If your client refuses all settlement offers, you’re going to need to try this case. Don’t panic! Remember that 47% of undue hardship trials result in a total or partial discharge of debt. This is not, frankly, all that difficult to win (if you have decent facts). If you live under a “Brunner” regime, your presentation will consist of three elements. First, that your client cannot afford monthly payments (proven by your client’s monthly budget, and monthly income). Second, that your client’s financial circumstances are not likely getting better in the near future (likely based on oral testimony from your client). Third, that your client has made good faith efforts to repay the debt (proven by your client’s payment history). If you live under the “Totality of Circumstances” regime, your presentation will mostly be the same, but your burden is slightly reduced, and you needn’t prove that your client has made a good faith effort to repay (but if they have, by all means, show that to the court!).
That’s it. Then you wait for the opinion of the court. Rinse and repeat.
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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.|