So your client has some large amount of student debt. You run an analysis, and it’s a collection of federal, private non-qualified and private qualified. Some of it can likely be resolved on a motion for summary judgment, and the rest will require an “undue hardship” challenge. You must, you absolutely must, file a complaint and try to discharge some or all of this debt. And you must, you absolutely must, explain this to your client and work out a way for you to get paid to do this.
How long will this take you? The answer to this question primarily depends on how many defendants there are. If you have one defendant, an adversary proceeding can be divided as follows (including travel time to court house!):
- One to two hours initial client consultation and document review;
- Two to three hours to file and serve complaint;
- Two hours for pre-trial hearing at court;
- Five hours to respond to discovery;
- Two hours for oral arguments on the motion for summary judgment;
- Three to four hours negotiating with opposing counsel and responding to their emails;
- Two to three hours to prepare the proposed findings of law and conclusions of fact;
- Five hours to prepare for trial and another 5 hours for trial.
As you can see, this is more work than your average bankruptcy filings, but not that much work in the grand scheme of things.
Other things may come up (additional motion practice, etc.) but the average case will not take more than ~ 30 hours of work over a six-month period even if you go all the way to trial (which 99% of the time you will not do). You can do this, and chances are your client can afford it (either in cash or on a payment plan) given the benefit you are about to provide them. Now local rules vary, and some of the terminology used here may be different, and other or different steps may be required. But this is the general blueprint for an undue hardship proceeding in seven easy steps.
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|Austin 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.|