Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

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Adversary/Pro Se

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  • Adversary/Pro Se


    So, I owe about $175K in student loans, $28K of which are private. Am current with loans (was continually deferring feds or paying $50/m). I was discharged from Ch.7 in Sept'10 and we filed an adversary proceeding to try & eliminate or reduce my student loan debt. I have a good job but really earn as much as I'm going to & never intended to support a family of 4 on 1 income: husband long-term unemployed (construction), 2 young kids.

    SO, we settled with the privates (41%: payments of $100/m for 10 years). We had a similar agreement with DOE (41% over 15 years)- then DOE has new people/new policy and will apparently only settle for medical cases only.

    I don't foresee my economic situation changing any time soon- even when (if?) husband finds employment- we have no savings, need to buy a 2nd car (he's borrowing a 20-year-old truck) which means car payment (even if older), more insurance, gas, deferred maintenance on home (renting isn't cheaper than owning in our situation) and my payments would be $800/m for 30 years, which is obviously crazy.

    SO, now that DOE won't settle, case is set for trial. But I can't afford a trial & we really don't know how the Judge will rule which makes trial super risky-- there was precedent for dismissing/reducing but now there are lots of new judges & no recent cases on point.

    So, my atty recommends proceeding pro se. I'd only have to do the trial brief (fine) and the kicker is, of course, representing myself. Which gives me a bit of a heart attack- I mean I guess I can observe some AP proceedings. I'm getting an electronic copy of all my files and the ironic twist is that I am an atty but I don't do trial work/litigate.

    Anyhow, anyone here initiated an AP on student loans successfully? Any pro se? Any tips?

  • #2
    I think there was one person. A pro se case against the Department of Education is going to be a tough one. They get to use the United States Attorney for representation. They will fight just for the sake of sending a message. You may have to conduct a trial as well, take depositions, be deposed yourself, and bring experts to testify for you.

    Now that I've scared you... you can present your case. Search this forum for threads about discharging student debt through an adversary proceeding. There are hurdles and you will need to prove, through evidence and expert testimony, that you'd never ever in your lifetime be able to repay your loans. Given the reduction already given in the private student loans, that may become a more difficult hurdle since you and your spouse are capable of employment, and are employed.

    I believe the other person was tobee43, but the case was fact specific. The school where tobee43 accumulated her loans closed. I don't have any other details.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog

    I am not an attorney. Any advice provided is not legal advice.


    • #3
      Here is an AP from here in Western Washington - couple had huge loans but had reached their highest level of employment with the education they have - had 2 kids etc. and they won!!,455677

      Hope this is somewhat helpful. Good luck!!
      ~~ Filed Over Median Income Chapter 7: 12/17/2010 ~~ 341 Held: 1/12/2011 ~~ Discharged: 03/16/2011 ~~
      Not an attorney - just an opinionated woman.


      • #4
        Valley, I thought there was a similar case from California as well where one was a deputy sheriff... or I was thinking of that Washington case. Again, the Washington case is fact specific with over $320K owed on student loans and the debtors, with children being unable to do anything with their combined $5K/month "net" salary.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog

        I am not an attorney. Any advice provided is not legal advice.


        • #5
          Hey, JB, I *think* the deputy was a CA case, too. I am gonna look again in a bit.

          The couple in this case I referenced did have a HUGE amount of student loan debt - I need to re-read it soon. But at least this judge was logical in considering their case - I really admired a lot of her thought processes. I threw it out to the OP since she seems to have topped out in employment for her degree (similar to the couple in this case), it's a WA case and that most of all that maybe she could glean some helpful info from the references to other cases in it.
          ~~ Filed Over Median Income Chapter 7: 12/17/2010 ~~ 341 Held: 1/12/2011 ~~ Discharged: 03/16/2011 ~~
          Not an attorney - just an opinionated woman.


          • #6
            Hi all- thanks for the responses & case link. I heard Overstreet was sympathetic. Ch current judge is new to the bench & hasn't ruled on this issue. I am at my highest earning & husband's industry gone, no higher Ed. Already did a depo this summer & no income changes since then (or filing BK in 5/10 or discharge 9/10). I figuredi don't have a ton to lose @ this point b/c DOE will let you pay$50/m forever & sadly figure I'll just be paying until I die


            • #7
              I just want to say that Judge Overstreet is a godsend....I'm thinking there may be hope for us the OP adm - old chap (or old girl) GO FOR IT - what have you got to loose...except your chains!!!!!!


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