Considering trying to discharge student loan

[2live]

Should I go for it?? My 341 for ch 7 no means is coming up 5-29-09 and considering my health, my attorney has asked me to consider filing an adversarial motion to determine dischargability of my $50,000.00 student loan. His cost is pretty reasonable , 700 base then 250/hour and he said average total 1600.00. He is a trustee as well and said he doesn't take on student loans unless its for medical reasons since rules are very strict and success rate low. He said to think about it but believes he can get them discharged for me (I have stage IV cancer). I see him next week to give him my decision.

Part of me says just keep deferring the loans and when I can't do that anymore the only thing they can do is garnish my SSDI which I know they can do, but I can't really afford to give up 15% of that. And if I die the loan goes away so my daughter doesnt' have to deal with it.

The other part of me says take the chance to get rid of it forever so if my health does improve then I can enjoy life not worrying about this one last huge bill hanging over my head.

I guess I answered my own question about should I go for it or not.

Has anyone tried to discharge a SL due to health problems and if so, how did it go??

[dingdong]

If your attorney thinks you have a good chance and is a TT as well and you can afford the 1600.00, you may consider it.

I am sorry to hear about your cancer and hope you continue to keep fighting for your life.

Sounds like you may have a good chance at the AP.

Have you been determined to be totally and permanently disabled?

Is there anyway your lawyer can run a "hypothetical" situation regarding your medical condition by the TT and ask him what he thinks about it?

IF the TT thinks at the beginning the judge will not rule in your favor, perhaps you will be better informed regarding the AP.

Also, has there been any other debtors that have successfully brought an AP for SL discharge in your district with similar circumstances?

I wish you the very best of luck in your health and BK.

What district are you in? I can see if I can find any cases where a SL has been discharged for medical reasons in your district, if that would help?

DD

[dingdong]

Here is a California case where the loans were discharged. It outlines and discusses the 3 pronged test used in re:Pena based on re: Brunner that are used in determining whether a SL is eligible for discharge under the BK code.

You might find it interesting and see whether your situation may past the 3 pronged test for determining undue hardship and dischargibility.

http://www.canb.uscourts.gov/node/951

[2live]

Thanks ding dong and I'm getting SSDI based on my oncologist deeming my condition would "last at least 12 months or end in death" which is what soc sec wanted to know. So I haven't asked the question if I was totally and permanently disabled but I know there's no cure for the stage cancer I'm in and currently I'm on oxygen due to lung complications from radiation and haven't been able to work since aug 08. Chemo is ongoing as well. I'm sure the attorneys for william d. ford will argue the possibility that I would reach a point where I could return to work and that is what I want as well.....just don't know IF or WHEN that would happen.

My attorney said he won a case of someone with leukemia undergoing treatment but their physician said full recovery was possible but unknown at that time. He said the student loan attorney asked the court to be able to "monitor" the individuals income for 3 years first before being discharged, but the court ruled in favor of a full discharge instead.

I'm in texas western district.

Regarding the brunner 3 prong test, I think I could pass it if it would allow my forebearances, deferments to show "good faith". I've not made an actual payment since I think '06.

I know I could apply for a conditional discharge thru WD Ford that would mean no payments and they would re-evaluate my situation and then after 3 years either discharge it or tell me to start paying. I just think I may come to a point where I could work at least part time but then I'd be paying them 480.00/month right off the bat. Then what if I have to stop working again....defer once more then restart. I'm just weighing all the scenarios to decide which way to go.

[dingdong]

Even in the chance that you don't get the loans discharged. If you go back to work and apply for the WF income contingent plan, your paymemts would most likely be very low.

My loan balance is HUGE! I mean, really big. I can PM you the balance if you want ( don't want to post it here out of fear of eternal chastisement for being so stupid ) My income one year was pitiful , less than 20,000 with 2 dependants, and my payments were 5.00 /month on the IC plan, so lets say you did go to work part time, and you applied for the IC plan, you might be able to get some very low payments if your income for the year was very low. In the case that your SL were not discharged, I mean.

I think you may have a decent shot at discharge, especially if your attorney feels that way as well.

Have you asked if he will take your AP case ProBono, given that you are ill?

Wouldn't hurt to ask. He can only say no at the worst and maybe his firm does some pro-bono work. You certainly seem like you would be a good candidate for consideration.

The IC plan goes off of your taxable income, so if that is low, your payments are also low. To go on the IC plan,you have to allow WF access to your tax return info and they get the info straight from the IRS.

You might even be able to point out to the judge that if you were on the IC plan, and the payments are super low, that you wouldn't make a dent in the principle and the interest would be added to your loan,so basically your debt would just keep growing and essentially not make much of a difference and thus just eternally keep you in debt and discharge is the only reasonable alternative,andeven more proof of hardship.

That would be great if you could come out of this completely debt free and then have your cancer go into remission ( permanently!)

I really wish the best for you and focus on getting well and keep fighting the good fight. I had breast cancer but nowhere near the level of stage IV,and I was very lucky and caught it very early. I know it is scary especially when you are a parent, but miracles happen every day, so never give up and try and stay positive and if you need any more help, don't hesitate to ask.



DD

[HHM]

Just keep in mind what is involved in a student loan discharge hearing. This isn't some simple proceeding where you go in and tell your side of the story.

You will actually need expert witnesses, usually 2; (1) to testify about your condition and how that means you are unable to work, and (2) to testify as to your earning potentional.

And as dingdong pointed out, the Income Contingent plans they have now, make it very difficult to get a discharge of student loan debt even in the worst of circumstances.

[2live]

Just keep in mind what is involved in a student loan discharge hearing. This isn't some simple proceeding where you go in and tell your side of the story.

You will actually need expert witnesses, usually 2; (1) to testify about your condition and how that means you are unable to work, and (2) to testify as to your earning potentional.

And as dingdong pointed out, the Income Contingent plans they have now, make it very difficult to get a discharge of student loan debt even in the worst of circumstances.

Oh I'm aware that the income contingent plan is their ace in the hole all right. I know my physician will attest to my condition since she's seen my situation go from bad to worse in the past several years. I read a case where someone who had suffered a severed spinal cord and was now paralyzed from the waist down tried to get his SL discharged. He lost due to the argument that he could still do his desk job. So then he's being told he HAS to work? There was also an article about a man that had been writing back and forth to the SL explaining his ill health and trying to get a discharge and getting denied. Shortly after his death (I think he was 52 yrs old) his wife found the last denial letter dated 1 week before he died.

I've also read cases where ABLE-BODIED people have gotten discharged as well so where's the reasoning?

As I said I'm just pondering the thought of trying but for the cost he quoted it may be worth a shot. If I go for it and get denied then they can deal with more deferements and forebearances. Heck at this point in my life who cares if the interest pushes the balance up sky high? And what incentive does it give someone to try getting back to work??

[dingdong]

As I said I'm just pondering the thought of trying but for the cost he quoted it may be worth a shot. If I go for it and get denied then they can deal with more deferements and forebearances. Heck at this point in my life who cares if the interest pushes the balance up sky high? And what incentive does it give someone to try getting back to work??

I know, it is frustrating, sometimes the "system" doesn't make much sense at all. Hopefully your attorney can get some inside info on how the judge in your district may rule before you actually hire him for an AP and kind of flush out the pros and cons of whether the AP will fly.

I work in an upscale restaurant, and we had a banquet a few weeks ago, it was a group/association of family law lawyers from the area and the speaker was a family law judge. I had my ears pricked up the whole time I was serving them, and at one point the judge/speaker asked the group if they wanted to ask some hypothetical questions (legal issues) and basically questioned the judge on how she would rule given certain circumstances.

It was interesting to see that attorneys could essentially posit hypothetical situations and basically see if their argument would fly in front of the judge given her political ideaology and personal theory on law.

Just from the short time I spent in the room with these people and the judge, I could tell that she leaned heavily towards favoring giving woman custody rights over men, hated pre-nups and encouraged challenges on them, etc.

My point is, these attorneys had a good idea going into litigation, how this particular judge may rule, or at least understood her ideaology better and the perspective she had and how she interpreted the law.

On your next meeting with your attorney, perhaps you can ask him "what do you think the probability is, given the judge in this district, that the judge will rule favorably on an AP to discharge my SL?" "Have you discussed this issue with any other attorneys in this district who have brought an AP for SL discharge in front of a judge, and what is their opinion on our chance of success?" and "Have any other debtors in this district succesfully discharged their SL debt through an AP-and if not ,what were the reasons for denial?" "Do you see any reasons why I would not pass the Brunner test, and what would those be?"




1600.00 is a lot of money,but definitely worth it if you can get that SL monkey off of your back. Do your due diligence with your attorney and make sure he does his and is confident of his/your chances of success.



DD