- Robert Weed
November Elections Might Help Bankruptcy Law and Your Student Loans
Democratic Platform Promises Good News on Bankruptcy and Student Loans
Are you struggling with student loans you can’t pay? The Democratic Platform promises to help.
The platform of the 2020 Democratic National Convention says this: Democrats will restore the prior standard in bankruptcy law to allow borrowers with student loans to be able to discharge their debts in bankruptcy as a measure of last resort.
What’s that “prior standard?” That probably means a bankruptcy discharge can discharge student loans that have been in payment status for several years. (The required payment status was five years beginning 1976; increased to seven years in 1990.)
And I hope it means that private student loans are just regular debt. Bankruptcy filed any time should discharge those. (That was the law on private student loans until 2005.)
So, if the Democrats have their way, if you are out of school, with no deferments, for seven years (maybe only five), then you can file bankruptcy to discharge your student loans.
What does this promise of future help mean to you now?
Should I Wait and See Election Results?
Suppose you have a credit card problem right now–and impossible student loans also hanging over you. If you file Chapter 7 bankruptcy today, you can’t file Chapter 7 again for eight years. So if there’s a new law, you’d have a very tough time taking advantage of it.
Can you hold on until after the election? November 3, 2020 is election day this year. That will decide if a Democrat is elected President. It will also decide if Democrats take control of the United States Senate. (It might hinge on a Georgia runoff January 5, 2021.) Democrats likely need control of the Senate to deliver on this student loan promise.
PS Didn’t get as much change as hoped in the election.
The November election did NOT bring as much change as people hoped in the US Senate. So the chances of getting a quick change is much lower. This article in the November 7, 2020, New York Times shows it nearly impossible to clear your student loans under current law. That’s not likely to get better any time soon.
Election day is November 3, 2020
After the Election, Expect More Delay
The new President and new Congress come into office next January. But I doubt they get started on bankruptcy law and student loans right away. The pandemic and economic crisis will keep them busy. My own guess: I’d expect to see changes in the bankruptcy law affecting student loans taking effect by July 2022. That’s more than a year and a half after the election.
Update: Student Loan Bankruptcy Relief May Happen by Summer 2021
A committee vote September 29, 2020 may signal quick action in the new Congress. The Judiciary committee voted to approve a student loan bankruptcy bill by a vote of 19-5. Now there are 41 members on the committee: 24 Democrats and 17 Republicans. So a lot of people weren’t there. But the lopsided vote may mean that the Republicans aren’t willing to oppose student loan bankruptcy relief, if they know it will pass anyway.
Congress is knocking off for the years shortly, so this won’t become law in 2020. But it might happen quicker than I expected in 2021.
Can’t Wait that Long? Consider Chapter 13
If you can’t handle, or outrun, your debts until summer of 2022, you can protect yourself with a Chapter 13.
A Chapter 13 bankruptcy is a payment plan through the bankruptcy court. You have to pay “all you can afford” for three years–or sometimes five years. “All you can afford” puts you on a tight budget; but not as tight as a garnishment for 25% of your after-tax pay. (If you have a security clearance, filing Chapter 13 can protect your clearance. Going late on your debts can put your clearance in jeopardy.)
Here’s a big advantage of Chapter 13: You can drop out of Chapter 13 at any time. You’d plan to drop out when a new law allows you to discharge your student loans in a Chapter 7. If the law doesn’t change, you’d likely want to see the Chapter 13 through to the end.
Are your credit cards out of control? Are you in danger of getting garnished now? Do you also have a student loan problem?
Maybe filing Chapter 13 now is a good plan. You can set up small payments on the debts now. And be able to take advantage of a new law on student loans when it’s available.
Now, bankruptcy is almost no help with impossible student loans.
Bankruptcy Law and Student Loans: When Student Loans Became Special
Student loans now are in a special category that bankruptcy law can hardly touch.
Under the old, 1898 Bankruptcy Act, student loan debt was just another debt. You could clear in in bankruptcy just like credit cards, loans, medical bills. Starting in 1976, clearing student loans got tougher and tougher.
In 1976, a new law said that student loans had to be in repayment status five five years, before they could be discharged. (Excerpt for undue hardship.) The current bankruptcy code was passed in 1978, kept that five years. In 1990, it was stretch out to seven years. In 1998, the seven years was gone. You could only clear student loans based on “undue hardship.” And undue hardship basically means paralyzed, never work again.
In 2005, private student loans received the same special status of government and charitable student loans. That’s where we are today.
During the presidential primary season, Sen. Elizabeth Warren called for the Federal government to just forgive them all. The Democratic platform doesn’t go nearly that far. Probably a Democratic majority in the Senate won’t do that either.
PS Final Draft is Stronger
The final draft of the platform was stronger. It has me hoping a Democratic majority could make student loans dischargeable in bankruptcy, without the five year, or seven year requirement.
PPS Nothing in the Republican Platform.
The 2020 Republican Platform said nothing about bankruptcy and student loans. Actually, because of the pandemic, they voted to have no platform at all.
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