Question Who is responsible for filing AP?

[adr]

I hired an attorney for my Chapter 7. My assumption was that the attorney would act in my best interest and file an AP for my $6k debt in Student Loans. However, the 60 day window closed and he never filed an AP. Is this my responsibility or the attorneys?

[justbroke]

No. An adversary proceeding (AP) is an entirely different piece. Neither a Chapter 7 nor Chapter 13 attorney simply file one because a debtor had student loans. Especially given that you are talking about only $6K, it would be senseless to file an AP for that (with the average AP requiring at least a $4-5K retainer up front).

The cost of such an AP is now probably lower than it was prior to November of 2022. In late November, the DOJ and DOE decided to try to streamline the educational debt discharge process. That process is all new and I don't know if it was in place when you filed. So there's that.

Additionally, just because they have put things in place to reduce the amount of evidence required to demonstrate that a debtor would never be able to payoff the debt, the debtor still must prove that. That's difficult for $6K. If the government gave you 30 years to payoff $6K at 5%, that's only $47.00/month. Even under the IDR, and you make $2,000/month with $500 in "disposable" income, that payment would be $50/month. It's just difficult to call that a hardship unless you are disabled. Now talk about someone from Harvard with $600K in loans... the issue becomes more clear.

Those are just my thoughts. You could ask your attorney to re-open, but you'd have to pay your attorney. APs are not covered under the "no look" fee of filing your Chapter 7.

[adr]

No. An adversary proceeding (AP) is an entirely different piece. Neither a Chapter 7 nor Chapter 13 attorney simply file one because a debtor had student loans. Especially given that you are talking about only $6K, it would be senseless to file an AP for that (with the average AP requiring at least a $4-5K retainer up front).

The cost of such an AP is now probably lower than it was prior to November of 2022. In late November, the DOJ and DOE decided to try to streamline the educational debt discharge process. that's all new and I don't know if was even in place when you filed. So there's that.

Additionally, just because they have put things in place to reduce the amount of evidence required to demonstrate that a debtor would never be able to payoff the debt, the debtor still must prove that. That's difficult for $6K. If the government gave you 30 years to payoff $6K at 5%, that's only $47.00/month. Even under the IDR and you make $2,000/month with $500 in "disposable" income, that payment would be $50/month. It's just difficult to call that a hardship unless you are disabled. Now talk about someone from Harvard with $600K in loans... the issue becomes more clear.

Those are just my thoughts. You could ask your attorney to re-open, but you'd have to pay your attorney. APs are not covered under the "no look" fee of filing your Chapter 7.

I understand then, much appreciated, definitely not worth the time or effort. I was just thinking that, hey, since I have a bankruptcy case open, might as well take a stab at the student loans, but your right, they could probably be paid off with the attorney fees plus the retainer.

[justbroke]

It's a good question and it could have been one answered by your attorney while the case was still open. I do not know how the new rules work, but I gander from the United States Trustee's website that the proof of inability to pay still requires proof. I'm sure they -- the federal government -- didn't intent to open the floodgates and have nearly anyone file for the hardship discharge. Shoot... might make me want to refile!