How To Fight Student Loan Debt in Bankruptcy: Adversary Proceedings Explained
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If you want to get your federal student loan debt discharged as part of your bankruptcy case, you’ll need to file an adversary proceeding (AP). An AP is a legal process used in bankruptcy court to resolve specific issues or disputes that arise during a bankruptcy case. Due to changes in late 2022, APs for federal student loan discharge may look different than other APs. Under the 2022 guidance, discharge proceedings are meant to be simpler and more efficient for bankruptcy filers. If you’re filing an adversary proceeding to discharge federal student loans, you may be able to handle it yourself, without hiring an attorney. This article explains how APs work for bankruptcy filers seeking to discharge student loan debt through bankruptcy.
Written by Jonathan Petts.
Updated May 15, 2023
What Is an Adversary Proceeding?
An adversary proceeding is a legal process that takes place as part of a bankruptcy case. Adversary proceedings in bankruptcy cases achieve many different functions. This article focuses primarily on how adversary proceedings work for student loan bankruptcy discharges.
Secondarily, it touches on how else APs may be used in bankruptcy proceedings. For example, if a creditor wants to object to a specific debt being discharged in your bankruptcy case, they can file an adversary proceeding, which is a formal lawsuit. In this case, many filers choose to seek legal help by hiring an attorney or getting legal aid.
Adversary Proceedings for Student Loans: An Overview
People often question whether you can really file bankruptcy on student loans. The answer is yes! And if you want to use bankruptcy to erase your student debt, you must first file your bankruptcy case, then file an adversary proceeding. We’ll touch on the steps of this process more later. For now, let’s focus on why you have to file an AP.
The Bankruptcy Code is the set of laws that governs the bankruptcy process. Under bankruptcy law, most types of unsecured debt — like credit cards, personal loans, and medical debt — are dischargeable through personal bankruptcies like Chapter 7 and Chapter 13.
But student loans are treated differently. To get your student loans discharged, you have to prove to the Bankruptcy Court that repaying your student loans is causing undue hardship and that you’ve made a good faith effort to repay your loans prior to filing for bankruptcy.
That’s where the adversary proceeding comes in. Through this proceeding, you’ll file an attestation form, which asks questions about your income, expenses, and student loans. This allows the bankruptcy judge to review your financial situation to see whether you meet the undue hardship and good faith effort standards. More on this soon.
Do APs Work the Same for Federal Student Loans and Private Student Loans?
Unfortunately, no. The U.S. Department of Justice and U.S. Department of Education released new guidance in late 2022 to streamline the AP process for federal student loan borrowers. The guidance specifically applies to federal Direct Loans or federal Direct Consolidation Loans.
If you have other types of federal student loans (Perkins, FFEL, etc.) or you have private student loans, you can still try to get your loans discharged in bankruptcy by filing an adversary proceeding. But your AP will look more like the lawsuit mentioned in the next section on other types of APs, which means you may want to hire a bankruptcy attorney to help you get a successful discharge.
Adversary Proceedings for Reasons Other Than Student Loans: An Overview
Many Chapter 7 bankruptcies go smoothly and do not require an adversary proceeding. But here are some reasons adversary proceedings are filed in bankruptcy cases:
A creditor or lender objects to a specific debt being discharged
There’s a general objection to granting the filer a discharge
The trustee wants to recapture property from a third party
A secured creditor needs to prove they have a valid lien on the filer’s property
This list isn’t exhaustive. If you’ve received notice that an adversary proceeding has been opened by the Bankruptcy Court, you may be in difficult legal territory.
The AP will operate like a lawsuit, so you should consider speaking to a lawyer or reaching out to a local legal aid organization to get more information about what to expect. Some courts even have a panel of attorneys that will help filers pro bono (for free) in certain adversary proceedings.
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What Happens During an Adversary Proceeding for Student Loans?
This section covers what happens during an AP for federal Direct and Direct Consolidation loans. If you have other types of federal loans or private loans, your AP will run more like what’s described in the section “What Happens During Adversary Proceedings That Aren’t for Federal Student Loans?”
Step 1: File an Adversary Complaint With the Bankruptcy Court
An adversary proceeding starts with an adversary complaint. A complaint is a legal document that lays out your case and names the parties involved in the proceeding. You’ll also need to submit a list of all your student loans. There’s an easy way to get this information: download it from the National Student Loan Data System (NSLDS). Here’s How To Get Your Federal Student Loan Info From the NSLDS.
If this sounds intimidating, don’t worry! Help is available. If you’re eligible to file your case with Upsolve, our nonprofit can help you with your complaint. And remember, in order to initiate an adversary proceeding, you must have already filed your bankruptcy case. If you need help doing that, read this popular article first: How To File Bankruptcy for Free.
Step 2: Serve the Complaint
The next step is to “serve” the complaint to the defendants you named — your federal student loan lender(s) — and other interested parties.
In most cases, student loan bankruptcy filers will send a complaint to:
The U.S. attorney overseeing your bankruptcy filing district
The attorney general of the U.S. Department of Justice
The student loan servicer (i.e., the Department of Education)
The U.S. trustee of your bankruptcy’s filing district
In federal student loan cases, you must also serve the Assistant United States Attorney (AUSA) with a summons and complaint.
What does it mean to serve a complaint? It just means you mail or hand-deliver a copy to the defendant. For most student loan cases, you’ll be mailing your complaint to the student loan servicer. The court requires you to serve the complaint to the defendant to make sure they are aware of the adversary proceeding.
Step 3: Fill Out an Attestation Form
As mentioned above, you must meet the undue hardship standard to be eligible for student loan discharge in bankruptcy. The AUSA and bankruptcy judge will determine whether you qualify for debt relief through bankruptcy. To make this determination, they will review the information you provide on the 15-page attestation form.
It’ll be easier to fill out the attestation form if you have a copy of your bankruptcy forms handy. The goal of the attestation is to get a sense of your financial circumstances and see if you meet the three main eligibility criteria for discharge:
You’re currently unable to make your student loan payments (based on your current income and living expenses) while maintaining a minimal standard of living for you and your dependents.
You expect that this inability to repay your student loan debt will continue in the future (for the duration of the loan’s repayment period or longer) due to disability, chronic unemployment, or other serious adversity.
You’ve shown a good faith attempt to make monthly payments on your education loans. This could include enrolling in an income-driven repayment plan, applying for deferment or forbearance, applying for student loan forgiveness programs, applying for loan consolidation, or more.
To learn more about the attestation form, read “Step 3: Complete the Attestation Form” from our article: Yes, You Can File Bankruptcy on Student Loans. Here’s How.
Step 4: The AUSA Reviews Your Form and Makes a Recommendation to the Bankruptcy Court
The Assistant United States Attorney (AUSA) will review your attestation form, any evidence you include, and your NSLDS report. Then the AUSA makes a recommendation to the bankruptcy judge. This is just a recommendation; it is not binding.
The bankruptcy judge handling the case will ultimately decide if you qualify for an undue hardship discharge. The judge may or may not request that you show up for a hearing so they can ask you some questions. If there is a hearing, it’s likely to be held virtually. It’s important to attend so you can answer the judge’s questions.
Step 5: The Bankruptcy Judge Issues a Decision
As mentioned, the bankruptcy judge overseeing your case has the final say in whether or not to discharge your federal student loan debt as part of your bankruptcy case. The judge may decide to allow a complete discharge of your qualifying student loan debt. They could also issue a partial discharge. Finally, the judge could deny the discharge.
What Happens During Adversary Proceedings That Aren’t for Federal Student Loans?
An adversary proceeding generally runs like a mini-trial. The person who files the proceeding is asking the court to decide something. They make their case first. Then, the other party has a chance to respond and make their own arguments. In some cases, the parties may present evidence, usually in the form of documents or witnesses.
Because there are so many different types of adversary proceedings, it is impossible to provide a full description of what to expect. However, if you hire an attorney to represent you in the adversary proceeding, the lawyer will be able to explain in more detail how that particular type of case will move forward.
Overview of the General AP Process
Each adversary proceeding may look a little different, but here’s a general overview of how they work when they aren’t used to discharge federal student loans.
Step 1: Complaint
Go to court to open an adversary proceeding and file a complaint.
Step 2: Summons
The clerk issues a summons either on the day that you file your complaint or within a few days. Once issued, you have 30 days to serve the summons and complaint.
Step 3: Response
The summons is served and the defendant has 30–35 days to respond by filing either an answer or a motion to dismiss.
If they don’t do either and there’s no response, you can file a motion for default asking the court to approve your request and grant a judgment against the defendant by default.
If the defendant responds with a motion to dismiss, you’ll be given a chance to file a response to the motion and make your case to the judge at a hearing on the motion. If the court rules in your favor, the defendant will file an answer.
If they respond by filing an answer, the case moves forward to the discovery period.
During this time you exchange information with the defendant as you both prepare for trial. This also provides more time to reach a settlement with the other side.
Step 5:Pretrial Proceedings
If no settlement is reached, the matter will eventually be set for trial.
Step 6: Trial
The court considers evidence and witness testimony, then makes a decision. If the court is deciding on a student loan discharge, it may decide to do any of the following:
Fully discharge the student loan
Partially discharge the student loan, leaving you responsible for the remainder
Not discharge any portion of the student loan
Step 7 (if applicable):Appeal
The losing party may appeal to the District Court or the Bankruptcy Appellate Panel (if any).