Tuesday, October 26, 2021
Oct. 26, 2021

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Weston: Addressing student loan debt


Earlier this year, a judge excused a Navy veteran from having to pay $221,000 in education debt. Bankruptcy judge Cecelia G. Morris’ decision garnered plenty of headlines, along with speculation that the ruling might make such discharges easier.

The battle isn’t over, though. A few days later, Morris’ ruling was appealed by the Education Credit Management Corporation, a nonprofit company that guarantees and services federal student loans for the U.S. Department of Education.

The reality is that getting student loans erased in bankruptcy, while technically possible, is so hard and expensive that few people try; even fewer succeed. Without intervention by Congress and a change of heart at the Education Department, struggling borrowers will continue to be trapped in a virtual debtor’s prison.

Taxpayer money is being wasted, as well. ECMC has a long history of aggressively opposing student loan discharges, even when there’s little hope of recovering any money. Among other cases, ECMC has notoriously fought bankruptcy relief for a woman diagnosed with pancreatic cancer, and, in the case of Navy vet Kevin Rosenberg, the subject of Morris’ ruling, a man whose basic living expenses exceeded his income.

The American Bankruptcy Institute’s Commission on Consumer Bankruptcy suggested changes judges could make to help more borrowers, but real reform will require new laws and a more sensible, cost-effective approach by the Education Department.

Among the commission’s recommendations:


Federal student loans are backed by taxpayer money, so it makes sense that they’re harder to discharge than credit card debt or medical bills. But Congress extended the same status to private student loans in 2005. Unlike federal student loans, private student loans are underwritten — which means the lenders assess borrowers’ ability to repay, charge interest rates that reflect the risk of default and often require co-signers to guarantee repayment. Shielding private student loans in bankruptcy court may protect lender profits, but it’s hard to make the case that doing so is somehow in the taxpayers’ best interest. The commission recommends Congress change the law to allow private student loans, as well as loans taken out by parents and other relatives for their children, to be more easily erased.


In 1976, Congress decided that overwhelmed borrowers could get their student loans wiped out in bankruptcy once five years had passed since the first payment was due. Debtors could get relief earlier if repayment represented an “undue hardship.” In 1990, Congress lengthened the waiting period to seven years. In 1998, however, Congress removed the time element entirely. Now borrowers are held to the strict standards the courts had developed under previous laws.

The commission recommends returning to the seven-year standard, noting that if borrowers were still struggling at that point, their circumstances were unlikely to improve enough to repay a significant portion of their loans. Getting rid of the debt, on the other hand, could allow people to buy homes, start families, launch businesses and otherwise engage in productive activity that contributes to the tax base.


The commission decried “costly and inefficient litigation,” noting that the Education Department and ECMC regularly fight discharges regardless of the costs or benefits.

Instead, the commission recommended the department adopt clearly defined rules that would prevent student loan collectors from opposing discharges for people collecting disability benefits from Social Security or Veterans Affairs, or whose incomes were less than 175 percent of federal poverty levels.