Student Loan Management Attorneys in Orlando, Florida

The New Attestation Process Could Be Your Key To Discharging Student Loans In Bankruptcy

By: Branson Ainsworth PLLC

For decades, discharging federal student loans in bankruptcy felt like trying to break through a concrete wall with your bare hands. The legal standard was brutal, the litigation was expensive, and the government's default position was simply to fight you every step of the way. For most borrowers, it wasn't worth attempting.

That has changed — and a new attestation process is at the heart of why.

What Is the Attestation Process, and Why Does It Matter?

In 2022, the Department of Justice, in partnership with the Department of Education, issued new guidelines that fundamentally reshape how the government evaluates requests to discharge federal student loans in bankruptcy. At the center of this new approach is a straightforward but powerful tool: an attestation form.

Rather than forcing borrowers to endure costly depositions, lengthy discovery battles, and years of litigation, the new guidelines allow a Justice Department attorney to assess your case based on a sworn attestation form you complete detailing your income and expenses. If the numbers show that you have no money left over after meeting reasonable and necessary living expenses — and other key factors are met — the government can consent to discharge.

This is a seismic shift. Previously, even borrowers who clearly couldn't afford their loans faced an uphill legal battle. Now there is a defined, accessible process that gives qualified borrowers a realistic path to relief.

What Does the Government Look At?

When reviewing your attestation, Justice Department attorneys will evaluate and you must meet each three core areas:

1. Your Present Ability to Pay Using IRS standards alongside the information you provide, attorneys will assess whether your monthly expenses genuinely exceed your income. In plain terms: is there anything left over to pay the loan? If not, that weighs heavily in favor of discharge.

2. Your Future Ability to Pay This isn't just about where you stand today. Factors like approaching retirement age, a disability, a chronic illness, the lack of a completed degree, or being locked into extended repayment status all inform whether your financial situation is unlikely to improve. If the evidence suggests it won't, that supports a discharge recommendation.

3. Good Faith Efforts to Repay The government will look at whether you made reasonable efforts — contacting your loan servicer, exploring income-based repayment options, and genuinely trying to manage your debt. You don't need a perfect payment history or even proof that you made any payments, but you do need to show you haven't simply ignored the obligation and that in good faith you tried to repay your student loans.

A Critical Change in How Repayment Is Measured

One of the most consequential — and least discussed — aspects of the new guidelines involves how your repayment burden is calculated. In the past, the government would point to income-driven repayment plans, which can reduce a monthly payment to as little as zero, as evidence that a borrower could afford their loans. That argument often killed discharge cases.

Under the new guidance, Justice Department attorneys are directed to compare your income against the standard 10-year repayment amount, not an artificially low income-driven payment. This change is enormous.

Consider a borrower earning $40,000 per year who owes $150,000 in federal student loans. Under an income-driven plan, their payment might be around $90 per month. Under a standard repayment plan at 6% interest, that same loan demands roughly $1,670 per month. Under the new guidelines, the government can now recommend discharge for that borrower — something that simply was almost impossible before.

Why You Cannot Afford to Wait

If you are struggling with federal student loans right now, urgency matters for two important reasons.

First, the collection consequences of default are severe. The federal government has collection powers that no private creditor can match. A defaulted loan can be accelerated, meaning the entire balance becomes due immediately. From there, the government can withhold your tax refunds, garnish your Social Security benefits, and seize pension payments — all without filing a lawsuit.

Second, this window of opportunity may not last. The new attestation guidelines represent a policy decision. Policies change. There is no guarantee this more accessible path to discharge will remain available indefinitely. Borrowers who act now have an opportunity that did not exist for twenty five years and may not exist in the future. We just don’t know.

Bankruptcy Provides Immediate Protection

Even while a discharge proceeding is underway, filing for bankruptcy provides critical breathing room through what is known as the automatic stay — a legal injunction that immediately stops all collection activity from all creditors, including the federal government. This halts wage garnishments, tax refund seizures, lawsuits, and any other collection efforts the moment your bankruptcy case is filed.

For borrowers who are at or near default, the automatic stay alone can be a lifeline while the discharge process moves forward.

How BransonLaw Can Help — While Others Step Back, We Step Forward

The new guidelines are encouraging, but navigating the bankruptcy process and the student loan discharge process still requires experienced legal guidance. The Department of Justice and the Department of Education represent the interests of the United States government — not yours. Having knowledgeable legal representation gives you the best chance of presenting your case effectively and ensuring your attestation accurately reflects your financial reality.

We are aware that many law firms have chosen not to pursue the new attestation process for their clients — whether due to unfamiliarity with the guidelines, uncertainty about outcomes, or simply a reluctance to take on the federal government. At Branson Ainsworth, we have made the opposite choice. We believe this process represents a genuine and meaningful opportunity for borrowers who are suffering, and we are actively moving forward with it on behalf of our clients.

Our team of experienced bankruptcy attorneys has helped clients successfully discharge over $2,000,000 in federal student loans through the attestation process.

We are located in Orlando, Florida, and handle bankruptcy cases throughout the state. If you live, own property, or operate a business in Florida and are struggling with student loan debt, we want to hear from you.