Legal Question in Bankruptcy in Tennessee

1996 Bankruptcy and a student loan

My husband filed Chp 7 in 96 that included a student loan. He proved he had no assets and no way to repay this loan. It was listed on the list of creditors and discharge papers. Nowhere did it state that this was a debt that could/would not be discharged, nor was he told by the judge. Only when we married and bought our house (in 2000) did the student loan issue resurface and they began trying to collect. We have faxed them 7 times, mailed 1 the copies of the entire bankruptcy file. They stated that we are being held to the 1998 law change and will begin garnishing my husband's wages (with 4 kids this is also now an undue hardship that we could prove, but how would we pay for an attorney if we couldn't even pay for the loan?). Who is right and what should we do?


Asked on 4/20/04, 10:13 am

1 Answer from Attorneys
James R. Becker, Jr. Becker Law Firm

Re: 1996 Bankruptcy and a student loan

Your situation is potentially very troublesome. The bankruptcy code is not clear on the treatment of student loans as to whether they are discharged if no objection is filed or if they can just sit there for an indeterminate period of time. The problem that you have is that your 1996 situation is not the same as your present situation and you run the risk of a judge taking your present situation into account to determine if the repayment would constitute an undue hardship.

I would recommend that you run (not walk) to an attorney who handles debtor bankruptcy matters and go over this matter in detail with him or her. You will probably have to either reopen your bankruptcy or file a complaint against the creditor for allegedly violating your discharge rights. Either way will bring this matter to a resolution. Good luck.

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Answered on 4/20/04, 10:39 am


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