A student loan, under Bankr. Code
523(a)(8) may not be discharged in bankruptcy, without commencing an adversary proceeding/lawsuit in bankruptcy court
against the creditor, so as to prove that the debtor will suffer an "undue hardship" unless the loan is discharged.
However, in United Student Aid Funds, Inc. v. Espinosa,
___ U.S. ___, 130 S.Ct. 1367,
the U.S. Supreme Court ruled that a student loan provided for in a debtor's Chapter 13
plan was discharged by the final order of the court, because even though it was legal error to do so, the creditor had actual notice
of the debtor's bankruptcy plan, and the creditor waited too long to move to set aside the court's final discharge order.
Because your Chapter 7 was discharged along with your student loan debt, the court effectively committed the same legal error as occurred in Espinosa.
And, since more than one year has passed since the discharge was entered, the creditor can no longer claim that you committed a fraud in scheduling the debts as dischargeable. This leaves the creditor in exactly the same position as the debtor in Espinosa
, i.e., the only available option is to try to set aside the judgment as void.
, the creditor made no effort to set aside the judgment for six years. Your facts suggest that only three years have passed. I don't know if the creditor in your case had actual notice, however, I assume that if the creditor was listed in the schedule matrix, that it was notified by the clerk of the bankruptcy court, and therefore it had notice of the claim for discharge in your Chapter 7. On balance, it seems that you are entitled to enforce the discharge against the creditor, its assignee debt collection agencies
, if any, and the various credit reporting agencies (Equifax, Experian, Transunion, etc.). In order to do this you must file a motion for enforcement in bankruptcy court, and allow the creditor to try to have your bankruptcy discharge set aside.
This is not an exercise for a layperson. If your original bankruptcy attorney won't return your calls (which, frankly, and regrettably, is rather typical of consumer bankruptcy lawyers), then you need to hire a new lawyer to determine if there are any additional risks, that I may have missed, and if not, then to enforce your rights under the Chapter 7 discharge order.
For a competent referral in your jurisdiction, see this link
. Note: You don't want just any bankruptcy lawyer. You want someone with appellate court experience, because this could turn into a bit of a "snowstorm."
Hope this helps, and good luck to you.