Can't locate form 'Complaint to Determine Dischargeability of Student Loan'

[Slopoke57]

All,

I am filing pro se. I am after discharge but before the close. While reading my Nolo book for post-discharge issues, I saw that student loans can be discharged under certain circumstances. I had been told by everyone, attorneys included, that was simply not possible. I'm in Middle District Florida and the requirements are spelled out quite clearly. They might be difficult to meet but, they are there.

So, I let the court know that I would be sending this motion? well before close.

The book names the form as in my message title but, I cannot find this form anywhere. I also looked in this forum's section on forms. The link to middle district forms is there but, I had already been there. The form I want my be there but, I can't find it.

Any help much appreciated,
Glen B

[justbroke]

Be careful. This is one area of a pro se case that I will caution anyone to tread lightly on.

1. Adversarial Proceedings (AP or Complaints), can get expensive to litigate
2. if you lose the AP, you may end up paying additional attorney fees (the respondent's fees)
3. You must understand the Federal Rules of Civil Procedure and Federal Rules of Evidence, in addition to the Federal Rules of Bankruptcy Procedure
4. The NoLo books don't address APs because they are mini-lawsuits and can be challenging
5. Depending on your District, you may need to issue a Summons to Answer or Appear
6. You need to clearly state your factual and legal basis for discharging the debt and be able to make your case during trial.

Personally, I wouldn't attempt it, but having wrote what I wrote.

You need to file, in your District, the appropriate format for an Adversarial Proceeding / Complaint. The "cover sheet" (Form B104) is not the complaint. It is just a summary sheet for the complaint. It is a form, but is not your pleading. Of course, you will then need to serve the pleading appropriately as well.

There's a generally recognized format for all Complaints. However, your local rules may have a specific form, but I know of none for Florida Bankruptcy Districts. You should look around (search) for some Adversarial Proceedings to see the format.

Here's the official coversheet... B 104 Adversary Proceeding Cover Sheet (08/07). All forms are located at http://www.uscourts.gov/bkforms/bank....html#official but the local District may have District specific rules and procedures.

[HHM]

I agree, this is not something a pro se litigant should attempt, its a major undertaking. You should find someone willing to do it pro bono.

Are you asserting hardship, if so...

Realize, you MUST call expert witnesses to testify and YOU are the one that is going to have to certify them as experts and do the direct examination. These are not just simple hearings where you show up and plead your case. These student loan cases are full blown civil proceedings with discorvery, certifying of experts, and a bench trial where you call witnesses to testify as to your earning potential, nature of the hardship etc. The burden is on YOU to prove that paying back the student loan is a hardship. I wish you luck.

[Slopoke57]

Thank you for your informative reply.

I didn't realize "the Federal Rules of Civil Procedure and Federal Rules of Evidence, in addition to the Federal Rules of Bankruptcy Procedure" would come into this.

Also, I didn't envision a win/lose with costs type of situation. I thought the judge would allow it or not based on my two pages of arguements.

Again, thank you for this valuable information.

Glen B

[Slopoke57]

HHM,

Your post came in while I was drafting my previous reply.

I do have all weekend to prepare myself for this.

I think I'll be looking around for some expert help. What kind of incentive could be offered that might make an attorney consider pro-bono?

Glen

[justbroke]

PACER is down in most parts of the country today. Otherwise, i would have found a sample complaint (pleading) for you.

In any event, try to find a lawyer to take this on. Pro Bono lawyers usually will work if it's a hardship. There are some great pro bono attorneys in Jacksonville, so I heard. (I don't live anywhere near Jacksonville, so can't remember his name... but he received the highest honors even from the U.S. Bankruptcy court as an advocate of debtors and the process.)

[Slopoke57]

Interesting. I will have to do some searches...

Thanks

[HHM]

The fact is, these cases are rarely brought. For an experienced attorney, they are not particularly difficult to do, but its rare to find an attorney that does these on a routine basis. Thus, the incentive for most attorneys is a chance to bring the case, most debtors simply cannot afford to bring these actions, these types of cases tend to cost $10,000-$12,000

Incidentally, what exactly is your fact scenario such that you think you even have a viable case?

[dingdong]

I have a Neuro Surgeon's education worth of SL ( and no, I am no where near having a doctorate in anything!)

And although I would love to have this debt discharged, I wouldn't even consider attempting a AP on a SL debt.

I did some research on discharging SL debt prior to filing and what I found out is, unless you are basically so severely disabled or for whatever other reason- have no chance of making any source of income during your lifetime, your SL debt is here to stay. And even if the former applies to you, it is not a slam dunk for dischargability.

Because there are programs like the income contingent repayment plans and the 25 year limit on paying back the debt, the courts generally don't rule payback of the SL debt a hardship because the monthly payments can be reduced to accomodate income.

I read a bunch of case law dealing with dischargability of SL, and virtually every case was ruled non-dischargable and there were some pretty needy debtors that tried to discharge the debt.

I doubt it would be worth the effort, headache and expense unless you are so incredibly disabled that you will not be able to work/earn income in the future.

That being said, there are programs where you can get your SL forgiven by, for example, teaching in an underserved market ( read ghetto/poor/dangerous neighborhooods or some special ed programs)

There are other debt forgivness programs out there, you can do a google search and see what is offered.

[HHM]

Dingdong is absolutely correct. We are not trying to discourage you, but give you a realistic expectation of what is involved.
Even this case which I posted in the student loan forum

http://www.bkforum.com/showthread.php?t=33234

Was only won, for the most part, on a technicality. The one student loan provider did not offer an income sensitive repayment option, thus, under the debtors circumstances and future income prospects, the student loan was considered a hardship.

[Polydad]

Candidate for Hardship on Std Loans/Ch 7 BK?

My first post so not sure if this will end up on the right tread but let's try. I'm about to file myself for Ch 7 but I also want to try the hardship on my Parent Plus loans. I hope some of you experienced posters read and offer ideas/comments as it sounds like a lot to bite off but I seem to fit the profile.
So here's the raw detail:
- I'm single, 68 years old, healthy, unemployed, ex-corp computer industry salesman
- current income and for a few years now - 1600 for SS and 450 from a small pension plan
- less assets than even exemptions cover- less than $10K; debt of nearly $150K of which $75 k is from the Parent Plus loans to get the kids through school as my world crumbled this decade.
- I can live frugally on the $2050 in So CA but nothing left for even medical, dental, gifts, family, fun,....etc.

So it seems like I meet the briefly stated requirements....I have paid along the way as long as I could, I can't live long enough to even pay the consolidated and extended monthlies, and if they made me pay the $600 a month I would be living under a bridge somewhere...chances of a job these days if bleak and at 68 it gets impossible very soon if not already.

So I keep searching for a case like me or comments, etc. but none so far....and if I'm dirt poor how could I pay $10K for help...I'm already doing the Ch & on my own!

Help please,

Gary

[HHM]

You sound like a good candidate, but remember, you still have to file the Adversary Proceeding in BK.

[Polydad]

Follow-up - to am I a candidate Q

HHH, thanks, certainly reading everything I can find so far it looks like no one ever wins. So can I follow -up with a few questions at the next level.

- Do I get to attach a brief/or detailed argument stating my reasons with the Adversary form so that who ever reads the argument can make a 'go/no go' decision? If everything automatically goes to a full blown court case how could someone who is another level in need below the BK requirement - poverty line, etc. - ever really pursue it? I can't really afford the basic BK7 effort (so doing this grunt work myself - I'm thankful already for this Forum!) so the $10K ain't gonna happen for a court case!

- It doesn't appear that the Adversary issue affects the rest of the BK7 decision in action and timing? Ture?

- So here's another major idea I ask comments on. If I go to the lender or servicer (EdFund) with an argument that I would and could try a significantly reduced loan and payment structure....let's say 20% of what is there today rather than just never paying forever and have the balance go to the moon and their costs mount, etc....would it be better to try that card before the filing of the Adversary and a decision is render on it or after if I lose on it?

A note here for all that I did trip over is that, while forgiveness nearly always creates a taxable income on SLs, it appears that if you take the forgiveness while still way under water assets to liabilites wise that there is a tax exception you can exercise so it is another factor for consideration as normally the tax issue moves your problem to the IRS and that is maybe the worst place to owe. Any experiences or comments?

Finally, I see nothing anywhere where the comments revolve around the Parent Plus version of the SL situation or am I not looking under the right rocks...reason is that there the age factor might be more likely an issue if their family came late.

Thx, Gary

[dingdong]

One bump in your road to determine dischargabilty of your PLUS loans is the availability of consolidation through the William Ford Direct Consolidation Loan program.

PLUS loans can be consolidated throught the program. They have a program called the Income Contingent Repayment Plan. Under this program , Ed Fund looks at your IRS tax returns and determines your payments for the SL debt based on your income. They offer up to 30 years of repayment. If your income is very low, they can adjust your payments from anywhere to 0.00 to what ever.

To give you an example, during a couple of years of my repayment terms, my payment was 0.00 for a year and then bumped up to 5.00/a month one year, and 22.00 the next. I do have two dependants, which helped keep my payment low, but my income was larger than the income you personally make now as stated in your post.

My SL debt is larger than your stated SL debt.

So while you may feel that you qualify for hardship, if a BK judge is aware of these programs ( and I am sure many are) they may not allow dischargiblity based on this fact alone. That although the debt may be large and seemingly unmanageable, the payment plans offered through a consolidator can make payment of the SL debt manageable.

And although a payment of 25.00 (hypothetically) will not even begin to make a dent in the balance, it is still income to the govt, and circumstances may change in the future ( though probably unlikely) that may warrant a higher payment (i.e you obtain a better future income, inheritance or windfall of some sort).

If you are in repayment in the WFDL program, after 25 years, the balance of the loan is forgiven.

I am not trying to discourage you from trying to discharge this debt, and more power to you if you can get it done, but it may be cost prohibitve if you try and fight through an AP to determine dischargiblity and the judge says, "well have you tried consolidation through WF?" or if the judge is aware of what possible payment the WF program can offer you.


You might want to call WF and see what the payments would be like given your income and debt amount and know that info going in to the AP, that X payment through the IC plan is still too high for you to make it. That way at least you would have some ammunition for determining hardship. IF the WF people say your payment is only going to be 10.00/month, the judge may have this info available and say that given your income, 10.00 is not a hardship.

[Polydad]

Dingdong, thanks some real interesting and encouraging ideas to follow up on. I did go to a site about the Income Contingency Payment and see this comment deep in the article..."Only student loans may be included in the income contingent repayment plan. Parent loans, such as the Parent PLUS loan, are not eligible. Only loans that are guaranteed by the Federal government may be included. (Grad PLUS loans are not eligible for income-contingent repayment until July 1, 2009. However, consolidation loans that include Grad PLUS loans are eligible for income-contingent repayment, provided that the borrower did not enter repayment before July 1, 2006.) " Is that in conflict with what I see you saying or am on the wrong page? Since you appear to be from CA and have experienced this yourself I really appreciate your comments - am I correct that you were also under the Plus version not just a student with direct SLs?

I did do a reconsolidation at one time of most of it and am out to I'd be 95 when the last payment is due...but I'm still owing $600 a month that I will never have, baring a Lottery win, again or for that long...lol...like I'll live to see the day!

Another question concerns the altenative of renego the entire package if one was betting that you would lose the Adversary approach. Would they renego? and if its possible, when is best...before you get beat or have to go to court or after you lose and still can't pay. One reason this timing appears of some relovance besdies the odds being better one way or the other is that the forgiveness before and after BK when the assets to debt ratios change might make a tax difference on the forgiveness...there are exceptions to forgiveness if you have a terrible asset to liability ratio it seems.

Thx, Gary