Eradicating the “Discharge by Declaration” for Student Loan Debt in Chapter 13

The many benefits of higher education come with a cost. Armed with knowledge financed by government-backed loans, today’s students enter the workforce burdened by debt. For many, other debts follow, causing some students to file bankruptcy soon after graduation. In this note, Kevin Driscoll examines the viability of the “discharge by declaration”-a tactic used by bankruptcy lawyers to circumvent the adversarial process and obtain a discharge of student loan debt. Despite the apparent problems with this tactic, a majority of courts decline to review the propriety of a discharge obtained through such means. In upholding such discharges, the courts claim that creditors’ due process rights are satisfied, and they cite res judicata and collateral estoppel as excuses. Examining the various rationales underlying the majority stance, this note questions whether the discharge by declaration is a legally, and ethically, sound method of obtaining relief for overburdened student debtors.* J.D. 2000, University of Illinois at Urbana-Champaign; A.B. 1992, University of Illinois at Urbana-Champaign; member University of Illinois Law Review, 1999-2000.

The full text of this Note is available to download as a PDF.