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The Student Loan Attestation Process, Step by Step

By Brian D. Shapiro

Since November 2022, borrowers with federal student loans have had a clearer path to discharge in bankruptcy: the Justice Department's attestation process. Here is how a case moves from start to finish.

Step 1: You're in a bankruptcy case

The student loan request is made inside a bankruptcy case. You may be filing one now, already be in one, or have a case that closed. In many situations, a closed case can be reopened to file the student loan request.

Step 2: Your attorney files an adversary proceeding

An adversary proceeding is a separate lawsuit within your bankruptcy case. It asks the court to rule that repaying your student loans would impose an "undue hardship" on you and your dependents. The Department of Education is named as a defendant, and the Justice Department represents it.

Step 3: You complete the attestation

The attestation is a detailed form you sign under penalty of perjury. It covers:

  • Your household, income and assets
  • Your monthly expenses
  • Your education, work history and health
  • Your history of paying, or trying to pay, your loans

Your expenses are compared with standard expense amounts published by the IRS. Accuracy matters: the form is sworn, and the government may ask for documents to support it.

Step 4: The government reviews it

Justice Department attorneys, working with the Department of Education, apply three questions: Can you afford to pay now? Is that likely to change? Have you acted in good faith? (Our post on the three questions explains each one.)

Step 5: The government states its position

The government may recommend full discharge, recommend partial discharge, or decline to support discharge. If it recommends discharge, the parties prepare an agreed judgment for the court.

Step 6: The judge decides

The bankruptcy judge makes the final decision. The government's recommendation carries real weight, but it is the court's ruling that discharges the debt.

How long does it take?

Every case is different. Many cases involving loans held by the Department of Education resolve within several months to about a year after the adversary proceeding is filed.

Talk to us first

The first conversation is free. Call 702-386-8600 to find out whether the attestation process is a fit for your loans.

This post is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. The Law Office of Brian D. Shapiro, LLC is a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.

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