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Student Loan Solutions
See below for tips to end roadblocks faced by our older population when dealing with student loans!

In a Yahoo Finance article this week, several problems were outlined and addressed during Secretary DeVos’ testimony on Capitol Hill.  First, lengthy delays in the Borrower Defense to Repayment program for those who were fraudulently misled by their schools.  Second, public service forgiveness denials for those who believed their student loan payments have been counting for years.  And third, confusion and difficulties for those trying to obtain student loan relief due to their disabilities.  I’d like to focus on this problem because while public service and fraudulent schools have had tons of press over the past couple years, the roadblocks faced by disabled borrowers have not been discussed much at all.

Under federal law, a disabled person can apply for total and permanent disability discharge to relieve their federal student loan debt.  However, on December 4, 2019, NPR released the data and results of an investigation that showed that only 28% of eligible borrowers identified between March 2016 and September 2019 have either had their loans wiped clean or are on track for that to happen.

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After having moved my parents and in laws to South Tampa’s SOHO district to be close to us, I can’t help but notice all the E-Scooters appearing there and in downtown Tampa over the past year.  Please be careful when riding these.  At least wear bright colors and a simple bike helmet if you can.  These two steps alone would drastically reduce the vehicle versus E-Scooter problem out there.  And wave if you happen to see my 78 year old mom riding around town!  Not too likely, but you never know.

Riding an e-scooter is an excellent way of getting around. They are small, fast, and flexible. They allow riders to avoid congestion and save time by not having to find a parking space. However, the benefits of using an e-scooter do not come without dangers.

E-scooter accidents are on the rise throughout the United States. The quick and agile motion of e-scooters can throw off inattentive automobile drivers. E-scooter riders are also put in danger by the reckless and irresponsible.

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Student Loan SolutionsSome of our student loan clients have asked what they can make in terms of income and still be approved for a social security disability discharge.  Normally we tell them income from employment counts, income from investments do not.  For those that fear that they have to do a little part-time work in order to meet their bills, the guidelines allow someone to earn up to the poverty guidelines for their family size (and a family of one can use a family of two).

 
What forms of income are used to determine if I am exceeding the Poverty Guidelines or not?
The only income used to determine if you are exceeding the Poverty Guideline amount is income from employment.

Type of Income Counts Toward Poverty Guideline Amount?
Earnings from wages, tips or other taxable employee pay Yes
Earnings from self-employment Yes
Supplemental Security Income (SSI) No
Child Support No
Federal or state assistance No
Retirement Plan Income No
Unemployment Benefits No
Your spouse’s income (from any source) No

 

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Student Loan SolutionsMany federal student loans placed in in-school deferment will accrue interest during school and capitalize upon graduation:

Loan types that do not require payment of interest when deferring student loans include:

  • Subsidized Federal Stafford Loans
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Student Loan SolutionsInteresting times to be a student loan attorney.  Just this week, a key decision was issued by the Fifth Circuit in In re: Crocker, No. 18-20254 which discharged private student loans.  Why is this important?  Well, it’s the first published Circuit level case on this issue.  And the Court ruled against Navient!

Of course, you have to meet certain criteria to have a non-qualified student loan — the loans must have been outside or beyond the actual cost of education, or provided to an ineligible institution or ineligible student.

Which brings to mind, what is an ineligible institution?  Simple, one that was not eligible for federal funding.  Including a school which got federal aid under false pretenses.  Perhaps federal loans were provided to a for-profit school BEFORE they were actually eligible.  This opens a whole new batch of loans which may be discharged.

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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgSometimes, in a bankruptcy, we want to separately classify student loans, particularly federal student loans, where our client debtors can benefit from public service or income driven plans with debt forgiveness.  It’s also helpful to separately classify private student loans if we’ve otherwise reached a settlement agreement with the creditor.  The key is to avoid harm to the other unsecured creditors by doing so. 

In a recent case out of North Carolina, a Bankruptcy Court considered factors to permit separate classification of debts that included moral obligation and tangible benefit.

A parent who cosigned a student loan for a child cannot separately classify the loan and pay it in full under a chapter 13 plan, according to Bankruptcy Judge David M. Warren of Raleigh, North Carolina.
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The Bankruptcy Court for the Middle District of Florida maintains its own newsletter called Court Connection which is distributed among court personnel and attorneys throughout the Middle District of Florida.  This Court is the third most busy bankruptcy district in the country!  One of the reasons it’s so active is that it covers several large metro areas including Tampa, St. Petersburg, Orlando, Daytona, Jacksonville, and Ocala.  The Hon. Judge Jennemann wrote a short introductory article about how this new program got its start and the various participants along the way.

Our article “Why Do We Need the Student Loan Management Program?” was published and distributed today in the Court Connection.  It discussed this brand new program which is the first in the nation developed to address student loan debt in bankruptcy.  We hope that it helps to raise awareness of the need and application of a program such as this.

We are hopeful that the new Student Loan Management Program will be adopted throughout the country as a new way to combat student loan debt.  The key goals are to enhance communication, increase awareness of various options regarding both private and federal loans, and take advantage of applicable programs and mediation while in bankruptcy, rather than just suffer through years of forbearance that only results in larger balances post bankruptcy with no forgiveness on the horizon.

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Are you looking down the barrel of an arbitration clause in your consumer/creditor agreement?  I’ve posted before (Arbitration Clauses in Consumer Contracts – How to Avoid Being Thrown out of Court) on some local case law here in Florida to help avoid arbitration clauses – but here’s a new case in the consumer’s favor in Bankruptcy Court for the Middle District of Florida.

The Bankruptcy Court ruled that an arbitration clause did not constrain the court’s contempt powers, “[w]ords in a consumer agreement cannot deprive the bankruptcy court of the inherent power to enforce compliance with an injunction.”  Verizon Wireless Personal Communications, LP v. Bateman, No. 14-5369, Adv. Pro. No. 18-1394 (M.D. Fla. Sept. 24, 2019).

So if you’re in bankruptcy, or had a previously filed one that you can reopen (without a filing fee), challenge the arbitration clause in bankruptcy – you may be much more likely to win!

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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgAs a student loan attorney, I find this appalling.  What if someone hired me as their attorney and I failed to comply with the law 61% of the time?  I bet I’d be hearing from the Florida Bar pretty quickly and I’d probably lose my license to practice law.

But what happens when the federal student loan servicers fail to comply with the law 61% of the time?  Well the Department of Education doesn’t really seem to care.

Here are some key points raised in a 52 page an audit by the Office of Inspector General released recently (that we’ve been liberally sharing with our bankruptcy judges to show why the new Student Loan Management Program in bankruptcy court is needed):

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