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The Nebraska Bankruptcy Court has ruled that a $40,913 federal student loan owed by a 67 year old debtor whose sole source of income was from Social Security retirement in the amount of $830 per month should be discharged.   In re Grimes, Case #06-81303 (2013).   In coming to its decision, the court applied the “Totality of the Circumstances Test” focusing on three factors:
 

1. The debtor’s past, present and reasonably reliable future financial resources;
2. A calculation of the debtor’s reasonable and necessary living expense; and
3. All other relevant facts and circumstances.

The court noted that the debtor’s efforts to lower the student loan payment by applying for available Income Based Repayment (IBR) plans is a relevant factor in assessing whether the student loans place an undue burden on the debtor, but in this case the Court found that such payment options are merely one factor to consider and is not decisive.  In this case, the debtor’s income was below the Federal Poverty Guidelines and thus no payment would be required under an IBR plan. 
The most difficult defense raised by federal student loan creditors when seeking a discharge of student loans is the availability of the income-based payment plans.  Debtors seeking to discharge student loans in bankruptcy face an uphill battle unless they avail themselves of these programs prior to seeking a student loan hardship discharge in bankruptcy.   However, senior debtors living on a fixed retirement income may not have the same opportunities of younger debtors to secure supplemental employment and it appears that the Court is willing to look beyond the IBR defense when those programs appear futile.  

Both prospective and current clients often times ask similar questions. In an attempt to answer some of the most frequent asked questions that are asked of our firm, we are creating this article to help answer so of those so frequently asked questions. Some of the most commonly asked questions specific to a case require legal advice and therefore will not be listed here. For legal advice on your specific situation you should contact our office for a consultation. Below are general answers and therefore may not apply directly to your scenario. Q: How much is this going to cost me? Can I make payments on fees?A: Not shockingly, the answer is it depends. It depends on what type of case it is and more importantly and whether the matters are contested or simply being run through the court as a matter of procedure and finality. Q: What information is needed in order to file a dissolution or modification?A: Personal information such as name, address, contact information, social security number, financial information, personal information for any parties to be involved in the matter. For modifications we will also need the original judgment as well as any other modifications. For modifications, change is circumstance or substantial and continuous change may be required to be shown to the court so documentation to support such change will likely be necessary. Q: Can’t my attorney get me everything that I want in my divorce or modification case? If I get a good lawyer I will get everything right?A: Not necessarily. Likely in your initial meeting with the attorney, they will go over what your expectations and goals are in the case and what ultimate outcome you are seeking. They will likely also go over which of these expectations are reasonable and which may need some further consideration. For example, you are getting divorced and your husband has had no allegations of abuse and no other reason that the court would find him to be unfit. You want sole physical and legal custody with only supervised visits with father. This is likely an unreasonable expectation. Your attorney will hopefully help guide your expectations into more reasonable and likely outcomes. Remember that the court looks at the best interests of the children. It is unlikely that the best interest of the children is to have only limited and supervised visits with a father whom has shown no signs of abuse or other harmful behavior.

            It is getting towards the time of the year when people start thinking about how much money they might receive for their tax refunds early next year.  If a potential debtor is thinking about this, then a Chapter 7 or Chapter 13 Trustee will also likely be thinking about it.  […]

           If you have spoken to anyone before about bankruptcy, they probably told you that they received a “discharge” of their debts.  I have noticed when I am meeting with clients for the first time and I let them know they are eligible for a discharge, often I get a look […]