A small opening in the legal barrier to discharging student loans in bankruptcy has appeared in a case called Roth.

To discharge a student loan in bankruptcy, the borrower must show that repayment of the loan would cause he and his dependents undue hardship.

The test for what constitutes “undue hardship”  is many circuits the Brunner test:

• repaying the student loan would keep the borrower from a minimal standard of living
• the conditions that prevent repayment are likely to continue for the foreseeable future
• the borrow has made a good faith effort to repay the loan

In short, the bar is very high and as a result, student loans, no matter how burdensome or unwise, usually survive a bankruptcy discharge.

Many bankruptcy judges, confronted with very sad and hopeless situations involving student loans, have regretfully  declared themselves bound by the 25 year old test crafted in Brunner.

Roth opens the door

Along comes the Roth decision of the 9th Circuit Bankruptcy Appellate Panel.  The good news is that the appeals panel overturned the decision of the trial court and permitted the discharge of  Ms. Roth’s student loans.

The better news is found in Chief Judge Jim Pappas’ concurrence, which roundly calls for the 9th Circuit to revisit and revise the Brunner test.

the analysis required by Pena/Brunner to determine the existence of an undue hardship is
too narrow, no longer reflects reality, and should be revised by the Ninth Circuit when it has the opportunity to do so. Put simply, in this era, bankruptcy courts should be free to consider the totality of a debtor’s circumstances in deciding whether a discharge of student loan debt for undue hardship is warranted.

Pappas contrasts the changes in the law governing the  dischargeability of student loans since Brunner was written.

When  Brunner was decided, a student loan could be discharged with no more showing than that it had been in pay status for five years.  Alternatively, the borrower could show that repayment would cause undue hardship.

Quite a different world from today, when student loans of whatever age are dischargeable only on a showing of undue hardship, using a test crafted for another time and another legal circumstance.

We can hope that Pappas’s analysis of the [dis]utility of the old test in a new world will prod other judges, and more importantly, other circuits, to revisit and revise Brunner.

The stakes are huge.

Image credit:  © Ilona Baha – Fotolia.com

Despite BAPCPA, the 2005 “reform” that made bankruptcy more complex and more expensive,  consumer bankruptcy is working fairly well in Northern California.

The bar has learned to navigate the new law, shuffle the additional forms and avoid the events of “automatic dismissal”.

We only  need one little change to the law to make relief from the consequences of the Great Recession available to a hunk of the Silicon Valley middle class now excluded.  We need an increase in the Chapter 13 debt ceilings.

Only Chapter 13 of the available chapters  limits who can file a bankruptcy case by the size and composition of their debt.  Adjusted tri-annually, today a Chapter 13 filer’s secured debt cannot exceed $1,081,400 and unsecured debt of $360,475.

You might ask how could a limit of $360,475 not cover most people’s unsecured debts, which are usually credit cards, personal loans, and medical bills?  Because the home equity loans that are now underwater are counted as unsecured, despite the fact that there is a lien on the debtor’s home, are added to the unsecured debt total.

Shrunken home values have left a large swath of Silicon Valley homeowners with HELOC’s no longer secured by equity.  When the HELOC balance is added to the usual array of credit cards and student loans, it’s not hard to run over the $360,475 limit.

Chapter 13 has features unique among the chapters of bankruptcy that make it important for families trying to reorganize their finances.  In Chapter 13, you can cure mortage arrears, catch up on taxes or family support, and most importantly these days, strip off mortgage liens that aren’t attached to actual value in collateral.

I would argue that the debt limits in Chapter 13 are no longer meaningful at all and ought to be doubled or tripled to cover a wider group of consumers.  Before BAPCPA, Chapter 13 had some very special and more advantageous provisions, sometimes called the super discharge.  Chapter 13 was seen as a privilege and because creditors have less influence in Chapter 13 than they do in Chapter 11, the other reorganization chapter, debt limits struck a balance between the rights of debtors and creditors.

With “reform”, Chapter 13 has become the presumptive norm. The means test is designed to push people from Chapter 7 to Chapter 13.  The super discharge was largely gutted by BAPCPA.

There seems little reason to choke off entry to Chapter 13, unless of course the unspoken intent of the Congress is that the middle class should soldier on, swamped by debt it can never repay because “people should pay their debts.”

There are work arounds for families who are not eligible at the outset for Chapter 13, including single spouse filings and Chapter 20 (a 7 followed by a 13).   But they are more expensive and inefficient than raising the debt limits for Chapter 13.

Ruling against the California Franchise Tax Board, the 9th Circuit upheld Oakland bankruptcy judge Edward Jellen’s decision in the Chapter 13 case of Brenda Marie Jones.

At issue was whether Jones could discharge a state tax debt in her Chapter 7 case; the question turned on an arcane question of what the Bankruptcy Code means when it provides that property “vest” in the debtor at plan confirmation.

If the automatic stay continued in effect after confirmation in Ms. Jones’ prior Chapter 13 bankruptcy, the FTB’s claim in her subsequent case was protected from discharge. If, however, vesting terminated the protection for her property provided by bankruptcy law, sufficient time had run to make the tax claim dischargeable.

The Court of Appeals noted that there are four different legal theories about what it means for property to “vest” in a Chapter 13 case. While declining to decide directly which of those four approaches was correct, the 9th Circuit panel held that some property of the estate vested in the debtor at confirmation and therefore the clock started ticking on the FTB’s window for collecting the tax. That window closed before Ms. Jones filed her new Chapter 7, and the tax was thus old enough to be eliminated in bankruptcy.

I’ve been following and speaking on this issue of vesting for a couple of years. I had hopes that this circuit would choose sides and provide some guidance to bankruptcy practitioners. It’s frustrating that presented with an opportunity to affirm the Bankruptcy Appellate Panel’s analysis that the estate terminates at vesting, the circuit court ducked. But their decision came to the same place the BAP was: a post petition creditor is free to collect its claim against the debtor following the vesting of the property of the estate at confirmation of a Chapter 13 plan.