Ch 13 after Ch 7 Discharge?

[Krys]

Our CH7 was discharged about 4 months ago.
We did not include our student loans. We've never had the income to pay on them, and
we exhausted our forbearances. SO they defaulted. Not ever being able to pay
on them was the reason we didn't include them in CH 7. That's one of the
stipulations (have made good faith payments).

So, my loans fell under the guidelines for the Income Based Repayment plan. So I'm covered.
My husbands lender doesn't participate, apparently. They have garnished his wages, but we're
REALLY struggling without that money.

Anyway, can he file Ch13 for his student loans now?
I truly wish we could pay on them, and hopefully if/when our income
changes, we will. But for now we can't continue on this path.

[Nursemikki]

Ch 13 won't erase your hubby's student loans. Currently my Ch 13 includes back taxes, my reaffirmed vehicle, a couple of small credit card balances, and student loans. As my payback percentage is 11%, the IRS is a priority payment and Sallie Mae is only getting 11% during my 60 MONTH bankruptcy, so once my case has been discharged I will still have that balance to take care of.

[Pjmax]

I found this article on student loan forgiveness, BK discharge. I don't know if this will help, but it's good info. I understand it's very rare to get a hardship discharge for SL's, but if things are really that bad for you, it's worth looking into.

http://studentaid.ed.gov/repay-loans...n#discharge-in

[despritfreya]

If you file a 13 now, since there is no discharge therefore no ability to seek a “hardship discharge”, all you would be doing is delaying collection for the length of the Plan and paying what you can afford to pay over that time. If you believe you "qualify" for a full or partial hardship discharge under 11 USC 523(a)(8) you should file a Complaint in the Chapter 7. If you do not "qualify" then, IMO, you would be better served to try to work out payments directly with the lender. Filing the 13 should be a choice of absolute last resort.

Des.

[Krys]

I'm sorry, let me clarify.

I'm not seeking discharge of the student loans.
I simply want to file CH 13 so the court can fairly decide my payments. The student loan company
will not work with me, and I can't afford to give them what they want. It's a vicious cycle. In order
to get out of default, I have to make 120 payments, but can't afford the payments.

I simply want to file CH 13 so I can get them OFF my case and start paying them back with a
payment that fits my income (which is under $20,000 for a family of 4).

But I don't know if they allow you to file CH 13 after filing CH 7.

Thanks!

[AngelinaCat]

Yes, you can file a CH13 in order to regulate the payments of the student loans. There may be a certain number of months you must wait between the discharge of the CH7 and the filing of the Ch13.

There have been several of our Forum members what have done so for a variety of reasons. A poster using the name Southernbelle, did so because of IRS pressures. She had previously filed a CH7 because of debt caused by a deadbeat ex and a failed business.

[despritfreya]

The problem with what you want to do is that all you will do is delay collections for the time you are in the 13. Maybe that will help you, maybe not. During that 5 years you pay what you can afford to pay to the Trustee based upon your budget (Schedule I and J). Theoretically, if your income goes up so does your payment.

If you are trying to get the bk court to force the lender to modify the terms of your payments for anything longer than the time you are in the 13, forget it.

In addition, if the only creditors you have are the 2 student loans and, therefore, dealing with them is the only reason you file the 13 you could face a Motion to Dismiss as a bad faith filing. You have what is basically a "2 party dispute". Using the bk to stop collection of a non-dischargeable debt in a 2 party dispute is frowned upon unless your intent is to pay the loans in full over the five years.

You need to meet with a bk attny to discuss the viability of doing what you are thinking about.

Des.