Good Idea, Bad Idea - Cosigning a Loan

There are many good reasons why you may want to cosign a loan.  Some typical examples include helping a child obtain their college education by co-signing student loans, or assisting your spouse in purchasing a car. With any good idea, however, a small difference in the situation can make it a very bad idea.

Many people are unaware of the consequences of cosigning a loan, and in many many instances cosigning may be a very bad idea.  Take just the two examples described above:  If your child is unable to find a job after college and therefore unable to pay their student loan, that loan will be your responsibility.  If you and your spouse separate and he or she stops paying their car loan, your credit will be affected as well (even if they still have the car).

In these previous three posts we explored what happens when a cosigner or the primary borrower on a loan declares bankruptcy:

What happens to my Cosigner if I file for Bankruptcy?

I co-signed a loan and the primary borrower has filed for bankruptcy. What should I do to protect myself?

I am the primary borrower on a loan and my cosigner has filed for bankruptcy. What should I do to protect myself?

The short answer is simple: IF YOU SIGN A PROMISSORY NOTE, YOU HAVE A RESPONSIBILITY TO PAY THAT LOAN.  

By the numerous comments and questions we receive on all three of those posts it is obvious that many cosignors don't realize how serious this obligation is when they signed the loan.  Many people feel that it should matter that they don't have access to the collateral (such as a house or car) or that they don't have a relationship with the primary borrower anymore.  These are all the inherent risks in co-signing a loan and it doesn't matter to the lender.  If you cosigned a loan, you agreed to pay the money back if the other person doesn't, regardless of the circumstances.

If it isn't paid on time your credit will be affected.  If it isn't paid at all, the lender can sue you for the funds.  If the primary borrower files for bankruptcy and the debt is discharged so that they no longer owe it, you still do!

Cosigning a loan is not something that should be taken on lightly.  There are often good reasons to do it, but you should also consider all of the reasons why you might not want to.  In short, if you can't pay back the loan yourself, then you'd better be 100% positive that the primary borrower will pay it back.  If the lender was convinced of that, then the primary borrower wouldn't need a co-signor in the first place.

Bankruptcy and Student Loans: Another Infographic

The infographic below provides a summary of the student loan debt problem and the limitations of the current bankruptcy law to resolve that problem.  For a more in depth review of these issues see our previous post: Can bankruptcy help with my student loans?.



From: OnlineColleges.net

Reprinted from OnlineColleges.net.

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Can bankruptcy help with my student loans?

Student loans have become a larger and larger portion of the average consumer's debt. As a country, our student loan debt is now higher than consumer spending debt. While consumer spending debt can typically be discharged in a bankruptcy, though, most student loan debt cannot.

As described in this infographic, student loan debt is exempt from many of the protections that consumers have available when it comes to other debts. If that seems unfair to you, then you're not alone. A few of our fellow legal bloggers have written some compelling posts on the necessity of changing the law on bankruptcy when it comes to student loans, and even the president has weighed in in favor of making a change.

However, until the law is changed, the current status is bleak for most. While a Chapter 13 plan can help you structure the payments and potentially stop wage garnishments, it will not reduce the overall debt, and at the end of the plan you may be back in the same position. In a Chapter 7, student loans are considered a non-dischargeable debt unless you can show "undue hardship." In the Brunner case, the U.S. Court of Appeals 2nd Circuit admits that that their is little help in the statute for defining what constitutes an "undue hardship."

The Court in that case required a three-part test to show undue hardship:

"(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."

Essentially this means that to discharge the debt you have to show that you can't pay the loan now, you tried to pay the loan, and it is not likely you will be able to pay the loan before you die. Many believe this test limits the benefits of the "undue hardship" clause to the elderly or terminally ill.

For most, the best option may not be bankruptcy at all, at least not to deal with student loan debt. Until and unless the law changes, the Income Based Repayment Plan available through the Department of Education is the only option for reducing the burden of student loans when a partial financial hardship exists.

If you still think this is unfair, tell congress that you want it changed.

The Student Loan Problem (Infographic)

The following infographic provides an overview of the student loan problem in America, how we got here, and why it is getting worse:


Infographic by College Scholarships.org

Reprinted from: College Scholarships.org

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

FAQ #13: What debts will bankruptcy not erase?

Even if you receive a general discharge, some particular debts are not discharged under the law. You may still be responsible for most taxes and student loans; domestic support and divorce settlement obligations; most fines, penalties, forfeitures and criminal restitution obligations; debts which are not properly listed in your bankruptcy filing; and debts for death or personal injury caused by operating a motor vehicle, vessel or aircraft while intoxicated on alcohol or drugs. Debts incurred to pay non-dischargeable debts will themselves be non-dischargeable as well. In simpler terms this means that you cannot, for instance, use a credit card to pay your student loans and then discharge the credit card.

Also, if a creditor can prove that a debt arose from fraud, breach of fiduciary duty, or theft, or from a willful and malicious injury, the bankruptcy court may determine that the debt is not discharged.

FAQ #3: Will bankruptcy hurt my chances of co-signing for my children’s student loans?

Generally, any time a loan is applied for, the lender will evaluate the creditworthiness of both guarantors. An adverse credit history of one co-signer may result in the denial of the loan. However, the ability of a parent to co-sign their children’s loans (including student loans) largely depends on the lender and the type of loan.

For example, a parent may be able to co-sign for Stafford Loans (federally guaranteed student loans) shortly after bankruptcy, but will have difficulty co-signing a PLUS loan if less than 5 years have passed since discharge. These requirements are built into the lending structure for student loans, and reflect the individual requirements for each financing option. In other words, it depends on the loan and you should consult with a college financial aid expert or an attorney.

If you don't see your question and would like more information please do not hesitate to call us at 508.655.5980, e-mail us, or attend one of our weekly Free Debt Relief Clinics.

Will Bankruptcy affect our Child's College Financial Aid?

Most Financial Aid packages include some loans and if you file for bankruptcy it may affect your child's eligibility for certain loans. The rules for federal loans and private loans are different.

Private student loans, like any other credit after bankruptcy, will depend greatly on the circumstances that surround the bankruptcy. If the student did not file bankruptcy their applications for private loans should not be affected, unless the parent is required as a co-signor. If the parent is required as a co-signor and they filed for bankruptcy they should discuss the circumstances of the bankruptcy with the potential lender. Many private loans will exclude co-signors or borrowers who have filed for bankruptcy within the last seven years no matter what the circumstances. There are no laws that require private companies to loan money in these circumstances and each company will assess their own risk differently.

Federal student loans are governed by specific bankruptcy anti-discrimination rules. Under 11 USC 525(c), lenders backed by the federal student loan programs cannot deny a student a loan based on the student previously filing for bankruptcy. This means that Stafford Loans, which are federal student loans to the student directly, will not be affected by a bankruptcy of either the student or the parents (but can be affected if their are delinquencies or defaults on previous student loans).

PLUS loans, however, (which stands for Parent Loans for Undergraduate Students) can be denied based on negative credit history of the parents. A bankruptcy within the last five years would be considered adverse credit history. If parents apply for and are turned down for PLUS loans students may qualify for increased Stafford loans, which could help make up some of the difference.

For more information read this article on Bankruptcy and Financial Aid.

Thank you to Larry Dannenberg and College Solutions for pointing us to this information.

Should I Pay My Student Loan with a Credit Card?

Under Section 523(8) of the Bankruptcy Code student loans are excluded from discharge in bankruptcy. This means that in most cases after you go bankrupt (Chapter 7 or Chapter 13) you will still owe your student loans.

So you have a great idea, right? Why not pay your student loans with a credit card, which you could then discharge? WRONG!

Credit card debts can be discharged except for a few exceptions. For example, credit card debt is non-dischargeable when the funds were obtained with the intention of filing bankruptcy, or otherwise fraudulently (like filing a false application).

Furthermore, if a credit card is used to pay a non-dischargeable debt like a student loan or taxes, that portion of the debt will be treated the same as the original debt.

This means that even if the credit card company doesn't object to the discharge, they still might be able to pursue you after the discharge, just like a student loan company could (although best practice for the credit card company would be to object prior to the discharge).

Even worse, if the bankruptcy court found that you were attempting to commit a fraud upon the Court by moving this debt, the Court could deny your discharge altogether.

If you are looking for creative ways to pay down your student loans you should consult with an attorney regarding your options.

New Income Based Repayment Program May Reduce Student Loan Payments

Although student loan debt can almost never be discharged trough bankruptcy, a new program which went into effect on July 1, 2009 called Income-Based Repayment (IBR) may provide some relief for those who cannot afford high monthly federal student loan payments.

The U.S. Bankruptcy code at 11 U.S.C. 523(a)(8) specifically deems student loan obligations as “nondischargeable debt” (i.e., debt that cannot be discharged through a bankruptcy filing) absent a showing of “undue hardship”, which, as contemplated by the code, is a nearly impossible standard to prove.

Fortunately, the IBR program may provide some relief. IBR cannot be used to obtain an outright discharge of student loan debt, but it can help borrowers keep their loan payments affordable with payment caps based on income and family size; often capping IBR loan payments at less than 10 percent of their income household income. IBR will also forgive remaining debt, if any, after 25 years of qualifying payments.

IBR is available to federal student loan borrowers in both the Direct and Guaranteed (or FFEL) loan programs, and covers most types of federal loans made directly to students, but not those made to a student’s parent.

The IBR program requires that participants be qualified based on income, and to be eligible, it would take more than 15 percent of your income above 150% of federal poverty level to pay off your loans on a standard 10-year payment plan. IBR uses a sliding scale to determine your adjusted federal loan repayment amounts. If you earn below 150% of the federal poverty level for your family size, your required loan payment will be $0. If you earn more, your loan payment will be capped at 15 percent of your income above that amount. In most cases, that figure works out to less than 10 percent of your total income. A useful calculator to determine your eligibility is available here.

In some situations, your reduced payment under IBR may not cover the interest on your loans. If so, the government will pay that interest on your Subsidized Stafford Loans for your first three years in IBR. After three years and for other loan types, the interest will be added to the total amount you owe. While your debt may grow if your IBR calculated payments are calculated to be lower than the monthly interest, anything you still owe after 25 years of qualifying payments will be forgiven.

While student loan debt remains essentially nondischargeable, the IBR program can be used obtain meaningful relief from individuals seeking to reduce student loan payments to qualified participants.

If you are struggling with student loan debt, mortgage debt, credit card and consumer loan debt, the IBR program can be one part of a comprehensive legal strategy to address and resolve financial problems.