In general, you cannot have your student loan debt discharged by means
of a chapter 7 or Chapter 13 bankruptcy. You would need to prove that
repaying your student loans would cause you undue hardship to have them
What precisely constitutes undue hardship varies from court to court. The
burden of proof lies with you for demonstrating you cannot feasibly repay
What is known as the Brunner Test is utilized by some court, which looks
at three factors. The first factor is establishing you are in poverty
and cannot maintain a minimal standard of living for yourself if forced
to pay your loans. Another issue is whether your current financial situation
is likely to persist over a significant part of the repayment plan. Lastly,
you need to show to the court that you have already made a good faith
effort to repay your student loans.
To try and discharge your student loans via bankruptcy, you need to begin
by filing a formal complaint with the bankruptcy court where you will
need to demonstrate that repayment would cause and undue hardship to you.
If you have been the victim of unfair practices by your lender such as
breach of contract or fraud. These defenses to repayment can be raised
in the creditor’s Proof of Claim and if you succeed will you owe
nothing on your debt.
If you are struggling to repay your student loans, you should seriously
consider speaking with an Oakland bankruptcy attorney to go over your
concerns and your eligibility for having your loans discharged.