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Follow on Google News | Student Loans are not dischargeable automaticallyThe Sixth, Ninth, Tenth and Eleventh Courts all agree that student loan debt cannot be discharged, wholly or partially, without satisfying the undue hardship requirement of § 523(a)(8).
By: Brian D. Lerner For dischargeability of an NHSC debt, the loan must be at least seven years old, measured from the first date when repayment of the loan was required, exclusive of any period after that date in which the payment obligation was suspended, and the bankruptcy court must find that the non-discharge of the debt would be “unconscionable,” Armed with these statutes and judicial interpretations, the holders of student loans may, and commonly do, wait until after the debtor’s case has been concluded, either through performance of the plan or issuance of a Chapter 7 discharge, to then make demand for payment of the loan, or to execute against the debtor’s now less encumbered assets. Thus, if the Chapter 13 plan does not effectively deal with the student loan, the situation will eventually come to the debtor’s notice and it is not impossible to imagine that the debtor might assert a claim for damages for malpractice unless there is a clear document trail showing the problem was addressed as well as could be under the circumstances of the case. In all cases, the debtor has the burden of bringing an adversary proceeding and obtaining a judgment of dischargeability. The prudent practitioner will advise the debtor of the jurisdiction’ # # # I have been a licensed attorney since 1992. I have passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. My firm helps prepares many different types of bankruptcy petitions. They will be prepared and filed in the Bankruptcy Court where the bankruptcy records will be stored for many years. End
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