course, DOE never followed that policy. Instead, it has allowed Educational Credit Management Corporation to oppose virtually every student debtor’s petition to shed student-loan debt in the bankruptcy courts.  And this has been DOE’s practice under both the Obama and the Trump administration.

All President Trump needs to do to grant significant relief to college debtors is tell ECMC to fire its battalions of lawyers and file formal non-opposition documents when worthy student debtors seek to discharge their student loans in bankruptcy.

Undoubtedly, a few unscrupulous people would try to use the bankruptcy courts to shed debt they have the means to repay and which they should repay. But filing a fraudulent bankruptcy claim is a federal crime, and the bankruptcy judges know how to sniff out deceitful claims.

If Trump were to follow through with this proposal, we will need a lot more bankruptcy judges because millions of people would be entitled to bankruptcy relief.  Where will we get the money?  Let’s take the cash that DOE is funneling to ECMC and its lawyers and use it to hire some judges. 

Pretty simple really.  

"What do you say, Betsy? Let's tell ECMC to piss up a rope."

Little v. U.S. Department of Education: Should middle-aged people take out student loans to attend college?

Walter Lee Little and Linda Leticia Little, a married couple, are 58 years old. About thirteen years ago, they both took out student loans to take courses at various community colleges; but they never obtained degrees. They filed for bankruptcy in 2017 and applied to have their student-loan debt forgiven.

Like many student-loan debtors, they dived into the world of bankruptcy law without an attorney. The U.S. Department of Education was represented by a lawyer from the U.S. Attorney's Office.

The Littles filed an adversary action to obtain student-loan debt relief, but their case never went to trial. In June 2019, the Department of Education (DOE) filed a motion for summary judgment against the Littles, and Bankruptcy Judge Robert L. Jones granted DOE's motion in October.

In ruling against the Littles, Judge Jones applied the three-part Brunner test to determine whether the Littles met the Bankruptcy Code's "undue hardship" standard.  Regarding part one, Judge Jones said there was a factual dispute regarding whether the Littles could maintain a minimal standard of living if they were forced to repay their student loans.

Regarding Brunner's other two tests, Judge Jones flatly ruled against the Littles. The Judge ruled that the Littles could not show that "additional circumstances" would persist for "a significant portion of the repayment period of the loans . . ." (p. 859, quoting Brunner). Remarkably, Judge Jones said the Littles must show "a certainty of hopelessness" about their financial future, a standard that some other courts have rejected. 

The Littles argued that they were in their late 50s and nearing retirement. And they also pointed out that Mr. Little suffered from a variety of medical conditions and was disabled.

Judge Jones was entirely unsympathetic. "Mr. Little says that he suffers from a variety of medical conditions," the Judge observed, but those conditions "do not prevent Mr. Little from collecting disability payments or pension payments" (p. 860).

Regarding Mrs. Little's age and health prospects, Judge Jones said that "Mrs. Little was older when she went back to school and knew she would have to make payments in her later years" (p. 862).

In sum, Judge Jones ruled,  "The Littles chose to go to school later in life; the repayment of debts will thus last into their later years. Age... does not prevent the Littles from collecting pension payments; instead, their monthly income should increase upon turning 65" (p. 861).

As to Brunner's good faith test, Judge Jones ruled against the Littles as well. The Judge emphasized that the Jones had not made a single payment on their student loans

My sympathies are entirely with the Littles.  Judge Jones' decision partly rested on the fact that the Littles will receive pensions when they turn 65 based on their employment with ATT.  But those pensions are quite small. Mr. Little will receive about $850 a month and Mrs. Little anticipates getting $700 a month.  Judge Jones also noted that Mr. Little is entitled to receive a $900 disability check.

But these three sources of income together only amount to a gross income of $2450 per month--barely enough to live on.  It is completely unreasonable to expect the Littles to make student-loan payments during their retirement years to pay for educational experiences that apparently did not benefit them financially.

Would the Littles have a better case had they made some student-loan payments? Perhaps. But the Littlesstruggled financially for a variety of reasons that were beyond their control. They submitted documentation that they had been on food stamps for a time and had significant medical expenses (p. 857).

Judge Jones fortified his decision with citations to many legal opinions, but his opinion failed to note how much the Littles had borrowed to attend college or the interest rate on their loans. Nor was it clear from Judge Jones' opinion how long the Littles' loans were in forbearance or deferment, periods when they had no legal obligation to make student-loan payments.

In my opinion, the Department of Education considers Mr. and Mrs. Little to be collateral damage from an out-of-control student loan program that shovels federal money to colleges and universities without regard to the quality of their programs.

Judge Jones' Little decision shows that it is risky for middle-aged people to take out student loans to attend college. Moreover, although Judge Jones may not realize it, his decision in Little v. U.S. Department of Education undermined the ability of Mr. and Mrs. Little to live securely and in dignity when they reach their retirement years.

References

Little v. U.S. Department of Education, 607 B.R. 853 (Bankr. N.D. Tex. 2019).

Crocker v. Navient Solutions: A small win for student-loan debtors

Crocker v. Navient Solutions, a recent Fifth Circuit decision, is a small win for student-loan debtors. Essentially, the Fifth Circuit ruled that a private student loan obtained to pay for a bar review  course is dischargeable in bankruptcy. (The opinion also includes an extensive analysis on a jurisdictional issue, which will not be discussed here.)

Brian Crocker took out a $15,000 loan from Sallie Mae to pay for his bar-examination prep course. Subsequently, Crocker filed for bankruptcy and his  Sallie Mae loan was discharged.

Navient Solutions, which assumed the legal right to collect on Crocker's debt, continued trying to collect on the $15,000 loan after Crocker's bankruptcy discharge, claiming the debt was not dischargeable in bankruptcy. In August 2016, Crocker filed an adversary proceeding against Navient in the same bankruptcy court where he had obtained his bankruptcy discharge. Crocker sought a declaratory judgment that his Sallie Mae loan had been discharged and a judgment against Navient, holding it in contempt for continuing its collection efforts after Crocker's bankruptcy discharge.

A Texas bankruptcy court ruled in Crocker's favor, and Navient appealed.  The Fifth Circuit identified three types of student debt that are not dischargeable in bankruptcy without a showing of undue hardship:

• Student loans made, insured, or guaranteed by a governmental unit (11 U.S.C. § 523(a) (8) (i)), including federal student loans.

• Private student loans to attend a qualified institution (11. U.S.C. § 523 (a) (8) (B)). 

• Debt arising from "an obligation to repay funds received as an educational benefit, scholarship, or stipend" (11 U.S.C. § 523 (a) (8) (ii)).

Sallie Mae's loan to Crocker was not a governmental loan, so § 523 (a) (8) (i) did not apply. Navient conceded that the loan was not made to a qualify institution, and thus § 523 (a) (8) (B) did not apply.

Instead, Navient argued that the loan was nondischargeable under § 523(a) (ii). Navient maintained that the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act made all private student loans nondischargeable, including Sallie Mae's $15,000 loan to Crocker to pay for his bar-exam prep course.

The Fifth Circuit disagreed. The court pointed out that the statutory provision Navient relied on did not mention loans at all. Instead that provision "applies only to educational payments that are not initially loans but whose terms will create a reimbursement obligation upon the failure of conditions  of the payments."

Therefore, the court ruled, "The loans at issue here, though obtained in order to pay expenses of education, do not qualify as 'an obligation to repay funds received as an educational benefit, scholarship, or stipend' because their repayment was unconditional. They therefor are dischargeable."

As Steve Sather, a Texas bankruptcy lawyer, observed in a recent blog essay, the Crocker decision is only a small victory for student-loan debtors. It is nevertheless a significant decision because it is a reminder that not all private student loans are covered by the Bankruptcy Code's "undue hardship" provision.  Private loans taken out by law school graduates to pay for bar-examination preparation courses can be discharged in bankruptcy.

References

Crocker v. Navient Solutions, __ F.3d __, 2019 WL 5304619 (5th Cir. Oct. 22. 2019).

Steve Sather. Fifth Circuit Grants Small Victories to Student Loan Debtors, A Texas Bankruptcy Lawyer's Blog, October 26 2019, http://stevesathersbankruptcynews.blogspot.com/2019/10/fifth-circuit-grants-small-victories-to.html.