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The Trillion-Dollar Lie
Universities built palaces and financiers made fortunes in part through a lie: that student loans can't be discharged in bankruptcy. But a series of court cases is helping unravel the scam
Stefanie Gray explains why, as a teenager, she was so anxious to leave her home state of Florida to go to college.
“I went to garbage schools and I’m from a garbage low-income suburb where everyone sucks Oxycontin all day,” she says. “I needed to get out.”
She got into Hunter College in New York, but both her parents had died and she had nowhere near enough to pay tuition, so she borrowed. “I just had nothing and was poor as hell, so I took out loans,” she says.
This being 2006, just a year after the infamous Bankruptcy Bill of 2005 was passed, she believed news stories about student loans being non-dischargeable in bankruptcy. She believed they would be with her for life, or until they were paid off.
“My understanding was, it’s better to purchase 55 big-screen TVs on a credit card, and discharge that in a court of law, then be a student who’s getting an education,” she says.
Still, she asked for financial aid: “I was like, ‘My parents are dead, I'm a literal fucking orphan, I have no siblings. I'm just taking out this money to put my ass through school.”
Instead of a denial, she got plenty of credit, including a slice of what were called “direct-to-consumer” loans, that came with a whopping 14% interest rate. One of her loans also came from a company called MyRichUncle that, before going bankrupt in 2009, would briefly become famous for running an ad disclosing a kickback system that existed between student lenders and college financial aid offices.
Gray was not the cliché undergrad, majoring in intersectional basket-weaving with no plan to repay her loans. She took geographical mapping, with the specific aim of getting a paying job quickly. But she graduated in the middle of the post-2008 crash, when “53% of people 18 to 29 were unemployed or underemployed.”
“I couldn't even get a job scrubbing toilets at a local motel,” she recalls. “They told me straight up that I was over-educated. I was like, “Literally, I'll do your housekeeping. I don't give a shit, just let me make money and not get evicted and end up homeless.”
The lender Sallie Mae at the time had an amusingly loathsome policy of charging a repeating $150 fee every three months just for the privilege of applying for forbearance. Gray was so pissed about having to pay $50 a month just to say she was broke that she started a change.org petition that ended up gathering 170,000 signatures.
She personally delivered those to the Washington offices of Sallie Mae and ended up extracting a compromise out of the firm: they’d still charge the fee, but she could at least apply it to her balance, as opposed to just sticking it in the company’s pocket as an extra. This meager “partial” victory over a student lender was so rare, the New York Times wrote about it.
“I definitely poked the bear,” she says.
Gray still owed a ton of student debt — it had ballooned from $36,000 to $77,000, in fact — and collectors were calling her nonstop, perhaps with a little edge thanks to who she was. “They were telling me I should hit up people I know for money, which was one thing,” she recalls. “But when they started talking about giving blood, or selling plasma… I don’t know.”
Sallie Mae ultimately sued Gray four times. In doing so, they made a strange error. It might have slipped by, but for luck. “By the grace of God,” Gray said, she met a man in the lobby of a courthouse, a future state Senator named Kevin Thomas, who took a look at her case. “Huh, I’ve got some ideas,” he said, eventually pointing to a problem right at the top of her lawsuit.
Sallie Mae did not represent itself in court as Sallie Mae. The listed plaintiff was “SLM Private Credit Student Loan Trust VL Funding LLC.” As was increasingly the case with mortgages and other forms of debt, student loans by then were typically gathered, pooled, and chopped into slices called tranches, to be marketed to investors. Gray, essentially, was being sued by a tranche of student loan debt, a little like being sued by the coach section of an airline flight.
When Thomas advised her to look up the plaintiff’s name, she discovered it wasn’t registered to do business in the State of New York, which prompted the judge to rule that the entity lacked standing to sue. He fined Sallie Mae $10,000 for “nonsense” and gave Gray another rare victory over a student lender, which she ended up writing about herself this time, in The Guardian.
Corporate creditors often play probabilities and mass-sue even if they don’t always have great cases, knowing a huge percentage of borrowers either won’t show up in court (as with credit card holders) or will agree to anything to avoid judgments, the usual scenario with student borrowers.
“What usually happens in pretty much 99% of these cases is you beg and plead and say, ‘Please don't put a judgment against me, I'll do anything… because a judgment against you means you're not going to be able to buy a home, you’re not going to be able to do basically anything involving credit for the next 20 years.”
Gray, however, was “scrappy” and didn’t “take any shit,” and won. She didn’t establish any particularly important precedent with her case, except that student lenders can, in fact, lose in court. This It bleeds, we can kill it moment turned out to matter more than it seemed at the time.
The passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was a classic demonstration of how America works, or doesn’t, depending on your point of view. While we focus on differences between Republicans and Democrats, it’s their uncanny habit of having just a sliver of enough agreement to pass crucial industry-friendly bills that really defines the parties.
Whether it’s NAFTA, the Iraq War authorization, or the Obama stimulus, there are always just enough aisle-crossers to get the job done, and the tally usually tracks with industry money with humorous accuracy. In this law signed by George Bush, sponsored by Republican Chuck Grassley, and greased by millions in donations from entities like Sallie Mae, the crucial votes were cast by a handful of aisle-crossing Democrats, including especially the Delawareans Joe Biden and Tom Carper. Hillary Clinton, who took $140,000 from bank interests in her Senate run, had voted for an earlier version.
Party intrigue is only part of the magic of American politics. Public relations matter, too, and the Bankruptcy Bill turned out to be the poster child for another cherished national phenomenon: the double-lie.
In our country the surface political debate is often transparently simplistic and absurd, but serves a purpose by keeping the public’s eyes averted from more devastating underlying realities. With bankruptcy, Bush set the cover story. “In recent years too many people have abused the bankruptcy laws,” Bush declared at the signing ceremony. “They walked away from debts even when they had the ability to repay them.”
News outlets similarly stressed that the bill targeted bad people, deadbeats who had money and not only stiffed Visa and Mastercard, but maybe their kids, too. NBC spoke of bankruptcy as “the last refuge of gamblers, impulsive shoppers, divorced or separated fathers avoiding child support, and multimillionaires who buy mansions in states with liberal homestead exemptions.”
Years later, pundits still debate whether there really ever was an epidemic of debt-fleeing deadbeats, or whether legislators in 2005 who just a few years later gave “fresh starts” to bankrupt Wall Street banks ever cared about “moral hazard,” or if it’s fair to cut off a single Mom in a trailer when Donald Trump got to brag about “brilliantly” filing four commercial bankruptcies, and so on.
In other words, we argue the why of the bill, but not the what. What did that law say, exactly? For years, it was believed that it absolutely closed the door on bankruptcy for whole classes of borrowers, and one in particular: students. Nearly fifteen years after the bill’s passage, journalists were still using language like, “The bill made it completely impossible to discharge student loan debt.”
Even I did this, writing multiple features about student loans stressing their absolute non-dischargeability, which is one of the reasons to write this now — I got this one wrong. In 2017, I interviewed a 68 year-old named Veronica Martish who filed for personal bankruptcy — as I put it, “not to get free of student loans, of course, since bankruptcy protection isn’t available for students” — and described her being chased by collectors to her deathbed. “By the time I die, I will probably pay over $200,000 toward an $8000 loan,” she said. “They chase you until you’re old, like me. They never stop. Ever.”
In fact, the bankruptcy situation was murky. Beginning in the 2010s, judges all over the U.S. began handing down decisions in cases like Gray’s, that revealed lenders had essentially tricked the public into not asking basic questions, like: What is a “student loan”? Is it anything a lender calls a student loan? Is a school anything a lender calls a school? Is a student anyone who takes a class? Can lenders loan as much as they want, or can they only lend as much as school actually costs? And so on.
The phrase “Just asking questions” today often carries a negative connotation. It’s the language of the conspiracy theorist, we’re told. But sometimes in America we’re just not told the whole story, and when the press can’t or won’t do it, it’s left to individual people to fill in the blanks. In a few rare cases, they find out something they weren’t supposed to, and in rarer cases still, they learn enough to beat the system. This is one of those stories.
On July 11, 2014, around the same time Gray was winning her case, a young litigator named Austin Smith published an article for the American Bankruptcy Institute. Smith had an unusual biography. Raised in a conservative household and already a veteran of Republican politics (he worked for John McCain), he was also an absurdist novelist and a former Onion writer. The headline of his bankruptcy piece, however, was as dry and punchline-free as they come: “The Misinterpretation of 11 U.S.C. § 523 (a) (8).”
“The common belief that all student loans are protected from discharge in bankruptcy,” he wrote, “is based on a misunderstanding.”
Smith’s explanation of the history of the student loan exemption and where it all went wrong is biting and psychologically astute. In his telling, the courts’ historically sneering attitude toward student borrowers has its roots in an ages-old generational debate.
“This started out as an an argument between the Greatest Generation and Baby Boomers,” Smith notes. “A lot of the law was created by people railing against draft-dodging deadbeat hippies.”
He points to a 1980 ruling by a judge named Richard Merrick, who in denying relief to a former student, wrote the following:
The arrogance of former students who had received so much from society, frequently including draft deferment, and who had given back so little in return, accompanied by their vehemence in asserting their constitutional and statutory rights, frequently were not well received by legislators and jurists, senior to them, who had lived through the Depression, had worked their ways through college and graduate school, had served in World War II, and had been paying the taxes which made possible the student loans.
Smith laughs about this I didn’t climb the hills at Normandy with a knife in my teeth just to eat the debt on your useless-ass liberal arts degree perspective, noting that “when those guys who did all that complaining went to school, only rich prep school kids went to college, and by the way, tuition was like ten bucks.” Still, he wasn’t completely unsympathetic to the conservative position.
In a key 1986 case called Brunner v. New York State Higher Education Services Corporation, New York’s Southern District had to consider the case of a young woman, Marie Brunner, who filed for bankruptcy just a year after graduating college.
This concern about “deadbeats” gaming the system — kids taking out fat loans to go to school and bailing on them before the end of the graduation party — led that 1985 court to take a hardcore position against students who made “virtually no attempt to repay.” They established a three-pronged standard that came to be known as the “Brunner test” for determining if a student faced enough “undue hardship” to be granted relief from student debt.
Among other things, the court ruled that a newly graduated student had to do more than demonstrate a temporary inability to handle bills. Instead, a “total incapacity now and in the future to pay” had to be present for a court to grant relief. Over the course of the next decades, it became axiomatic that basically no sentient being could pass the Brunner test.
On the one hand, Smith understood this — “You can’t have people declaring bankruptcy right out of school” — but he couldn’t help noticing that as bankruptcy rules for students got tighter and tighter, courts were “promising more and more robust bankruptcy provisions for corporations.”
Moreover, after Smith finished law school at the University of Maine and racked up more than $150,000 in his own educational debt, he learned that there was a lack of clarity in the law about what terms like “educational benefit” and “qualified educational loan” meant, when it came to determining who was and was not eligible for bankruptcy, according to federal code. In particular, he began looking at privately-issued student loans, which he estimates to account for about $150 billion of the $1.7 trillion in outstanding student debt.
In 2015, he was practicing law at the Texas litigation firm Bickel and Brewer when he came across a case involving a former Pace University student named Lesley Campbell, who was seeking to discharge a $15,000 loan she took out while studying for a bar exam. Smith believed a loan given out to a woman who’d already completed her studies, and who used the money to pay for rent and groceries, was not covering an “educational benefit” as required by law. A judge named Carla Craig agreed and canceled Campbell’s loan, and Campbell v. Citibank became one of the earlier dents in the public perception that there were no exceptions to the prohibition on discharging student debts.
“I thought, ‘Wait, what? This might be important,’” says Smith.
By law, Smith believed, lenders needed to be wary of three major exceptions to the non-dischargeability rule:
— If a loan was not made to a student attending a Title IV accredited school, he thought it was probably not a “qualified educational loan.”
— If the student was not a full-time student — in practice, this meant taking less than six credits — the loan was probably dischargeable.
— And if the loan was made in an amount over and above the actual cost of attending an accredited school, the excess might not be “eligible” money, and potentially dischargeable.
Practically speaking, this means if you got a loan for an unaccredited school, were not a full-time student, or borrowed for something other than school expenses, you might be eligible for relief in court.
Smith found companies had been working around these restrictions in the blunt predatory spirit of a giant-sized Columbia Record Club. Companies lent hundreds of thousands to teenagers over and above the cost of tuition, or to people who’d already graduated, or to attendees of dubious unaccredited institutions, or to a dozen other inappropriate destinations. Then they called these glorified credit card balances non-dischargeable educational debts — Gray got one of these “direct-to-consumer” specials — and either sold them into the financial system as investments, borrowed against them as positive assets, or both.
“These ‘direct to consumer’ loans were often made outside the financial aid office,” he explains. “They would take the list of customers who’d borrowed small loans to fill the gap between their federal loans and the cost of attendance, and started saying, ‘Hey, you need an extra $20,000, $40,000, $80,000?’ You're a smart kid, you're going to do well. Borrow it from us, and we'll send the check directly to your fraternity or your dormitory.’”
He pauses. “I got a couple of credit cards in college, but my limit was $500. The aggregate limit with these other educational loans was $140,000 over a four-year period. So, that’s where you ran into kids who got into real trouble.” He describes clients who came to him with simple Bachelor’s degrees, but the debts of people with three doctorates. “They were borrowing $40,000 to $50,000 a year, and at 13% interest, three years out of school, it's a million bucks.”
Smith thought these practices were nuts, and tried to convince his bosses to start suing financial companies.
“They were like, ‘You do know what we do around here, right?’ We defend banks,” he recalls, laughing. “I said, ‘Not these particular banks.’ They said it didn’t matter, it was a question of optics, and besides, who was going to pay off in the end? A bunch of penniless students?”
Furious, Smith stormed off, deciding to hang his own shingle and fight the system on his own. “My sister kept saying to me, ‘You have to stop trying to live in a John Grisham novel,’” he recalls, laughing. “There were parts of it where I was probably super melodramatic, saying things like, ‘I'm going to go find justice.’”
Slowly however, Smith did find clients, and began filing and winning cases. With each suit, he learned more and more about student lenders. In one critical moment, he discovered that the same companies who were representing in court that their loans were absolutely non-dischargeable were telling investors something entirely different. In one prospectus for a trust packed full of loans managed by Sallie Mae, investors were told that the process for creating the aforementioned “direct-to-consumer” loans:
Does not involve school certification as an additional control and, therefore, may be subject to some additional risk that the loans are not used for qualified education expenses… You will bear any risk of loss resulting from the discharge.
Sallie Mae was warning investors that the loans might be discharged in bankruptcy. Why the honesty? Because the parties who’d be packaging and selling these student loan-backed instruments included Credit Suisse, JP Morgan Chase, and Deutsche Bank.
“It’s one thing to lie to a bunch of broke students. They don’t matter,” Smith says. “It’s another to lie to JP Morgan Chase and Deutsche Bank. You screw those people, they’ll fight back.”
Smith estimates that in about 75 cases, some of them class-action cases, he managed to get some portion of clients’ student obligations reduced or eliminated. Eventually, he went for a nuclear strike against Navient, filing a petition to force the company into involuntary bankruptcy. The gambit failed, with a judge slapping Smith not just with a loss but potentially sticking him with the Navient’s attorney costs, an episode that earned him the nickname, “The Don Quixote of Student Loans.”
“I was trying to flip it, and turn our 300,000 debtors into creditors,” he said. “It didn’t work. The judge basically said, ‘This is too clever by half and I'm throwing it out.’”
Even though Smith lost his big gambit, he believes he identified a big slice of the student debt bubble that could be eradicated in bankruptcy — “about $50 billion,” he says. Moreover, his clients became part of a wave of claimants who’d begun finding success against student lenders.
In June of 2018, a case involving a Navy veteran named Kevin Rosenberg went through the courts. Rosenberg owed hundreds of thousands of dollars and tried to keep current on his loans, but after his hiking and camping store folded in 2017, he found himself busted and unable to pay. His case was essentially the opposite of Brunner: he clearly hadn’t tried to game the system, he made a good faith effort to pay, and he demonstrated a long-term inability to make good. All of this was taken into consideration by a judge named Cecilia Morris, who ruled that Rosenberg qualified for “undue hardship.”
“Most people… believe it impossible to discharge student loans,” Morris wrote. “This Court will not participate in perpetuating these myths.” The ruling essentially blew up the legend of the unbeatable Brunner standard.
Given a fresh start, Rosenberg moved to Norway to become an Arctic tour guide. “I want people to know that this is a viable option,” he said at the time. The ruling attracted a small flurry of news attention, including a feature in the Wall Street Journal, as the case sent a tremor through the student lending world. More and more people were now testing their luck in bankruptcy, suing their lenders, and asking more and more uncomfortable questions about the nature of the education business.
In the summer of 2012, a former bond trader named Michael Grabis sat in the waiting room of a Manhattan financial company, biding time before a job interview. In the eighties, Grabis’s father was a successful bond trader who worked in a swank office atop the World Trade Center, but after the 1987 crash, the family fell out of the smart set overnight. His father lost his job and spiraled, his mother had to look for a job, and “we just became working class people.”
Michael tried to rewrite the family story, going to school and going into the bond business himself, first with the Bank of New York, and eventually for Schwab. But he, too, lost his job in a crash, in 2008, and now was trying to break the pattern of bubble economy misery. However, he’d exited Pennsylvania’s Lafayette College in the nineties carrying tens of thousands in student loans. That number had since been compounded by fees and penalties, and the usual letters, notices, and phone calls from debt collectors came nonstop.
Now, awaiting a job interview, his phone rang again. It was a collection call for Sallie Mae, and it wasn’t just one voice on the line.
“They had two women call at once,” Grabis recalls. “They told me I’d made bad life choices, that I lived in too expensive a city, that I had to move to a cheaper place, so I could afford to pay them,” Grabis explains. “I tried to tell them I was literally at that moment trying to get a job to help pay my bills, but these people are trained to just hound you without listening. I was shaking when I got off the phone, and ended up having a bad interview.”
Two years later, more out of desperation and anger than any real expectation of relief, Grabis went to federal court in the Southern District of New York and filed for bankruptcy. At the time, he, too, believed student loans could not be eliminated. But the more he read about the way student loans were constructed and sold — he’d had experience in doing shovel-work constructing mortgage-backed securities, so he understood the Student Loan Asset-Backed Securities (SLABS) market — he started to develop a theory. Everyone dealing with the finances of higher education in America knew the system was rotten, he thought. But what if someone could prove it?
The 2005 Bankruptcy Act says former students can’t discharge loans for “qualified educational expenses,” i.e. loans given to students so that they might attend tax-exempt non-profit educational institutions. Historically, that exemption covered almost all higher education loans.
What if America’s universities no longer deserve their non-profit status? What if they’re no longer schools, and are instead first and foremost crude profit-making ventures, leveraging federal bankruptcy law and the I.R.S. code into a single, ongoing predatory lending scheme?
This is essentially what Grabis argued, in a motion filed last January. He named Navient, Lafayette College, the U.S. Department of Education, Joe Biden, his own exasperated judge, and a host of other “unknown co-perpetrators” as part of a scheme against him, claiming the entirety of America’s higher education business had become an illegal moneymaking scam.
“They created a fraud,” he says flatly.
Grabis’s argument is wild, but simple. If Smith argues that a “qualified educational loan” refers to “Title IV accredited schools.” Grabis went much further. He argued that even those institutions may not be “qualified.” The fact that so many schools behave like predatory profit-making institutions, he felt, means they don’t deserve their tax-exempt status. And if the schools themselves aren’t legitimate, tax-exempt institutions, then the loans cannot be legitimate, either.
“If any of these actors admitted that this was all for-profit money, then these loans would be dischargeable in bankruptcy, and it would destroy their whole securitization business,” he says.
Grabis doesn’t have a lawyer, his case has been going on for the better part of six years, and at first blush, his argument sounds like a Hail Mary from a desperate debtor. The only catch is, he might be right.
By any metric, something unnatural is going on in the education business. While other industries in America suffered declines thanks to financial crises, increased exposure to foreign competition, and other factors, higher education has grown suspiciously fat in the last half-century. Tuition costs are up 100% at universities over and above inflation since 2000, despite the 2008 crash, with some schools jacking up prices at three, four times the rate of inflation dating back to the seventies.
Bloat at the administrative level makes the average university look like a parody of an NFL team, where every brain-dead cousin to the owner gets on the payroll. According to Education Week, “fundraisers, financial aid advisers, global recruitment staff, and many others grew by 60 percent between 1993 and 2009,” which is ten times the rate of growth for tenured faculty positions.
Universities, in other words, have become cash cows in the same way military bases in Iraq and Afghanistan once were, with schools seeming desperate to find places to spend their rivers of government-backed tuition money. One study in 2013 counted $1.7 billion in capital projects at 92 schools, an orgy of building that leads even mid-level schools to look like mini-Taj Mahals — a $26 million recreation facility and “Aquatic center” with accompanying 40-foot leisure pool at Missouri State, a 645-foot, 8-lane, $8.4 million “lazy river” at Texas Tech, $240 million spent on “the most expensive and complicated construction project in the history of” Washington University, and so on.
Hovering over all this is a fact not generally known to the public: many American universities, even ones claiming to be broke, are sitting atop mountains of reserve cash. In 2013, after the University of Wisconsin blamed post-crash troubles for raising tuition 5.5%, UW system president Kevin Reilly in 2013 admitted that the school actually held $638 million in reserve, separate and distinct from the school endowment. Moreover, Reilly said, other big schools were doing the same thing. UW’s reserve was 25% of its operating budget, for instance, but the University of Minnesota’s was 29%, while Illinois maintained a whopping 34% buffer.
When Alan Collinge of Student Loan Justice looked into it, he found many other schools were sitting atop mass reserves even as they pleaded poverty to raise tuition rates. “They’re all doing it,” he said.
In the mortgage bubble that led to the 2008 crash, financiers siphoned fortunes off home loans that were unlikely to be repaid. Student loans are the same game, but worse. All the key players get richer as that $1.7 trillion pile of debt expands, and the fact that everyone knows huge percentages of student borrowers will never pay is immaterial. More campus palaces get built, more administrators get added to payrolls, and perhaps most importantly, the list of assets grows for financial companies, whether or not the loans perform.
Mortgages, Smith notes, were a hot potato game. Originators made masses of home loans and banks bundled them into securities, passing them onto investors as quickly as possible. “All you had to do is be able to sell it before the music stops,” he says. With student loans, the seemingly default-proof nature of the debt provides an extra kick.
“As long as it’s collateralized at Navient, they can borrow against that,” Smith says. “They say, ‘Look, we've got $3 billion in assets, which are just consumer loans in negative amortization that are not being repaid, but are being artificially kept out of default so Navient can borrow against that from other banks.
“When I realized that, I was like, ‘Oh, my god. They’re happy that the loans are growing instead of being repaid, because it gives them more collateral to borrow against.’” Smith’s comments echo complaints made by virtually every student borrower in trouble I’ve ever interviewed: lenders are not motivated to reduce the size of balances by actually getting paid. Instead, the game is about keeping loans alive and endlessly growing the balance, through new fees, penalties, etc.
There are two ways of approaching reform of the system. One is the Bernie Sanders route, which would involve debt forgiveness and free higher education. A market-based approach meanwhile dreams of reintroducing discipline into student lending; if students could default, schools couldn’t endlessly raise costs on the back of unlimited government-backed credit.
Which idea is more correct can be debated, but the one thing we know for sure is that the current system is the worst of both worlds, enriching all the most undeserving actors, and hitting that increasingly prevalent policy sweet spot of privatized profit and socialized risk. Whether it gets blown up in bankruptcy courts or simply collapses eventually under its own financial weight — there’s an argument that the market will be massively disrupted if and when the administration ends the Covid-19 deferment of student loan payments — the lie can’t go on much longer.
“It’s just obvious that this has become a printing money operation,” says Grabis. “The colleges charge whatever they want, then they go to the government and continuously increase the size of the loans.” If you’re on the inside, that’s a beautiful thing. What about for everyone else?