The Standard for Holding a Creditor in Civil Contempt for Violating a Discharge Order is an Objective One
By: Alexander C. Koban
St. John’s University School of Law
American Bankruptcy Institute Law Review Staff Member
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Student Loan Repayment: When Does Accrued Interest Create an Undue Hardship?
By: Lindsey A. Haynes
St John’s University School of Law
American Bankruptcy Institute Law Review Staff Member
The Fifth Circuit’s Approach: Student Loan Discharge Requires both Sympathetic and Unsympathetic Debtors to Meet the Undue Hardship Burden
By: Emily N. Gault
St. John’s University School of Law
American Bankruptcy Institute Law Review Staff Member
Debtor Must Minimize Expenses and Maximize Income to Pass First Prong of Brunner Test
By: Samantha Alfano
St. John’s University School of Law
American Bankruptcy Institute Law Review Staff Member
Excessive Pre- and Post-Petition Gambling: A Factor in Determining Abuse That Can Result in Dismissal Of A Chapter 7 Case
By: Angela Bonica
St. John’s Law Student
American Bankruptcy Institute Law Review Staff
Ipso Facto Contract Provision Not Enforced
By: Kayla Martin
St. John’s Law Student
American Bankruptcy Institute Law Review Staff
Purchasers of Debt found not “Debt Collectors” under the FDCPA
By: Antonia Edwards
St. John’s Law Student
American Bankruptcy Institute Law Review Staff
Non-Dischargeability of Foreign Student Loans
By: Andrew Brown
St. John’s Law Student
American Bankruptcy Institute Law Review Staffer
Educational loans made, insured, or guaranteed by a governmental unit are not dischargeable in a chapter 7 bankruptcy case, unless the debtor obtains a hardship determination.[1] Thus, it is very difficult to discharge student loans through a bankruptcy case. This is true even if the loan is made, insured, or guaranteed by a foreign governmental unit. In the case of In re Mulley, the Bankruptcy Court for the Central District of California determined that government guaranteed student loans, made pursuant to the Canada Student Loans Act (“CSLA"), were non-dischargeable under the United States Bankruptcy Code.[2]
The Eighth Circuit’s Leniency on Discharging Student Loan Debt
By: Maria Casamassa
St. John’s Law Student
American Bankruptcy Institute Law Review Staff
Under the Bankruptcy Code, a discharge of student loan debt is not justified “unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor's dependents . . . .”[1] A finding of undue hardship is difficult to establish; accordingly, student loan debt is rarely discharged.[2] However, in In re Fern,[3] the United States Bankruptcy Court for the Northern District of Iowa applied the totality of the circumstances test and held that the debtor presented sufficient evidence demonstrating that excepting her student loans from discharge would impose an undue hardship on her and her family and, therefore, the debt was dischargeable.[4]
A Debtor May Not Necessarily Have His Chapter 7 Case Dismissed
By: Shane Walsh
St. John’s Law Student
American Bankruptcy Institute Law Review
A person who files for bankruptcy may not simply change his mind and have his bankruptcy case dismissed. In In re Segal , the bankruptcy court denied a debtor’s request to dismiss his voluntary chapter 7 case because the debtor acted in bad faith, dismissal would prejudice his creditors, and the debtor would be unable to “secure a fresh start outside of bankruptcy.”[1] In this instance, the debtor filed a chapter 7 petition to avoid the imminent foreclosure sale of his apartment.[2] Four months after the chapter 7 petition was filed, the debtor filed a motion to dismiss arguing that the lack of his signature on the original petition was a “fatal defect to the filing.”[3] The court, however, denied the request, finding that the debtor filed the motion to dismiss after obtaining the benefit of the automatic stay to the detriment of his creditors.[4]