In this video, I talk with Josh Cohen, a nationally known student loan lawyer, about a question people ask over and over:
“Can student loans really be discharged in bankruptcy, wiped away forever?”
Josh explains how the current guidance started under one administration, was released under another, and still stands today. He breaks down the new attestation process, the very high success rates, and what it looks like in real life when a borrower files the required “mini lawsuit” inside a bankruptcy case.
We also talk through how to decide between income based repayment and bankruptcy, and when it can make sense to reopen an old bankruptcy to go after student loans that survived the first time.
Frequently Asked Questions
- Can federal student loans really be discharged in bankruptcy now?
- Did the law change, or is this something else?
- What kind of success rates are people seeing with this new process?
- How does the checklist and attestation process work in a real case?
- What is an adversary proceeding, and is it really a lawsuit against the government?
- Do I have to be in bankruptcy to use this student loan discharge process?
- How do I decide between income driven repayment and bankruptcy discharge?
- Can I reopen an old bankruptcy to try to wipe out my student loans?
- What is special about November 22, 2022?
- Is this process affordable for regular people, or only for those with money?
FAQ: Can federal student loans really be discharged in bankruptcy now?
Yes. Federal student loans can be discharged in bankruptcy, either fully or partially, under the current guidance. When we talk about “discharge,” we mean gone forever, not a short term pause.
Josh shares that clients have already seen millions of dollars in student loan balances wiped out through this process. In his own practice, the total is close to five million dollars in discharges. Not every borrower gets a full discharge, but many see a large portion of their loans erased.
FAQ: Did the law change, or is this something else?
The underlying bankruptcy law did not change. The Brunner test still exists and still controls when courts can discharge student loans.
What changed is how the government applies that law. The Department of Education and the Department of Justice created detailed guidelines and a checklist. If a borrower fills out the attestation, provides the requested information, and meets the criteria, the government agrees to a discharge instead of fighting it.
So this is a change in process, not a change in statute. The law is the same. The path through the law is much clearer.
FAQ: What kind of success rates are people seeing with this new process?
When the guidance came out, the government said it wanted a 75 to 80 percent success rate, counting both full and partial discharges.
According to the stats Josh has seen, they are hitting that goal. Around 80 percent of borrowers who file under this process are getting some kind of discharge, which means about a 20 percent “no” rate.
Before this guidance, fewer than one percent of borrowers with student loans in bankruptcy even tried to file an adversary proceeding. The door was technically there, but almost nobody walked through it. Now the door is open, and the odds are much more favorable for people who fit the criteria.
FAQ: How does the checklist and attestation process work in a real case?
Inside the bankruptcy case, your lawyer files an adversary proceeding against the Department of Education. That is the formal step that asks the court to look at your student loans. On top of that, your lawyer completes an attestation form. Think of this as a detailed questionnaire that covers your income, expenses, family situation, history with the loans, and other factors that relate to the Brunner test.
- The adversary proceeding is filed with the court.
- The attestation itself is not filed in the public docket. It is sent directly to the Department of Justice.
- DOJ reviews the attestation, makes a recommendation to the Department of Education, and then comes back with a proposal.
In Josh’s experience, about 9.9 times out of 10, the answer that comes back is something he and his client can work with. In the rare case where it is not ideal, they still have room to negotiate.
FAQ: What is an adversary proceeding, and is it really a lawsuit against the government?
Yes. Technically, it is a lawsuit, but it sits inside the bankruptcy case. Lawyers call it a “mini lawsuit.”
- You already have a bankruptcy case open.
- Your attorney files an adversary complaint within that case, naming the Department of Education as the defendant.
- The Department of Justice attorneys appear in the case to represent the government’s interests.
From there, your lawyer sends in the attestation, DOJ reviews it, and a recommendation goes back to the Department of Education. Then the government either agrees to a full discharge, offers a partial discharge, or explains why it does not agree.
FAQ: Do I have to be in bankruptcy to use this student loan discharge process?
Yes. This process happens inside a bankruptcy case. You cannot file the attestation and adversary proceeding on your own without a bankruptcy as the container.
This is why Josh starts every consult by looking at the whole picture. Some people need bankruptcy anyway because of foreclosure, credit card debt, or other issues. For them, using the student loan process inside that bankruptcy can be a powerful additional benefit.
Other people might qualify for very low payments under income driven repayment and be on track for forgiveness without bankruptcy. In those situations, bankruptcy may not make sense.
FAQ: How do I decide between income driven repayment and bankruptcy discharge?
Josh describes this as offering clients a full buffet and letting them choose. Bankruptcy is one option on the table, not the only one.
- Can you qualify for an income driven repayment plan with a payment you can handle, possibly even a zero dollar payment?
- Do you work for a government or nonprofit employer who could give you Public Service Loan Forgiveness in as little as ten years?
- How far away are you from forgiveness under current rules if you stay in an income driven plan?
- Are you already heading toward bankruptcy for other reasons, such as a home in foreclosure or overwhelming unsecured debt?
- Would a bankruptcy today, combined with the student loan process, clear your other debt and significantly reduce or erase your student loans sooner than income based options?
For someone five years from forgiveness, an income driven plan might be the better path. For someone fifteen years away who already needs bankruptcy for other reasons, using this process inside bankruptcy may offer more meaningful relief.
FAQ: Can I reopen an old bankruptcy to try to wipe out my student loans?
Often, yes. There is no firm rule in the Bankruptcy Code that says you only have a short window to reopen a case. Josh has successfully reopened cases that were seven or eight years old.
He treats each one as a two part question. First, can the court reopen the case. Second, will the Department of Justice and Department of Education honor the current attestation process for that older bankruptcy.
This is where local practice matters. Before he files, Josh often calls the DOJ attorney in that district to ask how they handle older cases. If they will work with him, he moves forward. If not, he does not want to waste a client’s time or money.
FAQ: What is special about November 22, 2022?
When this attestation program came out, the government said that to use the process, the bankruptcy technically needed to still be active as of November 22, 2022. If your case closed before that date, you might not fit under the clean rule for the checklist.
At the same time, the word “might” matters. Josh has had clients whose cases closed before that date and still received help. Some DOJ attorneys treat the date as a bright line. Others are more flexible.
The safe way to handle this is to have an experienced student loan lawyer reach out to the local DOJ contact and ask how that office applies the rule before you invest in reopening a case.
FAQ: Is this process affordable for regular people, or only for those with money?
One of the reasons this guidance matters so much is that it makes the process more efficient. Less guesswork means fewer court fights and fewer billable hours for lawyers.
That efficiency translates into lower costs for borrowers. It becomes possible for more people to hire a lawyer, file the adversary proceeding, and go through the attestation without facing years of litigation.
For many borrowers, especially those already filing bankruptcy, this can be a realistic path to cleaning up their student loans instead of a theoretical right that nobody can afford to use.
