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Bankruptcy Relief may be on the Horizon for Private Student Loans

Updated: Aug 17, 2023

A legislative proposal is finally pending with Congress as a first step to help ease the student loan crisis. Sponsored by Sen. Durbin of Illinois in conjunction with Sen. Franken of Minnesota, the Fairness for Struggling Students Act was proposed in March 2015 to remove the Bankruptcy Code’s exception from discharge of private student loans. Short and simple and to the point, the full text of the bill can be read here.

Private student loans account for as much as 20% of the total $1 trillion student debt load in the U.S. And just as with the more common federally subsidized loans, currently there is no relief in bankruptcy for private student loan principal or interest. For borrowers in default, the effect of reversely amortized interest on private student loans can quickly multiply the balance in only a few years.

According to the U.S. Department of Education, between 13% and 15% of all student loans are in default. This is almost triple the low default rates of the early 2000s. And with student loan borrowing on the rise and income rates not keeping pace with inflation, the default rate can only be expected to increase. Unlike other unsecured debts, student loans currently are almost never discharged in bankruptcy except in very rare circumstances of total and permanent inability of the borrower to repay.

While federal student loans are subsidized by the federal government–common examples are Direct Loans, Parents PLUS Loans and Perkins Loans–private student loans are funded by banks, credit unions and other private lenders or even the school itself.  Because private loans are not guaranteed by the government, these loans typically carry higher and variable interest rates, may require repayment during enrollment, often demand a certain credit rating and cosigner, and are not eligible for consolidation or loan forgiveness programs for public servants. To say the least, private student loans have similar repayment conditions as credit cards (noting that credit card companies factor the possibility of bankruptcy into the high interest rates charged), yet private student loans have none of the relief options in bankruptcy that one has for their credit card debt.

Prior to October of 2005, it was possible to discharge private student loan debts in chapter 7 and chapter 13 bankruptcies while federal student loans have historically remained non dischargeable. However with the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), essentially every type of student loan–both public/federal and private– cannot be discharged in bankruptcy.

If passed, the Fairness for Struggling for Students Act will effectively reverse the 2005 changes to the Bankruptcy Code and once again make private student loans dischargeable in a bankruptcy proceeding. Under the Act, private student loans would be treated the same as credit cards, i.e., bankruptcy would discharge private student loan debts same along with most other general unsecured debts such as credit cards and other unsecured loans.

Be sure to read more about student loans and relief options at the Wartchow Law’s Student Loan Blog.

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