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The History of Student Loans in Bankruptcy
Student loans are basically non-cancellable, almost everyone knows that. There are some very specific circumstances where student loan debt can still be written off today, but this is a limited exception that often requires a fight and money to fight for. We will discuss the current status of the drop in a future post.
The picture surrounding student loans and bankruptcy hasn’t always been so bleak. Not long ago these loans were cancellable. Back when you could opt out, the cost of an education was much lower and total student loan debt was a fraction of what it is now. Because student loan debt is currently a $1,200,000,000,000.00 (one billion two hundred billion) dollar problem that prevents people from buying homes or participating in the broader economy, with a little of help, they can be unsubscribed again.
A Brief History
Student loans didn’t really appear in the United States until 1958 under the National Defense Education Act. 1. These loans were offered as a way to encourage students to pursue math and science majors to keep us competitive with the Soviet Union. 2. In 1965, the guaranteed student loan program or Stafford loan was started under the Johnson administration. Over time, additional loan programs have been created. The need for student loans has increased as the grants that universities receive have decreased over time. Take Ohio State for example. In 1990, they received 25% of their budget from the State, as of 2012 this percentage had fallen to 7%. In the absence of state money, universities and colleges have increased tuition to cover the reduction in state money.
The increase in the cost of education.
The inflation-adjusted cost of higher education over time goes something like this: In 1980 the average cost of tuition and board at a public institution was $7,587.00 in 2014 and 2015 dollars had risen to $18,943.00 in 2014 dollars. The cost of a higher education in 35 years with accounting inflation has increased 2.5 times. Compare that to inflation-adjusted housing costs that have remained nearly flat, rising just 19% between 1980 and 2015, when the bubble and housing bust are removed. 3. Or compare to wages that, except for the top 25%, have not increased during that same time period. In terms of affordability in terms of minimum wage, it is clear that loans are increasingly necessary for anyone who wants to go to college or university. In 1981, a minimum wage earner could work full-time in the summer and earn almost enough to cover their annual college costs, leaving a small amount they could raise through grants, loans or working during the school year. 4. In 2005, a student earning minimum wage would have to work all year and put all that money toward the cost of their education to pay for 1 year of public school or college. 5. Now think about this, there are approximately 40 million people with over $1.2 trillion in student loan debt. According to studentaid.gov, seven million of those borrowers are in default, or about 18%. Default is defined as being 270 days past due on student loan payments. Once delinquent, loan balances increase by 25% and are sent to collections. Collection agencies receive a commission on the debt collected and are often owned by the same entity that originated the loans, namely Sallie Mae.
The student debt prison building.
Before 1976, student loans were dischargeable in bankruptcy without any restrictions. Of course, if you look back at the statistics of that era, there wasn’t much student debt to speak of. When the US Bankruptcy Code was enacted in 1978, the ability to service student loans was reduced. Back then, in order to pay off your loans, you had to be in arrears for 5 years or show that such repayment would be an undue hardship. The rationale for reducing the discharge was that it would hurt the student loan system as student debtors flocked to bankruptcy to pay off their debt. The facts, however, did not support this attack. In 1977, only 0.3% of student loans were discharged in bankruptcy. 6. Even so, the walls continued to be closed to student debtors. Until 1984, only private student loans made by a nonprofit higher education institution were exempt from the discharge. 7. Then, with the enactment of the Bankruptcy Amendments and the Federal Judgment Act of 1984, private loans from all nonprofit lenders were exempt from discharge. In 1990, the repayment period before receiving a discharge was extended to 7 years. 8. In 1991, the Emergency Unemployment Compensation Act of 1991 allowed the federal government to garnish up to 10% of available pay from defaulting borrowers. 9. In 1993, the Higher Education Amendments of 1992 added an income-contingent repayment requiring 20% of discretionary income to be paid on direct loans. 10. After 25 years of repayment, the remaining balance was forgiven. In 1996, the Debt Collection Improvement Act of 1996 allowed Social Security benefit payments to be offset against unpaid federal education loans. 11. In 1998, the Higher Education Amendments of 1998 repealed the provision that allowed repayment of education loans after 7 years of repayment. 12. In 2001, the United States Department of Education began matching up to 15% of Social Security disability and retirement benefits to pay off delinquent federal education loans. In 2005, “the law change,” as we call it in the bankruptcy arena, further narrowed the discharge exception to include most private student loans. Since private student loans were protected from discharge in bankruptcy, there has been no reduction in the cost of these loans. 13. If the rationale for exempting student loans from the discharge is that the cost to students of obtaining loans would increase, that fact would seem to defeat that argument.
In the wake of the slow march toward saddling our students with unbreakable debt, the government created a couple of ways to deal with government-backed student loans outside of bankruptcy. In 2007, the College Cost Reduction and Access Act of 2007 added income-based repayment that allows for a smaller repayment than income-contingent repayment, 15% of discretionary income, and debt forgiveness after of 25 years 14. In 2010, the Health Care and Education Reconciliation Act of 2010 created a new version of income-based repayment that reduced the monthly payment to 10% of discretionary income with debt forgiveness after 20 years 15. This new enhanced income-based repayment plan is only for borrowers who have no loans before 2008. Also, those with delinquent loans will not be eligible for income-based repayment unless they first rehabilitate these loans. If you’re interested in seeing if your loans qualify for income-based repayment or income-contingent repayment, visit the Student Help Desk. Unfortunately, none of these programs do anything to address private loans, a growing problem currently at about $200,000,000,000.00 (two hundred billion) or about 16% of total student loan debt.
What can we do?
The cost of education is rising relentlessly, the need for higher education to earn a living wage is only increasing, and the ability of our graduates to repay these loans is diminishing. Why is the cost of education so much higher than inflation? Why are state and local governments cutting the funds they used to give to college students? These are questions that must also be resolved. My focus is on the unavailability of a real download option and how it is affecting the rest of the economy. This is a problem. On September 8, 2015, Michigan Representative Dan Kildee introduced a bill in Congress aimed at reducing the burden on students and their families caused by the rising costs of education and the financial stress of student loans. 16. The proposed legislation would eliminate the discharge exception listed in 11 USC § 523(a)(8). If you want to have your say on this issue, call your congressman today and let them know where you stand on HR 3451
all the best,
Steven Palmer, Esq.
Licensed in WA and OH
2. PL 85-864; 72 state 1580
3. Case Schiller House price index, adjusted for inflation
4. Student Debt: Bigger and Bigger, Center for Economic and Policy Research by Heather Boushey (Sept. 2005).
5. Boushey (Sept. 2005)
6. ENDING STUDENT LOAN EXCEPTIONALISM: THE CASE FOR RISK-BASED PRICING AND DISCHARGEABILITY, 126 Harv. Rev. L. 587
7. Financial aid dot Org, Questions, Bankruptcy
8. Crime Control Act of 1990, PL 101-674, 11/29/1990
9. PL 102-164, 11/15/1991
10. PL 102-325, 23/7/1992
11. Debt collection improvement law of 1996, PL 104-134, 4/26/1996
12. PL 105-244, 7/10/1998
13. 126 Harv. Rev. L. 587
14. PL 110-84, 27/9/2007
15. PL 111-152, 30/03/2010
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