Complaint to Determine Dischargeability of Student Loan Debt

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Stanley Tate

#1 Student Loan Lawyer

Updated on November 22, 2022

Getting rid of your federal and private student loans in bankruptcy starts by filing a Complaint to Determine the Dischargeability of Student Loan Debt with the bankruptcy court.

The bankruptcy judge won’t discharge your student loan debt at the end of your case. Before that happens, you’ll need to return to bankruptcy court and launch a second process called an adversary proceeding. You’ll need to file two documents to start that proceeding:

Filling out the cover sheet requires little skill or artistry. The information required is easily accessible. You must inform the court:

  • Who you’re suing — e.g., the student loan creditor.

  • Your cause of action — undue hardship.

  • What law you’re using — 11 U.S.C. § 523(a)(8).

  • Your bankruptcy case information — e.g., the case number, the district court where the case was filed, the judge’s name, and so on.

The complaint is often more challenging to complete because it isn’t as straightforward. There are many ways to do it. The only requirement is that you offer a short and plain statement that tells the court the relief you’re seeking and why you should get it.

Example: “Despite making a good faith effort, Joan can’t maintain a minimal standard of living for her family while repaying her loans. As a result, the court should discharge her student loan debt because repayment would place undue hardship on her and her dependents.”

The cases I file for clients provide more detail. I prefer to add facts and information that give context to why we believe the court should grant a hardship discharge. For example, I will:

  • Offer details that show why it’s impossible for my client to keep up with her living expenses and student loan payments.

  • Include evidence of her education, work experience, past earnings, and other additional circumstances that are likely to continue throughout the repayment period.

  • Calculate the daily interest and show how her loan balance will balloon over time even if she made monthly payments based on her income.

  • Demonstrate that she has exhausted all of the repayment options available to her from the lender, such as consolidation or refinancing, or suspending payments through deferment or forbearance.

In some cases, I’ve even included photos of my client’s house and car to show the level of disrepair both were in.

Related: How to File an Adversary Proceeding for Student Loans

Are these details necessary? No. But they help show my client’s humanity by injecting color and feelings into the proceeding.

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When to file the complaint?

The complaint can be filed any time after you file a bankruptcy petition with the court. The Bankruptcy Code and rules even allow you to reopen a closed case to challenge the nondischargeability of your education loans. See Fed. R. Bankr. P. 4007(b) and 11 U.S.C. § 350. If you file Chapter 13 bankruptcy, the court may force you to wait until near the end of your Chapter 13 plan. See United Student Aid Funds, Inc. v. Taylor (In re Taylor), 228 B.R. 747, 750-51 (9th Cir. BAP 1998) (Chapter 13 debtor is generally not entitled to a discharge of debts until after completion of payments under a plan).

What test will I need to pass to discharge my student loans?

Congress didn’t define undue hardship. So courts created different tests to analyze whether a student loan would impose an undue hardship on the debtor and the debtor’s dependents. Read more about how to prove undue hardship for student loans. Most people will need to pass the three-prong test established in Brunner v. New York State Higher Educ. Servs. Corp. (In re Brunner), 831 F.2d 395 (2d Cir. 1987) to get rid of their loans. Read more about the Brunner Test. Others will need to pass the totality of the circumstances test.

Bottom Line

There’s no one right way to write a Complaint to Determine the Dischargeability of Student loan Debt. Use the sample complaints I’ve shared above as a starting point in designing your complaint.

That said, owning a hammer doesn’t make you a carpenter. When you owe tens of thousands of student loan debt, it makes sense to speak with an experienced student loan bankruptcy lawyer before you try to go at it alone.

Let’s talk if you want help navigating the process of discharging your student loan debt in bankruptcy.

UP NEXT: Why Can’t You File Bankruptcy on Student Loans?

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