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Filing for bankruptcy does not, by itself, discharge your student loans. Unlike credit card or medical debt, which is typically wiped out automatically, student loans require you to affirmatively ask the court to discharge them by filing a separate lawsuit inside your bankruptcy case. That lawsuit is called an adversary proceeding. Here is how it generally unfolds.
Step 1: File or Be in Bankruptcy
An adversary proceeding to discharge student loans happens within an underlying bankruptcy case — usually a Chapter 7 or Chapter 13. You must have filed for bankruptcy, or be filing, before you can bring the proceeding. Under FRBP 4007(b), a request to determine the dischargeability of a student loan may be filed at any time, so it is not limited to the early deadline that applies to some other dischargeability disputes.
Step 2: File the Complaint
You (the plaintiff) file a complaint in the bankruptcy court naming the loan holder as the defendant. For federal loans, that means the U.S. Department of Education (and any servicer or guaranty agency involved). The complaint asks the court to find that excepting the loans from discharge would impose an undue hardship under 11 U.S.C. §523(a)(8). There is no separate filing fee for an adversary proceeding seeking to determine the dischargeability of a student loan (FRBP 4007(b)).
Step 3: Complete the Attestation Form
For federal loans, the November 17, 2022 DOJ and Department of Education process (justice.gov) is used here. The borrower completes a sworn attestation form disclosing household income, assets, expenses, and circumstances affecting the ability to repay. The current form is published by the DOJ at justice.gov/d9/2024-05/StudentLoanAttestationFillableForm.pdf. Government attorneys review the attestation against standardized criteria to determine whether the undue-hardship standard is met.
Step 4: Government Review and Recommendation
Rather than automatically contesting the case, government attorneys evaluate the attestation and supporting information. Where the criteria are satisfied, they can stipulate to or recommend a full or partial discharge. This cooperative posture is what changed most dramatically under the 2022 guidance. The guidance is internal to the DOJ, however, and does not bind the court — the judge still must make the legal finding.
Step 5: The Court Decides
The bankruptcy judge applies the governing standard — the Brunner test in most circuits, or totality of the circumstances in others — and enters an order. The court may grant a full discharge, a partial discharge, or deny discharge. Reflecting cases brought under the 2022 process, studentaid.gov reports that courts granted full or partial discharge in approximately 98% of cases decided November 2022 through March 2024. That figure is windowed and source-attributed; it is not a guarantee.
Why Counsel Matters
An adversary proceeding is litigation. It involves pleadings, evidence, and the application of legal standards that vary by circuit. People's Justice is not a law firm and does not provide legal advice; we connect you with licensed attorneys, and we are not a government agency. No outcome is guaranteed; whether your loans can be discharged depends on your facts and a court's decision. An attorney can evaluate your finances, identify the standard in your circuit, and handle the proceeding on your behalf.
Related Pages
The DOJ Attestation Form
On November 17, 2022, the Department of Justice and Department of Education introduced a sworn attestation form that streamlined how student-loan discharge requests are evaluated in bankruptcy. Government attorneys use the disclosed income, assets, and expenses to assess undue hardship under 11 U.S.C. §523(a)(8) and can recommend full or partial discharge when the criteria are met. The guidance does not bind courts. No outcome is guaranteed; the result depends on your facts and a court's decision.
The Brunner Test, Explained
Most federal circuits decide whether student loans cause an "undue hardship" under 11 U.S.C. §523(a)(8) using the three-prong Brunner test: present inability to maintain a minimal standard of living if forced to repay, persistence of that hardship, and good-faith repayment efforts. Some circuits use a totality-of-circumstances standard instead. No outcome is guaranteed; whether you meet the standard depends on your facts and a court's decision.
Federal vs. Private Student Loans in Bankruptcy
Federal and private student loans follow different paths in bankruptcy. Federal loans require proving undue hardship under 11 U.S.C. §523(a)(8) through an adversary proceeding. Many private loans are treated as general unsecured debt and may be discharged without proving undue hardship at all (studentaid.gov; CFPB). Knowing which loans you hold is the first step. No outcome is guaranteed; the result depends on your facts and a court's decision.
Discharging Student Loans in Bankruptcy Lawsuit
Student loans are not automatically dischargeable in bankruptcy, but they are not impossible to discharge either. Federal student loans can be discharged by proving undue hardship under 11 U.S.C. §523(a)(8), which most courts evaluate using the three-prong Brunner test (some circuits use a totality-of-circumstances standard). This requires filing a separate lawsuit within your bankruptcy called an adversary proceeding. A November 17, 2022 Department of Justice and Department of Education guidance and attestation form streamlined the process — and studentaid.gov reports that courts granted full or partial discharge in roughly 98% of cases decided November 2022 through March 2024. Private student loans are treated as general unsecured debt and are dischargeable without undue-hardship proof. People's Justice is not a law firm; we connect you with licensed attorneys who can evaluate whether discharge may be possible for you.
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