I was looking for a personal injury lawyer recently when I came upon an ad that said, “personal injury solicitors no win no fee.”, it seemed like a great deal to me, they would try my case and just take parts of the winning. What could be better than that, I don’t have to pay them if we lose the case. You see, I have worked in a factory my entire life and recently got injured on the job. I was no longer able to do the work so they fired me without offering me compensation of any sort. I hope to just be able to get back onto my feet, but the lawyers tell me that I am entitled to so much more, so I am hoping for the best when this gets taken to court. Read the rest of this entry »
One of the questions I get asked most as a bankruptcy attorney is, can I discharge my student school loans in bankruptcy? Most bankruptcy attorneys will tell you that it’s not possible, but this is simply not true. The process to discharge debt associated with your education is not a simple or automatic process, it takes some effort, but is well worth it in the end to discharge some or all of your student debt. Section 523(a)(8) of the US Bankruptcy Code states that student loans are exempt from forgiveness, unless it poses an “undue hardship.” For the vast majority of people who have a five figure student loan or loans, paying the exorbitant fees every month certainly feels like an undue hardship, but the bankruptcy court interprets the term of “undue hardship” very specifically. But the good news is that recent cases have been coming out that give students with loan debt some hope for relief.
The simple fact is, that most bankruptcy attorneys will tell you that it impossible to discharge such debts in bankruptcy, is either inexperienced or simply not wanting to go through all the trouble to do so. This is why it is so important for you to find an experience bankruptcy attorney, not simply the cheapest one you find in your Google search. The following is a brief explanation of some of the requirements to discharge your student loans in a Chapter 7 Bankruptcy.
Your first step in obtaining a discharge on your student loans is requesting a discharge. Most people are under the erroneous belief that you cannot obtain forgiveness of these loans, so most never try and most bankruptcy attorneys have no idea of what I’m about to tell you. Here are some interesting statistics to prove this point. According to a Harvard Law School study of people who have student loans and file for bankruptcy, out of that group of people, 99.9% of them never attempt to discharge this debt in their bankruptcy filing. That in itself is a staggering figure. Of those that actually request to have the student debt discharged in bankruptcy, 40% are granted either a partial or total discharge of their loans by the bankruptcy court. Now think about that for a minute, almost half of everyone asking for a discharge of their student loans are receiving them, but 99.9% of people with student loans who file for bankruptcy never even ask. This equates to approximately 70,000 people who file for bankruptcy each year qualify to have their student debt discharged or partially discharged, but only 0.01% of those 70,000 even try. This means 28,000 people a year who could discharge their student debt in the bankruptcy petition they file, never even try. Let that sink in for a minute people…
The second and possibly most important aspect of obtaining a discharge for student debt is, do you qualify? The most commonly used test for determination if a student loan qualifies for a bankruptcy discharge is called the Brunner Standard. This standard is based on the following case: United States Court of Appeals, Second Circuit. Marie BRUNNER, Appellant, v. NEW YORK STATE HIGHER EDUCATION SERVICES CORP., Appellee. No. 41, Docket 87-5013. (Cite as: 831 F.2d 395) the ruling of this case has given us three circumstances that must be demonstrated for a person attempting to discharge student debt to qualify. These rules are as follows: 1. If you were to repay your student loans, you would not be able to maintain a minimum standard of living for yourself and/or your family; 2. The financial circumstances that led you to be unable to afford your student loans is likely to be present throughout the remainder of the repayment period of those loans; 3. You have attempted in good faith to pay back your student loans. If you can simply satisfy the three standards, it is certainly worth your time and money to attempt to have your student loans partially or completely discharged in bankruptcy.
The third criteria, if you wish to obtain forgiveness on these debts through bankruptcy, you must take extra steps, which are not covered under your usual attorney client retainer agreement for filing a bankruptcy. What does this mean to you? It means that besides for filing for bankruptcy and the normal legal fees and filing fees associated with that, there will be additional legal work that will need to be paid for this service, outside of the attorney-client retainer agreement for your standard bankruptcy. With the vast majority of debts that are usually filed in bankruptcy, you simply list them in the schedules of the bankruptcy petition. This is not the case for student loans, with student debt your bankruptcy lawyer must file what is called an “adversary proceeding” in bankruptcy court. These adversary proceedings are actually a completely separate lawsuit, filed in bankruptcy court, associated with your bankruptcy filing petition. Essentially what this is, you file a lawsuit against the lenders who own your student loan debt, in order to get some or all of that debt forgiven. It is extremely important to understand that this is a very complex area of law, and one that you should always have an experienced bankruptcy attorney working for you. Many people attempt to file for bankruptcy on their own, I would never suggest this, I will not even attempt to describe this process, as it is not within the scope of this article. Get yourself an experienced bankruptcy lawyer to help you do this.
The fourth important thing that was determined by the Harvard Law school study, which are characteristics that are common to almost all bankruptcy cases that student loan was forgiven are as follows: 1. The debtor (the person filing for bankruptcy protection under the US Bankruptcy Code), was more likely than not, unemployed; 2. The debtor usually had some form of medical hardship, which contributed to this situation; 3. the debtor usually had a lower income than the previous year they filed their bankruptcy petition. These are not clear-cut requirements, which have been described previously in this article, but these are facts that were most likely common to all bankruptcy filings that resulted in the discharge of student loans debt.
Finally, the last important part of the equation is that you must file for Bankruptcy under Chapter 7 of the US Bankruptcy Code. The two most common forms of bankruptcy used are Chapter 7 Bankruptcy and Chapter 13 Bankruptcy. In a Chapter 13 Bankruptcy you (with the help of your lawyer) establish a debt repayment plan (which must be accepted by the Bankruptcy Court), in which you repay a portion of your unsecured debt based on your income and expenses, over a three to five-year period. In a Chapter 7 Bankruptcy you are allowed immediate forgiveness of these unsecured debts, with a few exceptions such as student loans, alimony and child support. To file the adversary proceeding that was described previously in this article, you must be in a Chapter 7 Bankruptcy. This option is NOT available in a Chapter 13 Bankruptcy.
In conclusion, if you think you fit the requirements described in this article and are receiving undue hardship due to the repayment of your student loans, then bankruptcy is an option you should look into. This is why it’s so critical to find an experienced bankruptcy lawyer who understands the US Bankruptcy Code. As in another article I previously published about discharging income tax debt in bankruptcy, discharging student debt is another little-known fact about bankruptcy law that only an experienced bankruptcy attorney would know. One good way to determine if you’re sitting in the office of an experienced bankruptcy attorney is to ask one of the two following questions: Can you discharge student loans in bankruptcy? or Can you discharge income tax debt in bankruptcy? If either of these questions is answered in the negative, you are in the office of the paper pusher and not an experienced bankruptcy attorney. Like anything else in life, you get what you pay for, and shopping for attorneys based on price is a very costly way to learn this life lesson.
Whenever there is a dispute in a family, it can be resolved by doing a family meeting. It is always better to say things out to your family members in case there is any misunderstanding rather than keeping it to yourself. It has always been the small issues that get bigger over time and creates a traction between relationships. Generally, I have seen people fighting over properties and money matters because both the parties think that they are right and they should get all those things. If they had sorted out things earlier, then there wouldn’t be such an issue now.
The worst affected are the children, because in case there is a separation between two families, then they also have to part their ways from each other and this could create a trauma in their minds. But, if you really want to sort things out with the other members of the family, then it is important that you hire a good lawyer. A good lawyer will create a strong case for you and will ensure that your point are properly raised in the court. A good lawyer will not just provide you with dispensing legal advice, but he/she will have other responsibilities such as offering emotional support and sympathy because people generally feel demoralized and low during this phase of time.
A good lawyer will also be flexible with his/her fees. There are some lawyers who charge on hourly basis and there are some who charge only after the case has been filed and a settlement is reached. If you are financially sound, then hiring a lawyer on an hourly basis would not be much of a problem for you, but if you are financially weak, then the court will grant a pendent lite to you. A good lawyer will always advocate on outside the court settlement because he/she knows that once the case has been filed, then the matter will go public.
It is important to check all the facts and details while hiring a lawyer because any mistake in the selection process would cost you all the money and property. You can take the help of the internet in finding out the best lawyer. There are some dedicated law attorneys that only take up cases which are related to family disputes. They know how to make their clients comfortable in this stressful time. It requires a lot of skills to handle people in such situations and family law attorneys can do it in the best way.
In the United States we are blessed – or cursed-with a legal system that contemplates parallel judicial processes. We have a federal court system and each state has a separate state court system. Since 1941 there has been considerable recognition of circumstances under which a federal court may decline to proceed though it has jurisdiction under the Constitution and federal statutes. The cases in which this has been recognized are usually referred to as the abstention doctrine. The abstention doctrine prohibits a federal court from deciding a case within its jurisdiction so that a state court can resolve some or all of the entire dispute. The purpose of the doctrine is to preserve the balance between state and federal sovereignty. This constitutional balance is often referred to as federalism or comity.
Although integral to the workings of state and federal courts, the abstention doctrine has come under criticism by scholars over the years who wish to see the doctrine neutralized or abolished through legislation. I believe we need abstention in our parallel system for the interests of various states must outweigh federal adjudication. My research has shown that since the beginning of the twenty-first century, the federal courts have been doing a fine job on a case-by-case basis of recognizing and implementing the need or lack of need for abstention.
Scholars and courts often refer to at least four distinguishable lines of abstention doctrine cases. These cases involve different factual situations, different procedural consequences, and different arguments for and against their validity. In this article I will only discuss the most often used type of abstention; it is known as Pullman Abstention. With Pullman abstention, federal courts avoid decisions of federal constitutional questions when the case may be disposed of on a question of state law.
The doctrine grew out of Railroad Commission v. Pullman Co., the now famous 1941 Supreme Court case. The opinion was written by Justice Frankfurter and involved an order by the Texas Railroad Commission that no sleeping car could be operated on any railroad line in Texas unless the cars were in charge of an employee having the rank of Pullman conductor. This new order had strong racial overtones. The Court found in those sections of Texas where the local passenger traffic was slight, trains carried only one sleeping car. Such trains, unlike trains having two or more sleepers, were without a Pullman conductor. Such sleeper was in charge of a Pullman porter. In 1941, all Pullman conductors were white and all Pullman porters were black. Upon learning of the new Texas order, the Pullman Company brought an action in federal district court to enjoin the Railroad Commission’s order. The Pullman Company assailed the order as unauthorized by Texas law, as well as violative of equal Protection, the Due Process Clause, and the Commerce Clause of the Constitution. The Pullman Porters, through their union, were allowed to intervene in the suit and objected to the order on the ground that it discriminated against African- Americans in violation of the Fourteenth Amendment to the U.S. Constitution.
The federal court convened a three- judge panel which enjoined the enforcement of the order. The case came directly to the U.S. Supreme Court from the decree of the three- judge panel. The Supreme Court found that the complaint of the Pullman porters tendered a substantial constitutional issue. Yet, the Court held that the issue was a sensitive one that touched on social policy upon which the federal courts ought not to enter unless no alternative to its adjudication was open. The Court held that the constitutional adjudication could be avoided if a definitive ruling on a state issue would terminate the controversy. The Court then turned to a consideration of questions under Texas state law. Pursuant to Texas law, the Court found a statute that maintained, in relevant part, “it is common ground that if the order is within the Commission’s authority its subject matter must be included in the Commission’s power to prevent unjust discrimination… and to prevent any and all abused in the conduct of railroad.”
The Supreme Court found that the last word on the meaning of the Texas statute, and therefore, the last word on the authority of the Texas statute belonged to the Texas Supreme Court. The Court reasoned the “reign of law” was not promoted if an unnecessary ruling of a federal court could be supplanted by a controlling decision of a state court. The Court further reasoned that “the resources of equity were equal to an adjustment that would avoid a waste of a tentative decision, as well as the friction of a premature constitutional adjudication.”
The Supreme Court remanded the case to the district court with directions to retain the case pending a determination of the state proceedings. Here the Court reasoned that if there was no “warrant in state law for the Commission’s assumption of authority there was an end to the litigation and the constitutional issue would not rise.” The Court then held that “in the absence of any showing that these methods for securing a definitive ruling in the state courts cannot be pursued with the full protection of the constitutional claim, the district court should exercise its wise discretion by staying its hands.”
Thus, the classic Pullman abstention case dictates that the federal court stay, but not dismiss, the action while the state court resolves the issue of state law. On a practical level the Pullman decision by the U.S. Supreme court allowed the State Supreme Court of Texas to save face for the state of Texas by not allowing the Texas Railroad Commission to enforce a facially discriminatory law aimed at black Pullman porters by enforcing the nondiscrimination language of the Texas Constitution.
The 1941 Pullman decision is now seen as one of the early civil rights victories for African- American workers in the United States.