Education loan Discharge: Reevaluating Undue Hardship under a Presumption of Consistent Usage
Ashley M. Bykerk * Notes & Comments Editor, Emory Bankruptcy Developments Journal; J.D. Candidate, Emory University School of Law (2019); B.A., with high difference, Nebraska Wesleyan University (2016). First, I wish to thank my faculty consultant, Professor Rafael Pardo, for their assistance that is invaluable in my remark. I might additionally choose to thank the employees users and editors associated with the Emory Bankruptcy Developments Journal with regards to their work that is diligent in my Comment for publication. Finally, I wish to thank my children and buddies due to their endless help.
An number that is increasing of are susceptible to monetary stress brought on by academic financial obligation. Some of these people look for rest from that distress through the bankruptcy system, where they have to establish that repaying their academic financial obligation would impose an undue difficulty in purchase to acquire a release of these financial obligation. The main focus of the Comment is § 523(a)(8) associated with U.S. Bankruptcy Code, which sets forth academic financial obligation being an exclusion to bankruptcy release unless the repayment of education loan responsibilities imposes an “undue difficulty. ” In drafting this area, Congress failed to determine the expression “undue hardship, ” thus empowering the courts to find out just just what comprises undue difficulty and the circumstances that deserve forgiveness of academic debt. Being outcome, courts are suffering from a number of tests to deliver a framework for determining whether a financial obligation ought to be dischargeable.
Congress’s choice to shape the relief of academic loans in the application of the obscure and standard that is indeterminate turned out to be difficult for different reasons. One solution, maybe perhaps perhaps not yet talked about by courts and commentators, is always to turn to other federal statutes and laws implementing the undue hardship standard to judge the use of the standard and consider exactly exactly how those applications can notify the undue difficulty analysis within the bankruptcy context.…