how can I tell if a university loan is discharged?

[IOIOIO]

My university once promised me a grant in writing then took it back at the last minute as a mistake after I had already made financial commitments (lease, educational expenses, etc.) based on the promise. A lawyer told me this was a blatant breach of contract and the university ombudsman handled the case for me and got the university to offer me a 0% loan instead. Since I wasn't in a position to fight it any further, I accepted the loan, which they promised would be subject to the same deferment and forbearance conditions as a regular student loan.

After filing Ch. 7, I talked to a student loan officer who told me this was a private loan, not related to the government in any way, and she named the university fund the moneys were apportioned from. I forgot to list it in my original petition, although I included my federally guaranteed loans. So I amended my Ch. 7 filing to include this loan and indicated the name of the fund and that it was a private loan from the university. I have a boat load of regular student loans listed in my petition which I'm sure aren't discharged, but how can I tell for sure whether or not the judge discharged this one loan?

[lrprn]

I have a boat load of regular student loans listed in my petition which I'm sure aren't discharged, but how can I tell for sure whether or not the judge discharged this one loan?

Check PACER to make sure this loan was added to your bk. You should also be able to see its status now that you are discharged as well.

Is this loan considered considered secured or unsecured?

[justbroke]

I'm no expert but my simple (uneducated, pun intended) reading seems to suggest that it's still an "educational" loan because the discharge section of the Bankruptcy Code says, basically, that any educational loan is non-dischargeable.

Besides, you'd probably have to start an Adversarial Proceeding to have challenged its non-dischargeability. But that's just me talking.

11 USC 523
(a) A discharge under section 727, 1141, 1228 (a), 1228 (b), or 1328 (b) of this title does not discharge an individual debtor from any debt—

(8) unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents, for—

(A)

(i) an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or
(ii) an obligation to repay funds received as an educational benefit, scholarship, or stipend; or

(B) any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual;

I see a problem with that it's non-dischargeable if it's from a governmental unit or a non-profit organization. Thinking the school itself may be non-profit.

The other problem I see is with the any other education loan (under Sec 221(d)(1) of the IRS Code.

The IRS Code actually reads that...

The term ''qualified education loan'' means any indebtedness incurred by the taxpayer solely to pay qualified higher education expenses -

(A) which are incurred on behalf of the taxpayer, the taxpayer's spouse, or any dependent of the taxpayer as of the time the indebtedness was incurred,
(B) which are paid or incurred within a reasonable period of time before or after the indebtedness is incurred, and
(C) which are attributable to education furnished during a period during which the recipient was an eligible student.

[IOIOIO]

OK, I'll finally have to figure out how Pacer works. Certainly, this loan must be unsecured. From the rules collected here it appears this wouldn't be dischargeable, but I'd like to see the judge's ruling for myself.

By the way, is Pacer the only way to see the full results of your case? Does the court make the paperwork available via the clerks so that I could pick it up?

[justbroke]

OK, I'll finally have to figure out how Pacer works. Certainly, this loan must be unsecured. From the rules collected here it appears this wouldn't be dischargeable, but I'd like to see the judge's ruling for myself.

By the way, is Pacer the only way to see the full results of your case? Does the court make the paperwork available via the clerks so that I could pick it up?

PACER is free if you use the computers in the Clerk's office. HOWEVER, they charge $0.50 PER PAGE to print something!!!!!!!!!!

[AngelinaCat]

If you sign up for a PACER account and use it at home, viewing each page costs $.08 a page. That doesn't sound like a lot, but it can add up in a hurry. One poster had used PACER so much prior to filing, that she actually listed it as a creditor!

If you decide to use PACER at home, view each file ONCE and save a copy to your hard drive--with a good descriptive name--so that you can view it more than once.

[HHM]

That's and easy answer, the University loans are not discharged. By analogy, if a student does not pay tutiution and the unversity has the student sign a promissory note for that past due tuition (so the student can enroll in next semester), the courts consider that a non-dischargeable loan, so what chance do you think your loan has. Bottom line, the "educational purpose" clause of the discharge exception makes pretty much any type of money loaned to you (public, private, government, non-goverment) for school is a non-dischargeable debt.

No one creates a list and tells you which loans are discharged an which are not. In the case of any type of student loan, the burden is on the debtor to file an adversary proceeding requesting the judge to make that determination.

[IOIOIO]

By analogy, if a student does not pay tutiution and the unversity has the student sign a promissory note for that past due tuition (so the student can enroll in next semester), the courts consider that a non-dischargeable loan, so what chance do you think your loan has.

I didn't know that. If outstanding tuition isn't dischargeable, I certainly see your point about my loan. Do you know of any sources that specifically discuss the issue of outstanding tuition?

No one creates a list and tells you which loans are discharged an which are not.

I didn't know that either. So it sounds like perusing my case via PACER wouldn't be much more than a costly entertainment, now that I'm officially discharged. Are all my (former) debts in the same situation? I.e. any creditor can claim I still owe them and then it's up to me to file an adversary proceeding and deliver to them the judge's determination? I realize that, with my discharge a matter of public record and each creditor duly notified, no creditor is likely to waste their time and money pursuing something they know they have no right to. It's a legal theoretical question, I guess, but could be relevant if I forgot to list a creditor.

[HHM]

This is the challenge with pro se filers (no offense), basically discharge works like this...

Your debt is discharged if it does not fall into any of the exceptions to discharge (section 523 of the BK code).

In some circumstances, the burden is on the creditor to demonstrate that their debt should not be discharged (i.e. fraud), in other cases, the burden is on the debtor to prove a certain debt CAN BE discharged (e.g. Student loans). Thus, with your run of the mill credit cards, they are discharged unless they object. But debts like student loans are NOT discharge unless YOU object.

The court does not itemize your debts and list which debts are and are not discharged, so yes, going on pacer is a waste of time.

As for the Tuition issue, the rule is, back tuition becomes non-dischargeable ONLY IF the back tuition was converted into a promissory note. I do not have the case cite handy, but it has been mentioned on this forum. Unfortunately, you cannot rely on the customer service rep at the loan servicing agency (they are dumb as posts). Just because the lender may write off the balance, that does not mean the debt was legally discharged in your BK. Bottom line, unless you filed an adversary proceeding before you case was discharged asking the court to make a determination regarding the dischargeability of your student loans, those loans ARE NOT discharged.

[justbroke]

HHM summarized well what I wrote above. You have to understand just what is dischargeable to start with.

The only way you could have challenged the dischargeability of that loan, was to file an adversarial proceeding, which a pro se debtor probably shouldn't even attempt... because it's a mini lawsuit within the BK process.

Even I, as a rather successful pro se filer, wouldn't want to get involved in any AP. There are many more rules that come into play there around Federal Rules of Civil Procedure which is how most pro se filers fail when in an AP -- regardless of whether they are plaintiff or defendant/responder.

As I wrote above, that debt is non-dischargeable unless you had initiated such a fight (AP).

[IOIOIO]

That's another thing I didn't know: that the adversarial proceeding has to be taken care of before the discharge. Since the discharged debts aren't itemized I'd imagine there must be ambiguous cases where the parties require a more elaborate ruling after the discharge. But right, I'm pro se because my situation is uncomplicated so I wouldn't handle my own suit outside of small claims court. I amended my filing because I forgot to list the loan in the first place, so hoping to discharge that debt was just an afterthought anyway. It's just that they were jerks for coercing me into taking a loan instead of the promised grant to cover for their mistake so it would have been just to erase that debt.

[justbroke]

That's another thing I didn't know: that the adversarial proceeding has to be taken care of before the discharge. Since the discharged debts aren't itemized I'd imagine there must be ambiguous cases where the parties require a more elaborate ruling after the discharge. But right, I'm pro se because my situation is uncomplicated so I wouldn't handle my own suit outside of small claims court. I amended my filing because I forgot to list the loan in the first place, so hoping to discharge that debt was just an afterthought anyway. It's just that they were jerks for coercing me into taking a loan instead of the promised grant to cover for their mistake so it would have been just to erase that debt.

This is why pro se filers get in trouble. There are two important principles in bankruptcy (litigation)... a bar date and res judicata.

Bascially, certain things must be brought up before other things are finalized. For example, in a Chapter 13, a creditor, trustee, or debtor, must bring up any dischargeability issues prior to confirmation because plan confirmation is considered a finality when it comes to all things that could be considered prior to confirmation. As another example, you can't bring up objections to claims after that, nor can creditor bring submit new claims, after the bar date and/or confirmation.

Likewise, starting an Adversarial Proceeding (AP) after discharge and close... to determine dischargeability... is too little too late -- to coin a phrase.

Anything regarding dischargeability has to be addressed (by motion or complaint), before discharge in a Chapter 7, and before the dischargeability bar date or confirmation (whichever comes first) in a Chapter 13.

[IOIOIO]

Anything regarding dischargeability has to be addressed (by motion or complaint), before discharge in a Chapter 7, and before the dischargeability bar date or confirmation (whichever comes first) in a Chapter 13.

Yeah, but what if creditor and debtor both stand pat believing they understand the rules, but their understandings conflict? For example, after the discharge a creditor pursues a debt claiming his is one of the kinds of debt that can't be discharged but the debtor claims that this was one of the kinds of debts that were discharged. The creditor claims that the debtor had the chance to prove dischargability but did not; the debtor claims that the creditor had the chance to object and did not. Since the bankruptcy judge doesn't itemize what's discharged there's room for ambiguity as to what the discharged actually discharged. If the debtor doesn't pay up, the creditor can at least be heard in court even after the discharge, right? And a judge would then have to rule on whether or not that item was discharged, i.e., on the dischargability of that item, right?

[HHM]

You are over thinking this IOIO, your only complication is your student loans. For regular debts, everyone knows where they stand.

[justbroke]

What HHM wrote. You are way overthinking this. Simply stated... if you ever had a question about dischargeability -- based on the Bankruptcy laws -- then you should have addressed it during the case.

Even if you re-opened the case to determine dischargeability, the motion would be denied... plain and simple. It's too late at that point.

And as HHM writes, this is only for non-dischargeable debt which is quite clearly defined in 11 USC 523, the seciton of the BK laws which says what is not dischargeable.

Student loans, IRS taxes, fines (hey HHM!!!) and some other categories of debt are always questionable on dischargeability. At first outset, they just are not dischargeable. You can only file a complaint (or motion) to determine their dischargeability... if you want to discharge them. You also need to do this while the case is open and no bar dates have passed.