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Contrary to news reports, there are times when you can wipe out student loans in a bankruptcy case.
To do so, you’re required to not only file for bankruptcy but also to file a separate lawsuit and prove that the debt amounts to an undue hardship. If you can meet the standard required under the bankruptcy laws then you will be able to wipe out your student loan obligations – but if you fail then you’re going to walk out of bankruptcy saddled with the same bills as when you walked in.
It’s a gray area at best, with courts split on the way to address the standards set by the law.
This uncertainty is the student loan industry’s most powerful tool, making people believe they shouldn’t bother trying to discharge their student loans in bankruptcy.
In some situation, you can be reasonably sure bankruptcy won’t help with your student loan problems.
 But that’s not always the case.
Instead of being bullied by student loan companies into dismissing bankruptcy as a solution, weigh the risks and reward to make an informed choice.
The Law on Discharging Student Loans in Bankruptcy
The law says that bankruptcy won’t discharge you from a student loan unless the court finds that the student loan would impose an undue hardship on you and your dependents. In the context of bankruptcy, a student loan means any of the following:

1. an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or
2. an obligation to repay funds received as an educational benefit, scholarship, or stipend; or any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual.

In my experience, qualifying for an undue hardship discharge of student loans in bankruptcy isn’t easy. The law doesn’t define what undue hardship means, so it’s up to the judge. Many courts use what’s called the Brunner Test, and others look at the totality of your circumstances. Either way, you’ve to prove that you meet the legal standard and battle the student loan lender.
Your student loan lender can (and usually will) argue against discharging your student loans. The bankruptcy judge may not be fond of letting people walk away from student loans in bankruptcy. Or he may not buy your argument.
With that in mind, here are the five times when you shouldn’t try to go file for bankruptcy to wipe out your Federal student loans.
When Bankruptcy Is A Bad Move for Student Loan Relief
You shouldn’t try to discharge your student loans in bankruptcy if:
The only loans you have are your student loans. If the student loans are all you have, then losing the student loan discharge case means you wouldn’t get any benefit from the bankruptcy at all.
You have other non-bankruptcy ways of discharging the loan. Federal student loans can be discharged or forgiven in a variety of situations that have nothing to do with bankruptcy. Those procedures are easier than pursuing a bankruptcy discharge and are handled without the uncertainty that comes with bankruptcy.
You may qualify for Public Service Loan Forgiveness. Under PSLF, the unpaid balance on your Federal student loans is forgiven after 120 timely monthly payments. The forgiveness under PSLF is tax-free and is an administrative manner handled without getting a judge involved.
You’d be able to pay the student loans if you wiped out the other debts in bankruptcy. Under any interpretation of undue hardship, you’ve got to be unable to repay the student loan and continue to support yourself and your dependents. If discharging your other debts in bankruptcy will enable you to pay the student loans, then your argument for undue hardship falls apart.
You’re retired, receive income only from Social Security retirement, and have no assets to protect. The Federal government can take your tax refunds, garnish your paycheck, and sue you to collect a defaulted student loan. A private student loan lender can file a lawsuit but can put a lien on your property and start a wage garnishment only if it gets a judgment. If you’ve got no income and no property then there’s nothing to seize. If your Social Security income is retirement-based rather than disability-based, then the government can’t take your money. Getting a discharge of your student loans in bankruptcy won’t give you any benefit, so it doesn’t make financial sense to pursue that remedy.
Analyze Your Situation Before Seeking Student Loan Discharge
I talk with clients every week about using bankruptcy for their student loans. Often, they come to me after they’ve spoken with a bankruptcy attorney who doesn’t have an understanding of student loan law.
Those clients are frustrated and looking for someone to represent them. They didn’t get a straight answer from the other bankruptcy attorneys, some of whom would have filed the case but only with a hefty legal fee and a pessimistic attitude.
Many of these lawyers have bought into the lie that bankruptcy is never going to wipe out student loans, bullied by student loan companies into submission.
Sometimes it makes sense to pay the legal fee and try to wipe out the student loan, but there’s no way of knowing for sure without a complete understanding of the issues.
You need to look at your entire financial situation, determine your other options for solving your student loan problem, and move on from there.
That’s why I look at every issue and consider each alternative before making a recommendation to a client. Every bankruptcy lawyer with student loan knowledge would do the same for you, just as every attorney who practices in bankruptcy court would engage in a complete analysis of your alternatives if you were struggling with excessive tax debts or a foreclosure.
It’s part of the process of deciding which option is best for you, and how to best structure a solution to your student loan problems.

The post Here’s When You Shouldn’t File for Bankruptcy to Discharge Your Student Loans appeared first on Shaev & Fleischman P.C..

Below is a partial transcript of David M. Siegel as he talks bankruptcy law for the Legal Action television show which airs on Comcast Cable throughout Chicago and its suburbs: Interviewer: Let me ask you this.  I work at a bank so is my employer going to find out if I do a bankruptcy? David Siegel: Your+ Read More
The post What Happens When I File Bankruptcy? appeared first on David M. Siegel.

If you don’t pay your Walworth County real estate taxes, you will lose your home. That statement is straight to the point. Walworth County real estate taxes are due at the end of January. Is this the third year you have been unable pay? If so, you may lose your home due to unpaid property taxes.
 
What Happens When Walworth County Real Estate Taxes are Delinquent?
Most homeowners set up an escrow account with their mortgage lender to pay their Walworth County real estate taxes. An “escrow account” means that in addition to their monthly mortgage payment, the homeowner pays additional funds each month to pay for real estate taxes. The escrow amount is rolled into the monthly mortgage amount. For instance, if your Walworth County real estate taxes are $2800 a year, you can divide that amount by 12 (for 12 months in a year) and that amount, which is $233, would be added into your monthly mortgage payment.
If a homeowner does not establish an escrow account, the homeowner is responsible for paying their yearly property taxes on their own, separate from their mortgage payment. When homeowners face financial challenges, they may elect to not pay their Walworth County real estate taxes. This situation can quickly escalate. The county will charge late fees and interest in an extraordinarily high amount. Even if a homeowner has finally saved enough to pay their real estate taxes, say in June, the penalty and interest is so much that they still can’t pay the entire amount, and it just keeps snowballing. Before they know it, next year’s Walworth County real estate taxes are due, again. Does this sound familiar?
After a homeowner has been delinquent paying Walworth County real estate taxes for three years, the county treasurer will initiate a tax sale. You will lose your home based solely on delinquent property taxes. The homeowner will receive notice of the tax sale. The home, along with other homes being auctioned, will be published on the county website. The home will be sold to the highest bidder.
 
How To Avoid Walworth County Foreclosure and Tax Forfeiture
A homeowner will have one year to redeem their property back before the title changes hands. Is that long enough? Will you be able to come up with the full amount to buy back your home? In most cases, the answer to these questions is “no”.
If you wish to avoid the sale of your home due to nonpayment of taxes, you may want to consider bankruptcy. Odds are that if you are behind on your Walworth County real estate taxes, you are behind on other payments as well, such as: credit cards, mortgage payments, personal loans, medical bills, etc. If this is the case, speaking with an experienced Walworth County real estate and bankruptcy attorney would be most beneficial. In the majority of cases, filing a Walworth County Chapter 13 Bankruptcy will allow you to keep your home.
 
Speak with a Walworth County Bankruptcy Attorney
Now is the time to speak with a Walworth County bankruptcy attorney. Waiting until it is too late is never a good idea. Our experienced real estate and bankruptcy attorneys can assist you with finding a solution to your financial dilemma. There may be several options to save your home available to you. Wynn at Law, LLC offers free initial bankruptcy consultations. Contact us to have all your questions answered and put your mind at ease. We are here to help. You can reach our Walworth County bankruptcy attorney by phone at 262-725-0175 or by email via our website’s contact page. Wynn at Law, LLC has bankruptcy offices located in Lake Geneva, Delavan, Muskego, and Salem, Wisconsin.
 
Find out if you qualify for bankruptcy.
Click Here to Get a Free Bankruptcy Assessment
from Wynn at Law, LLC
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*The content and material on this web page is for informational purposes only and does not constitute legal advice.
 

A few years ago I had a client who needed to file for bankruptcy. He was a talented musician who’d had a few good years but when tastes in music shifted he was left behind.
Now he was working an entry level job at 56 years old just to make ends meet. And he was deep in debt to the government for unpaid income taxes.
The IRS and the state taxing authorities were coming after him, threatening wage garnishment. His income was barely enough to get through each month, and he was scared.
His problems were magnified by the fact that he’d never filed tax returns for the years in question. All the tax debts were assessed by the IRS based on their own calculations – not his.
In order to get him through bankruptcy, he needed to get his tax returns filed.
Disclosing Your Income and Tax Information
The Statement of Financial Affairs for Individuals Filing for Bankruptcy, one of the documents you’ll need to complete in order to file for bankruptcy, asks for your income over the past two years. That means you’re going to need to get your hands on that information, and tax returns are typically the fastest place to look. You can get that information without a completed tax return, but the information is more difficult to get together.
Beyond that, you’re required by law to list all of your property – and that includes any tax refunds you may be owed. If you haven’t filed your returns then you don’t know whether the government owes you money (lots of my clients thought they owed money for taxes only to find out they were wrong), and if you don’t list the refund then you lose the right to claim it after your bankruptcy case is over.
Income Tax Returns In Chapter 13 Bankruptcy
The problem of unfiled taxes in terms of filing bankruptcy, however, hits you square in the face if you’re filing Chapter 13.
Under the U.S. Bankruptcy Code (11 USC 1308) you’re required to have tax returns filed for all taxable periods ending during the 4-year period ending on the date of the filing of your bankruptcy case – and you’ve got until the day before your meeting of creditors to get it done.
Depending on where you file for bankruptcy, your local rules may also require that you provide copies of tax returns to the trustee assigned to your case. Without those filed returns, the trustee may have a bone to pick with you – and that will ultimately go to the judge.
So if you’re behind the times in terms of filing your taxes, and don’t have everything lined up you’re going to run into some severe problems when filing bankruptcy under Chapter 13.
Income Tax Returns In Chapter 7 Bankruptcy
If you’re filing Chapter 7 bankruptcy then you may have problems if you haven’t filed your tax return for the past year.
Under the U.S. Bankruptcy Code (11 USC 521(e)) you’ve got until 7 days prior to the meeting of creditors to provide the case trustee with a copy of your most recent tax return.  If you’ve been diligent about your obligations this should be a snap, but if you’re sending along a 5 year old return yet showing current income then under 11 USC 521(f) it’s a different story.
You may be required to file with the court copies of your tax returns that are past due; you may also be required to file them with the court on a going-forward basis for some period of time.
All in all, those unfiled taxes are going to cause no small amount of headache for you.
Unfiled Income Tax Returns Could Mean No Discharge
On a larger scale, when you don’t file your tax returns prior to filing bankruptcy there’s going to be an issue with respect to how those debts are handled in the case.  Not only won’t unfiled tax debts be discharged in a Chapter 7, they won’t be paid out in a Chapter 13.
It’s a better idea to file your returns before walking into bankruptcy court so that your lawyer can help you deal with those potential obligations now rather than having them loom larger later.
File Your Returns for Maximum Protection in Bankruptcy
My client ended up filing 13 years worth of tax returns before we filed his bankruptcy case. Thankfully, he didn’t owe any money for many of those years and had a nice refund check on tap for the most recent two years. That refund offset much of what the IRS said he owed, and he was able to handle the remaining balance with a modest payment plan.
Had he not filed his returns then we wouldn’t have been able to list the refunds, which would have cut off his right to receive the money. His overall tax debt would have been higher, and he would have been unable to pay it off given his financial situation. That would have cost him thousands of dollars in additional tax liabilities, as well as financial headaches that would continue for years after his bankruptcy case was over.
The trustee may have asked the bankruptcy court to throw his case out of court due to a failure to provide his tax returns, which would have put his case in jeopardy. Though we may have won the argument against the trustee, it would have cost my client more money in legal fees, to say nothing of the anxiety surrounding an argument in court.
In the end, filing the tax returns was the better solution. If you’re in a similar position, it’s a good idea for you to follow my client’s lead – file your returns before walking through the doors of the bankruptcy court.
The post Why You Should Always File Your Tax Returns Before Bankruptcy appeared first on Shaev & Fleischman P.C..