Articles Posted in Chapter 13

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student loan bankruptcyIf the debt from your student loans is overwhelming you, you’re not alone. According to the Institute for College Access & Success, an independent non-profit organization, 68% of students who graduated from both private and public colleges in 2015 had student loan debt. The debt average had risen 4% since 2014 to a whopping $30,100 per borrower in 2015.

While it can be challenging, it is not impossible to have student loan debt discharged in bankruptcy. In order for your student loan to be discharged, you must be able to prove that it is causing undue hardship. Courts use certain tests to make this determination. The most common is called the Brunner Test, in which courts will look for you to meet the following three criteria:

  1. You are unable to maintain a minimal standard of living for you and your dependents if you are required to continue paying your student loans.
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When you fhow to stop creditors from callingace the unfortunate situation of falling behind on your credit card, mortgage, auto loan or other bills, you may also find you’ve become the victim of debt collection harassment. The goal of this type of harassment is to annoy, intimidate or bully a consumer into paying off a debt.

Debt collection harassment can come in different forms—email, direct mail or texts—but it is most often done by constant, repetitive phone calls. These phone calls are often designed to annoy and belittle not only the person who holds the debt, but also whoever happens to answer the phone. At worst they may contain profane language and threats. They might even contact your friends and neighbors about your debt, seeking to humiliate you.

Fortunately, you have rights. While debt collection agencies are legally permitted to collect the debt that is owed to a creditor, they are not legally permitted to use abusive tactics to collect this debt from you. The Federal Trade Commission, the nation’s consumer protection agency, enforces something called the Fair Debt Collection Practices Act. This act prohibits debt collectors from using abusive, unreasonable and/or deceptive practices to collect a debt.

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Often times, Debtors are involved in accidents where personal property is totaled or unsalvageable. Many times these accidents occur while a bankruptcy is pending and the Debtor still owes a secured lender for the property. I must note the strategy detailed below is really only relevant to Chapter 13 and Chapter 11 cases. What is substitution of collateral? What the Debtor is generally looking to do is use the insurance proceeds from the accident, apply them to new property, and essentially substitute the newly acquired property as the former secured lender’s collateral.

You may be asking, what benefit is there to doing this? Well, it may allow a Debtor to purchase a new vehicle outright without new financing terms. It’s likely the Debtor will benefit from not having to pay off a secured creditor in full and worry about being able to afford a new vehicle. If the insurance proceeds are less than what is owed on the vehicle, this strategy will not work. You see this scenario most often with work vehicles. However, the issue is also very common in Chapter 11 business cases where business equipment is damaged and needs to be replaced.

Unfortunately, the strategy does not always work smoothly and the creditor may resist the motion to substitute collateral. The good creditor attorneys, who understand the law, will not object. Generally, the insurance adjuster will not release the insurance proceeds without the title being surrendered by the secured lender. This may put the Debtor in an even tougher situation financially especially if the Debtor is relying on a new piece of property for work purposes. Most Debtors cannot afford to wait months for the litigation to get resolved. Arguably, a creditor’s failure to release the title to the insurance company is a violation of the automatic stay (assuming no stay relief has been ordered).

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