Bankruptcy can help stop a student loan lawsuit against you and the cosigner. It also can help you both clear the student loan debt. But that process can be stressful, costly, and challenging to navigate.
Stopping a student loan lawsuit
If you’re being sued for a student loan, filing bankruptcy could stop the lawsuit in its tracks for you and the cosigner. It all depends on the type of bankruptcy case you file.
Chapter 7 bankruptcy only protects the person who filed the case. The lawsuit can continue against the other person. So if the primary borrower files a case, the lender could still go after the cosigner. And if the cosigner files Chapter 7, the lender could go after the primary borrower.
Chapter 13 bankruptcy, however, will stop the lawsuit against the primary borrower and the cosigner, no matter who files the case. This type of bankruptcy has a special rule protecting codebtors from collection activity. The bankruptcy won’t appear in their credit history or affect their score. The creditor will get notice from the bankruptcy lawyer that the case was filed. Read more about being sued for student loan debt.
Wiping out the loans
Student loans can be discharged in bankruptcy if the person who filed for bankruptcy, known as the debtor, files an adversary proceeding and convinces the bankruptcy court that the student loan payments would cause them undue hardship.
The primary borrower can be the debtor. It could also be the cosigner if they file their own case. They can only file for bankruptcy together if they are married.
Regardless of who files, the next steps to getting a discharge are the same: file a lawsuit, known as an adversary proceeding, and a Complaint to Determine the Dischargeability of Student Loan Debt.
In the adversary, the debtor will need to prove they can’t make the student loan payments without undue hardship. The Bankruptcy Code doesn’t define the undue hardship standard, so courts created their own definitions and tests to measure it. Judges in a few jurisdictions can consider the “totality of the circumstances” in their decision. But in most of the country, judges apply a stricter interpretation known as the Brunner Test.
Regardless of which test is used, until recently, the chances of getting a discharge have historically been slim. Last year, the Justice Department and the Education Department released new student loan bankruptcy guidelines that aim to make it easier to prove undue hardship for federal student loans — specifically, Ed-owned student loans like Direct PLUS Loans.
Related: Student Loan Bankruptcy Reform
These changes are unlikely to have a significant impact on private student loans. But that shouldn’t be an issue. Private loans, in my experience, are easier to discharge than federal loans because private lenders don’t provide income-driven repayment plans, student loan forgiveness, and so on.
Learn More: Can You File Bankruptcy on Private Student Loans?