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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
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Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I filed an advesary proceeding to discharge student loans.

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I filed an advesary proceeding to discharge student loans. There are three agencies involved only one answered my complaint. How do I file a motion to discharge their loans since they missed the thirty day deadline? It is now 60 days. I am pro se.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 5 years ago.

I'm impressed that you've gotten this far pro se. Congratulations!

 

Re the two nonappearing lenders, you would file motion for entry of default judgment, per Fed. R. Civ.Proc. 55, The pleadings for the motion should prove up the elements necessary for the court to discharge a student loan.

 

Re the appearing lender, if you do not intend to conduct discovery, then you could file a motion for judgment on the pleadings (Rule 12(c)), or for summary judgment (Rule 56).

 

Similarly, unless your adversary complaint contains sufficient evidentiary facts to make a prima facie case for the judge, then you will have to prepare pleadings and evidence with your motion sufficient to prove the elements for a discharge. Also, there are rules about formatting a summary judgment motion, most important is the submission of a "Statement of Genuine Issues," which requires a particular format, and as far as I'm aware, no fee sample exists anywhere online. However, you can purchase a practice guide at: http://ruttergroup.com/cartfcpt.htm.

 

Hope this helps.

 

Terms and Conditions: By your continuing in this conversation with me, or by your clicking “Accept”, you are expressly agreeing to all of the following: (1) our communication is for entertainment purposes only; (2) you are not consulting me in my professional capacity as an attorney; (3) you do not seek to establish an attorney-client relationship with me, nor do I with you; (4) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises (and you may not use our communication to avoid taxpayer penalties imposed by the U.S. Dept. of Treasury); (5) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf, but rather is made in genuine admiration and respect for my desire to help others. If you do not agree with these terms and conditions, then you must advise me immediately.

Expert:  socrateaser replied 5 years ago.

I'm impressed that you've gotten this far pro se. Congratulations!

 

Re the two nonappearing lenders, you would file motion for entry of default judgment, per Fed. R. Civ.Proc. 55, The pleadings for the motion should prove up the elements necessary for the court to discharge a student loan.

 

Re the appearing lender, if you do not intend to conduct discovery, then you could file a motion for judgment on the pleadings (Rule 12(c)), or for summary judgment (Rule 56).

 

Similarly, unless your adversary complaint contains sufficient evidentiary facts to make a prima facie case for the judge, then you will have to prepare pleadings and evidence with your motion sufficient to prove the elements for a discharge. Also, there are rules about formatting a summary judgment motion, most important is the submission of a "Statement of Genuine Issues," which requires a particular format, and as far as I'm aware, no fee sample exists anywhere online. However, you can purchase a practice guide at: http://ruttergroup.com/cartfcpt.htm.

 

Hope this helps.

 

Terms and Conditions: By your continuing in this conversation with me, or by your clicking “Accept”, you are expressly agreeing to all of the following: (1) our communication is for entertainment purposes only; (2) you are not consulting me in my professional capacity as an attorney; (3) you do not seek to establish an attorney-client relationship with me, nor do I with you; (4) you will not rely on anything I say and you will obtain appropriate legal counsel via a traditional/office consultation with an attorney licensed to practice in the jurisdiction where your legal issue arises (and you may not use our communication to avoid taxpayer penalties imposed by the U.S. Dept. of Treasury); (5) by communicating with me in this public forum you are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed. You further separately declare that any payment made by you is not consideration for this contract, nor offered for any services rendered by me on your behalf, but rather is made in genuine admiration and respect for my desire to help others. If you do not agree with these terms and conditions, then you must advise me immediately.

Customer: replied 5 years ago.
On the 1) statement- by pleadings are you saying to state the same facts and evidence that i would present to the court during the trial but in a motion instead(Brunnertest)?2)the appearing lender- I have sent disclosure- what is the difference and nature of discovery, motion for judgement for pleadings and summary judgement? 3) Brunner test- I will be 60 soon My evidence is income for last three years-health care cost for 2008 and 2009 standard of living average for one person in sacramento ca which is 64% more than what i make. Social Security my only retirement is 1200 amonth and a must at 65- healthcare. I am a massage therapist and those days are numbered-diabetic and age.Proof of intent to pay-payments before I broke my wrist 2008 and garnishment 2009-Talley vs. Ca.Student Aid opinion says that a garnismant creates a hardship in the ability to pay.
Expert:  socrateaser replied 5 years ago.

1. Yes.

2. Discovery is interrogatories, subpoenas, notice for production, depositions, requests for admissions, designed to obtain evidence to submit at trial and prove the case; judgment on the pleadings is where the original complaint is so complete in the submission of admissible evidence, that in the light most favorable to the defendant, plaintiff would demonstrate that no genuine issue of material fact exists and so plaintiff is entitled to judgment as a matter of law.

3. (a) you need to be able to authenticate this statistical evidence, because it is hearsay. You may need an expert witness, such as an economist to testify, and to submit a declaration for the summary judgment as to the statistical facts; (b) you can testify to your current medical condition, but not to your life expectancy -- again, you would need an expert witness, such as an actuary; (c) Student Aid personnel's opinion that garnshment creates a hardship is inadmissible because it is layperson opinion. You would need the person who stated that opinion to be qualified as an expert -- but, no one is really an expert on what creates a hardship -- that's a legal question for the trier of fact/judge. You can testify in declaration that it's a hardship because you can't pay your bills, etc., but I can't think of any relevance to the student aid's opinion.

 

 

Customer: replied 5 years ago.
3 a) the evidence comes from the IRS National Standard of living and the U.S. Trustee. b) The brunner test point 2 says "that additional circumstances exsist indicating that this state of affairs is likely to persist for a significant portion of the repayment (which is ten years) period of the student loans" I will be 70 and during that time my health and income are not going to change for the better-I will be on social security and probably on some public assistance.My evidence is my medical recoreds and my social security summary 3) This was an advesary proceeding for discharge of student loans in the Oregon crt. The decision was not a lay person it came from the judge's opinion in the case Frank R. Alley III Thank you for the compliment and the exercise I think I will need it. My hearing is on 7/15.
Expert:  socrateaser replied 5 years ago.

3 (a) If you can get the court to take judicial notice of the statistical facts, that would be good. If you can't, then you will need an expert; (b) Medical records can prove an injury. They can't prove that the injury will necessarily persist -- only a physician can do that;

 

Re the decision, I haven't read it, so I can't really comment.

 

By the time you're done with this, you will be able to sit for the bar exam.

socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33908
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and 3 other Bankruptcy Law Specialists are ready to help you
Customer: replied 5 years ago.
Thanks for everything-The medical condition is diabetes not an injury I counldn't have done what I have without great people like you on justanswer.com

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