Participate in this week's discussion regarding a Bankruptcy Law scenario that many of you make have heard about. Post at least 4 quality comments, and post your first comment by Wednesday of the week.

THIS WEEK'S DISCUSSION WILL BE HOSTED BY:Damilola Fawi & C. Fitzpatrick

Each of you has probably been affected, either directly or indirectly through your friendship with others, by student loan debt. As you know, student loan debt can accumulate very quickly and is often ignored until after the degrees for which the loans creating the debt are taken are completed.

But, then reality hits. Sometimes, student loan debt becomes almost insurmountable as graduates have difficulty paying living expenses and their indebtedness while earning only entry level salaries. Faced with what may seem like a futile effort to repay their student loans, many attempt to discharge student loan debt by filing for bankruptcy protection.

However, the federal bankruptcy statute itself, and the case law applicable to discharging student loan debt, has made it very difficult to discharge it by filing for bankruptcy.

11 U.S.C. 523.pdf

specifically addresses student loan debt and provides for a discharge only if the petitioner can show that not being allowed to discharge the debt in bankruptcy would cause "undue hardship on the debtor and the debtor's dependents."

Procedurally, one attempts to show "undue hardship" under Subsection 8 of Section 523 by filing a proceeding in a federal bankruptcy court. Decisions of the bankruptcy court may be appealed to a Federal District Court, and Federal District Court decisions may be appealed to a Federal Circuit Court. From there, one may petition the US Supreme Court to hear an appeal from a decision of a Federal Circuit Court in a bankruptcy case. To date, however, the Supreme Court has refused to render a decision on what constitutes "undue hardship" under Section 523 of the Bankruptcy Code.

Most US Circuits (recall from Chapter Two that there are 13 Federal Circuit Courts that span the USA--we in New York are located in the Second Circuit) follow what is known as the "Brunner Test" in deciding whether someone has met Section 523(8)'s test of "undue hardship." However, a minority of federal circuit courts follow the "Long Test" established by the Eighth Circuit inLong v. Educational Credit Management Corp., 322 F2d 549 (8th Cir. 2003).

After reviewing the text of Section 523(8) linked to above, review the text of theBrunner decision that was decided by the Second Circuit Court of Appeals. A link to the case appears here:Brunner v. NY Higher Educ. Servs Corp. 831 F.2d 395.pdf.

The Second Circuit's decision is brief.

Also review the student articleStudent Loans can be Discharged (at Least Partially) in Bankruptcy After All | ABI.pdf.

The article describes a different and more flexible test for establishing "undue hardship." That test was established in theLong case referred to above (a link to the case appears at the end of this post).

Brunner has been criticized as being too inflexible. In fact, as you will see from reading the linked articleABI Journal Article.Student Loan Discharge Decisions Poke Holes in the Brunner Test.. By J. Jackson Waste and Michael J. Fletcher.pdfthe courts seem to be moving away from theBrunner test.

After reviewing each of the linked materials, explain which test you think should be applied in the case of someone seeking to discharge student loan debt by filing for bankruptcy relief. Defend your position by explaining the reasons why you believe the interests of justice will be better served by the test you have chosen. Point out the flaws in the test NOT chosen.

Secondly, apart from the student loan example, explain WHY you agree or disagree that debtors should be allowed to discharge their debts in a bankruptcy proceeding. Is the bankruptcy mechanism for discharging debt fair to creditors?