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Seven Little Steps To Freedom: Hearings, discovery and motion practice

The first thing that will happen after the defendant answers the complaint is what’s called the initial hearing, roughly 6-8 weeks after you file.  At this hearing, you will agree to a trial schedule and a discovery plan.  Generally, you should allow three months for discovery, with the trial to follow one to two months afterward.  This will likely be formalized into a scheduling order and signed by the judge.  So, total time from filing the complaint to trial is about six months.  That’s your schedule.

Soon after filing the complaint and the preliminary hearing, you’ll be getting discovery requests in the mail. The creditor will likely send you what are called interrogatories, requests for production, and requests for admission.  You can object to many of these inquiries based on relevance and burden, but there are four things you must have to fulfill your discovery obligations.

  1. a monthly budget showing your client’s necessary and reasonable living expenses
  2. one year’s worth of bank statements;
  3. one year’s worth of paystubs;
  4. two recent tax returns.  This will form the basis of the creditor’s initial settlement offer.

 

 

Best Case has also provided some discovery templates for you to serve on the creditors.  These documents will help demonstrate whether the creditor has sufficient evidence that the loans they seek to exempt from discharge are really “qualified education loans.”  Take a look through the requests to get familiar with what is being asked.  You want to remind the creditor that you will insist they prove all of their loans are qualified education loans. This can be very difficult to do, and if the creditor does not have sufficient evidence to meet their burden, you will be in a better position to settle on favorable terms for your client.

If you have multiple defendants, chances are not all of them will not respond, and you can get a default judgment against some of them.  The others will simply require responding to more inquiries with the same information you would have used against a single defendant.

 

 

If during the course of discovery, you become confident that you can prove some or all of your client’s student debt is non-qualified, it’s a good idea to file a motion for summary judgment to get that debt discharged right away (unless opposing counsel is willing to stipulate to discharge, which also happens).

Best Case has provided a motion template that you’ll need to review and fill in the specifics for your client.  The difficult part may come in providing the court with enough admissible evidence to grant your motion.  If the school was not accredited, you can simply attach a printout from the Department of Education’s list of Title IV schools in the year your client borrowed the money.  If you client’s school does not appear on the list, then the school was not accredited (and most courts will take judicial notice of this).  However, if your client attended an accredited school but simply borrowed more than the “Cost of Attendance,” then you’re going to need to get creative on how to prove this.  First, ask your adversary to stipulate to the authenticity of the IPEDS report.  If they refuse, get a certified copy of your client’s student account statement along with an affidavit from the financial aid office.  Third, if neither of those work, get a certified copy of the published “Cost of Attendance” from the Department of Education.


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Austin Smith, JDAustin Smith is a litigator who focuses on discharging private student loans in bankruptcy. Smith’s article, The Misinterpretation of 11 USC 523(a)(8), was foundational in articulating the proper scope and application of the student loan non-dischargeability provision of the Bankruptcy Code, and its arguments and reasoning have been adopted by bankruptcy courts. Smith’s work has been profiled by the Wall Street Journal, the American Bankruptcy Institute and more.