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Student loans
Brunner test
The Brunner test is the most common framework courts use to decide whether repaying a student loan would be an undue hardship, the standard a debtor must meet to discharge it. It asks about the debtor's present finances, likely future and past efforts to repay. 1 2
Talk to a lawyerHow it works
The name comes from a 1987 decision of the federal appeals court for the Second Circuit, Brunner v. New York State Higher Education Services Corp. The court must find all three parts in the table. 1
Not every court uses it. Some apply a totality of circumstances test, which looks at the debtor's financial resources, reasonably necessary living expenses and any other relevant facts. The Justice Department notes that the Eighth Circuit has called that test less restrictive than Brunner, but also said the difference may not be that significant. 1
The Justice Department's 2022 guidance for federal student loan cases applies in both kinds of courts. Its attorneys look at whether the debtor can pay now, whether that is likely to continue, and whether the debtor has tried in good faith to repay. 1 3
What it covers
| Part | What the debtor must show |
|---|---|
| Present 1 | The debtor cannot presently maintain a minimal standard of living if required to repay the loan 1 |
| Future 1 | Circumstances indicate the situation is likely to persist for a significant portion of the repayment period 1 |
| Past 1 | The debtor has made good faith efforts to repay the loan 1 |
General description. How a court applies the test depends on the facts and on the law of its circuit.
Common questions
Where is the test applied?
In an adversary proceeding, the separate lawsuit a debtor must file inside the bankruptcy case to seek a student loan discharge. 3
Is there a way to pass the Brunner test?
Does missing payments in the past mean I fail the good faith part?
Under the Justice Department guidance, past non-payment does not automatically disqualify a debtor. 3
Sources
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