A debtor files an undue hardship petition when unable to repay student loans. This is part of the bankruptcy proceedings but it requires a separate filing during the bankruptcy proceeding. Filed within the state of residence, an undue hardship petition is different dependent on the state in which filed. Here are the basics of requirements and descriptions of what it all means, generally.
Image Courtesy of bankruptcy lawyer via Flickr.
The undue hardship discharge in bankruptcy is a petition one must file to have all or part of one’s student loans forgiven without payment for those loans. An example of someone who may file for this petition is a person, disabled from an injury that has no way to repay the loans and still pay for basic needs.
One of the tools used by courts to decide if an undue hardship petition is acceptable is the Brunner test. The test is not entirely specific and it leaves plenty for the court to interpret, but here are the basic components:
Minimum standard of living not attainable
Defined as, a person is unable to support a minimum standard of living while making the payments. “Minimum”, interpreted by the court, is not specifically defined out in the test.
Extenuating circumstances exist
Extenuating circumstances refers to something that prohibits the person from making an adequate income for an extended period. An extended period can refer to a major part of the repayment schedule.
Made effort to repay
Additionally, the debtor tries to repay the debt and be able to prove this. There are many ways to prove this, such as showing that payments continued for a time before the extenuating circumstances existed. Another consideration to make before filing this petition is that future financial aid may not be available. When considering this petition be certain that it is your last resort.
A debtor should know that bankruptcy proceedings are not free and it is not an easy way out of debt. If a petition for undue hardship was not made during the first bankruptcy proceedings, the proceedings reopen with a filed petition. Remember, it is possible to file different types of petitions, in one case the entire loan is forgiven, in another a debtor, makes a partial payment.
When it comes to filing bankruptcy and undue hardship petitions, the laws can vary from state to state so it is important to find out the specifics for where you are filing. As stated, this should always be considered a matter of last resort since it will cost you money and it will be on your credit report for years to come.












