Department of Justice Guidance on Discharging Federal Student Loans in Bankruptcy Expanded to Include FFEL and Perkins Loans

Last November, the Department of Justice, in coordination with the Department of Education, released a new Guidance for assistant United States Attorneys defending bankruptcy adversary proceedings where borrowers seek to discharge federal student loan debt due to an undue hardship. The Guidance attempts to create objective criteria to streamline and reduce the costs of discharging student loans in bankruptcy by allowing debtors to complete a standardized form so the Department of Justice may review and hopefully agree to discharge some or all of the debt in lieu formal discovery and the need for a trial.

On October 19, 2023, the Department of Education formally expanded the scope of the Guidance to include not only loans held by the Department of Education, but also will now include guarantors and educational institutions participating in the Federal Family Education Loan Program “FFEL” and Federal Perkins Loan Programs.

FFEL and Perkins loans are different than other federally backed student loans as these are owned by private lenders, but guaranteed by the government. Even through the FFEL program ended in 2010, it still services about four million borrowers and holds about 7% of the total federal student debt portfolio, or roughly $23 Billion Dollars according to Federal Student Aid data.

This new expansion will allow debtors to avoid costly and time-consuming formal discovery while providing consistent treatment of borrowers whether they have Direct, FFEL or Perkins loans.

Scott Waterman
Chapter 13 Bankruptcy Trustee for the Eastern District of Pennsylvania

Scott F.Waterman, Esq. graduated from Tufts University in 1991 with a dual major in history and political science. He received his J.D. from Temple University School of Law in 1994. He is a Chapter 13 Bankruptcy Trustee for the Eastern District of Pennsylvania, and his office is located in Reading, Pennsylvania.  Previously,  he had his own private law practice focusing on consumer bankruptcy and commercial collection matters. Mr. Waterman is a former Chairof the Eastern District of Pennsylvania Bankruptcy Conference and is a Fellow of the American College of Bankruptcy.  He is a member of the National Association of Chapter 13 Trustees and the Berks County Bar Association.  Mr. Waterman volunteers his time as a current board member of the Consumer Bankruptcy Assistance Project which provides free legal assistance to indigent bankruptcy clients.  In 2014 Mr. Waterman was appointed to be a member of the Local Rules Advisory Committee of the United States Bankruptcy Court for the Eastern District of Pennsylvania in helping to draft new and updated local bankruptcy rules. That same year he served on the Bankruptcy Judge Merit Selection Committee for the Eastern District of Pennsylvania to which he was appointed by the United States Court of Appeals for the Third Circuit. Mr. Waterman has two sons and enjoys sailing, playing softball and watching baseball.  He spends his free time driving his kids back and forth to their various sporting activities.

Cohen
The Student Loans Lawyer

Joshua R.I. Cohen, The Student Loan Lawyer, started his legal career in October 2008, when he passed the bar and founded his own firm. Through his law school experience, he had worked for both legal aid and a private firm doing consumer protection work. Once on his own, he continued with consumer protection but quickly began a niche in student loan work. Within nine months of opening his firm, he filed his first-class action against the student loan industry.  His practice helps students maneuver the rocky terrain of student loans, including understanding how to get loans out of default, how to obtain affordable payment plans, defending student loan collection lawsuits, bringing affirmative claims for violation of student loan law, and discharging loans through bankruptcy adversary proceedings. In addition to helping borrowers, Josh also helps attorneys. His Student Loan Law Workshop, a 2-day intensive workshop teaching attorneys how to incorporate student loan law into their existing practice, is now in its 11th year. Josh is also the creator of software that helps attorneys better prepare and counsel clients regarding their student loans, found at www.studentloantoolbox.net.  He’s been a speaker at the National Consumer Law Center’s Consumer Rights Litigation Conference and the National Association of Consumer Bankruptcy Attorney’s national conference. He also frequently appears for CLE’s for Bar Associations.  Josh was born and raised on Long Island and has lived up and down the East Coast before finally settling down in Vermont, where he’s been since 2012. He holds a BA in Psychology from Brandeis University, an MBA, and a JD from Quinnipiac University School of Law. He has three children and is an avid skier, glamper, and model builder.

Related Articles

Copy of Hildebrand-2016
June 18, 2023
The Ninth Circuit has now joined its sister Circuit in holding that the Bankruptcy Code does not permita Chapter 13 Trustee to retain the percentage fees collected on payments that a chapter 13 debtor made pre-confirmation in accordance with 26 U.S.C. §586 but, upon dismissal prior to confirmation of the plan, is obligated to return the fee to the debtor,...
Members
May 5, 2019
By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) Section I. Student Loans, Part II – Suggested Regulatory and Judicial Changes In our last installment of the Academy Report on the ABI Commission on Consumer Bankruptcy we dealt with the ABI Commission’s suggested statutory modifications which could address some of the problems facing borrowers confronted with substantial student...
Members
Copy of Hildebrand-2016
December 5, 2021
Although a Chapter 13 debtor has the absolute right to voluntarily dismiss her Chapter 13 case, even after a motion to convert is filed, the Court retains the rights to impose restrictions on the dismissal. (Waites) In re Brittany Frances Minogue, 2021 WL 4453589 (Bankr. D. S.C. September 29, 2021) Summary Brittany Minogue filed a voluntary petition under Chapter 13...
Members
November 1, 2020
By James J. Robinson, Chief United States Bankruptcy Judge, Northern District of Alabama Under what circumstances should the trustee object to claims (assuming a purpose would be served under § 707(a)(5))? Midland Funding, LLC v. Johnson, 137 S. Ct. 1407 (2017). This case centered around the debtor’s argument that a creditor violated the Fair Debt Collection Practices Act when it...
Members
May 5, 2019
By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Background Last year, the Ninth Circuit in In re Taggart1 ruled that an act in violation of the discharge injunction did not empower a court to find a creditor in contempt, if the creditor believed in good faith that the discharge injunction did not apply—even if the creditor's belief was...
Members
gustafson2
Conduit vs. Direct Mortgage Payments – The Case Law To Consider1 The requirement that debtors pay their mortgage payments to their Chapter 13 Trustee as a “conduit” has advantages and disadvantages. One advantage is the fact that the Chapter 13 Trustee’s records are readily accepted by both the court and creditors in the event of a payment dispute. This advantage...
Members
Copy of Hildebrand-2016
November 20, 2022
A golf cart is a motor vehicle and may be exempted by a Chapter 7 debtor under state law. (Loyd) In re Smith, 2022 WL 3023209 (Bankr. W.D. Okla. July 28, 2022) Case Summary Bobby Smith filed a Chapter 7 petition and listed his golf cart as an exempt asset under Oklahoma law because it was a “motor vehicle.” The...
Members
Hale-Andrew-Antico
September 25, 2022
Sahni v. Tajima (In re Tajima) 2022 WL 3354006 (9th Cir. BAP Aug 15, 2022)(unpublished) S.Klein J ISSUE Did the Bankruptcy Court err when confirming Chapter 13 plan? RULING Yes. FACTS This case involves the tension of litigation in bankruptcy causing delay, and the need to get a Chapter 13 plan confirmed quickly. Here, there was a dispute between debtors...
Members
August 9, 2020
By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Introduction to this Series Current pandemic circumstances and economic conditions portend an onslaught of bankruptcy filings. In the consumer bankruptcy field, trustees and debtors' counsel often are uncomfortable with the rules in UCC Article 9. Here, we look at a couple of topics that touch on the interplay of Article...
Members
finberg
September 10, 2023
Andrew B. Finberg has been appointed as a Chapter 13 Standing Trustee for the District of New Jersey.  Finberg is picking up the mantle left by happily retiring Isabel Balboa.

Looking to Become a Member?

ConsiderChapter13.org offers a forum to advance continuing education of consumer bankruptcy via access to insightful articles, informative webinars, and the latest industry news. Join now to benefit from expert resources and stay informed.

Webinars

These informative sessions are led by industry experts and cover a range of consumer bankruptcy topics.

Member Articles

Written by industry experts, these articles provide in-depth analysis and practical guidance on consumer bankruptcy topics.

Industry News

The Academy is the go-to source for the latest news and analysis in the Chapter 13 bankruptcy industry.

To get started, please let us know which of these best fits your current position: