Sunday, February 4, 2018

Bankruptcy Discharge of student loans - Brunner Test

In Pennsylvania, the US Court of Appeals, 3rd Cir. has adopted the "Brunner" Test announced BRUNNER v. NEW YORK STATE HIGHER EDUCATION SERVICES CORP., 831 F.2d 395 (2d Cir. 1987). The opinion set up a three prong test. All three prongs must be met to establish "undue hardship" allowing student loans to be discharged in bankruptcy. The court in Brunner stated: 

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"... As noted by the district court, there is very little appellate authority on the definition of 'undue hardship' in the context of 11 U.S.C. § 523(a) (8) (B). Based on legislative history and the decisions of other district and bankruptcy courts, the district court adopted a standard for "undue hardship" requiring a three-part showing: 

(1) that the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for herself and her dependents if forced to repay the loans; 

(2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and 

(3) that the debtor has made good faith efforts to repay the loans. For the reasons set forth in the district court's order, we adopt this analysis..."
id. emphasis added.
Most commentary on this test discusses the Draconian effect of the application of this test (see this article). This test is near impossible for a younger healthy adult to meet. Also, attempting to prove "undue hardship"  in a case can be quite costly. For these reasons, most bankruptcy attorneys are cautious about trying to discharge school loans.
If you want assistance, legal representation, or just want to know more about me, Mark M. Medvesky, or Wells, Hoffman, Holloway & Medvesky LLP, check out our website at

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1 comment:

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