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Seven Little Steps to Freedom: Analysis and the complaint

The Student Loan Analyzer is going to help you separate your client’s student debt into qualified education loans and non-qualified education loans. But a good rule of thumb is to look out for clients with very high levels of private education debt. If your client is not a medical doctor and has several hundred thousand dollars in private education loans, chances are much of that debt is not qualified and can be discharged without a showing of undue hardship.

 

Best Case has provided a number of templates to help you get started. If your client only has federal or qualified private debt, choose the “undue hardship” complaint. If your client has a mixture of federal, qualified-private, and non-qualified private, choose the appropriate complaint, and fill in your client’s specifics. File the complaint on the ECF system, and serve the appropriate parties (make sure if you are serving a national bank or other FDIC insured depository that you serve them via certified mail!).

 

Remember what you are doing here if your client has both qualified and non-qualified loans. You are alleging that some of your client’s debt is not excepted from discharge under section 523(a)(8) and the rest of it should be discharged because repayment would work an “undue hardship” on your client. Don’t confuse these two issues. The former is the creditor’s burden, and the latter is your burden.



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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.