This is the second in a two-part article on the debt burden America's students face. Read Part 1 here.
The lending business is heavily stacked against student borrowers. Bigger players can borrow for almost nothing, and if their investments don't work out, they can put their corporate shells through bankruptcy and walk away. Not so with students. Their loan rates are high and if they cannot pay, their debts are not normally dischargeable in bankruptcy. Rather, the debts compound and can dog them for life, compromising not only their own futures but the economy itself.
"Students should not be asked to pay more on their debt than they can afford," said Donald Trump on the presidential campaign trail in October 2016. "And the debt should not be an albatross around their necks for the rest of their lives." But as Matt Taibbi points out, a number of proposed federal changes will make it harder, not easier, for students to escape their debts, including wiping out some existing income-based repayment plans, harsher terms for graduate student loans, ending a program to cancel the debt of students defrauded by ripoff diploma mills, and strengthening "loan rehabilitation" -- the recycling of defaulted loans into new, much larger loans on which the borrower usually winds up paying only interest and never touching the principal.
The agents arranging these loans can get fat commissions of up to 16 percent, an example of the perverse incentives created in the lucrative student loan market. Servicers often profit more when borrowers default than when they pay smaller amounts over a longer time, so they have an incentive to encourage delinquencies, pushing students into default rather than rescheduling their loans. It has been estimated that the government spends $38 for every $1 it recovers from defaulted debt. The other $37 goes to the debt collectors.
The securitization of student debt has compounded these problems. Like mortgages, student loans have been pooled and packaged into new financial products that are sold as student loan asset-backed securities (SLABS). Although a 2010 bill largely eliminated private banks and lenders from the federal student loan business, the "student loan industrial complex" has created a $200 billion market that allows banks to cash in on student loans without issuing them.
About 80 percent of SLABS are government-guaranteed. Banks can sell, trade or bet on these securities, just as they did with mortgage-backed securities; and they create the same sort of twisted incentives for loan servicing that occurred with mortgages.
According to the Consumer Financial Protection Bureau (CFPB), virtually all borrowers with federal student loans are currently eligible to make monthly payments indexed to their earnings. That means there should be no defaults among student borrowers. Yet one in four borrowers is now in default or struggling to stay current. Why? Student borrowers are reporting widespread mishandling of accounts, unexplained exorbitant fees and outright deception as they are bullied into default, tactics similar to those that homeowners faced in the foreclosure crisis.
The reports reveal a repeat of the abuses of the foreclosure fraud era: Many borrowers are unable to obtain basic information about their accounts, are frequently misled, are surprised with unexpected late fees, and often are pushed into default. Servicers lose paperwork or misapply payments. When errors arise, borrowers find it difficult to have them corrected.
Abuses and fraud in handling student loans have brought the Education Department's loan contractors under fire. In January 2017, the Consumer Financial Protection Bureau sued Navient, one of the largest contractors, alleging that the company "systematically and illegally [failed] borrowers at every stage of [student loan] repayment."
Getting a Fair Deal
How to avoid these pitfalls? Students first need to learn their rights. According to a new survey reported in November 2017, students are often in the dark about key details of their debt and the repayment options available to them. To get started, see here and here.
Under the Borrower's Defense to Repayment program, you can get your loans completely discharged if you can prove they were based on deception or fraud. That is one of the alternatives the Trump administration wants to take away, so haste is advised; but even if it is taken away, fraud remains legal grounds for contract rescission. A class action for treble damages against offending institutions could provide significant financial relief.
Students also have greater bankruptcy options than they know. While current bankruptcy law exempts education loans and obligations from eligibility for discharge, an exception is made for "undue hardship." The test normally used is that paying the loan will prevent the borrower from sustaining a minimum standard of living, his or her financial situation is unlikely to change in the future, and he or she has made a good faith effort to pay the loans. According to a 2011 study, at least 40 percent of borrowers who included their student loans in their bankruptcy filings got some or all of their student debt discharged.
But because they think there is no chance, they rarely try. Only about 0.1 percent of consumers with student loans attempted to include them in their bankruptcy proceedings. (Getting a knowledgeable attorney is advised.)