postings by Alan White

Debt Relief on Day One

posted by Alan White

In a comprehensive review of existing student loan cancellation laws, Demos, the Student Borrower Protection Center, and the UCI Student Loan Law Initiative have compiled an impressive report and road map for the incoming Administration. The roadmap authors review the closed school, false certification, and disability discharges, public service loan forgiveness, income-driven repayment loan cancellation, borrower defenses to repayment, and protections for servicemembers and veterans, all of which have been sabotaged by Secretary Devos, and all of which could be marshaled to cancel millions of student loan debts. 

To be clear, these are existing debt cancellation programs enacted by past Congresses, and signed by past Presidents Republican and Democrat. Their full implementation would result in billions of dollars in debt relief to disproportionately low-income and minority workers and their families. While I remain skeptical of the ability of any Education Secretary to deliver on these programs given the contracting-out model under which federal loans are administered, and sympathetic to proposals for across-the-board loan cancellation, this detailed road map helps us imagine a new way forward.

Student Loan Relief Update

posted by Alan White

Student loan relief provisions required by the CARES Act expire on September 30. Those protections included 1) for all federal direct loans: zero interest and automatic payment forbearance, 2) credit towards IDR and PSLF forgiveness for the 6 months covered by the Act, and importantly, 3) suspension of wage garnishments and other collections on defaulted loans. The Act called for student loan borrowers to receive notice in August that payments will restart October 1 and that borrowers not already in income-driven repayment plans can switch, so that borrowers with no or little income can remain on zero payments (but not if they were in default.)

The President’s Executive Memorandum calls on the Secretary of Education to take action to extend economic hardship deferments under 20 U.S.C. 1087e(f)(2)(D) to provide “cessation of payments and the waiver of all interest” through December 31 2020.  These deferments are to be provided to “borrowers.” The Memorandum does not specify which loan categories (Direct, FFEL, Perkins, private) should be included, nor whether relief to borrowers in default should continue. Advocates also note that the Memorandum is vague as to whether borrower relief will continue automatically, or instead whether students will have to request extended relief, as under the Education Department’s administrative action just prior to passage of the CARES ACT. As of this writing the Education Department has posted no guidance for borrowers or servicers on its web site. Servicers will need guidance soon, and borrowers meanwhile will be receiving a confusing series of CARES Act termination letters and conflicting information about the latest executive action. UPDATE - USED has apparently issued guidance to collection agencies saying that borrowers in default are included in the Executive action so that garnishments and other collection should remain suspended through December 31, 2020.

The HEROES Act passed by the House would extend all borrower relief until at least September 30 2021, would bring in all federal direct, guaranteed and Perkins loans, and would grant a $10,000 principal balance reduction to “distressed” borrowers. The House also included an interesting fix to the Public Service Loan Forgiveness program so that borrowers will not have to restart their ten-year clock towards loan forgiveness when they consolidate federal loans. In lieu of any extended student loan relief, Senate Republicans have proposed that borrowers just be shifted to existing income-dependent repayment plans. Existing IDR plans already allow zero payments for borrowers with zero or very low income, but do not stop the accrual of interest. They are not available to borrowers in default, so wage garnishments and collections for borrowers who were in default before March would resume October 1 under the Republican proposals.

David Graeber’s Debt, The First 5000 Years

posted by Alan White

I’m just getting around to reading a 2014 book some Creditslips readers may be familiar with, Debt: The First 5000 Years. In this utterly fascinating work, Anthropologist David Graeber exhaustively recounts the history of debt and money. He begins by debunking the myth of barter, the story told in introductory economics textbooks that money was spontaneously invented to permit merchants to exchange goods and services in imaginary markets, as an improvement over primitive market economies based on barter. In fact, early human societies all relied on central planning (by kings and high priests), communism, gift-giving, redistribution, and various forms of debt, notably in Mesopotamia, Egypt and Greece, the earliest western civilizations, and probably in India and China as well. Debts and their units of account (i.e. money) arose to compensate for injuries, to seal marriages and other relationships, and to tabulate taxes paid and owed to sovereigns. Kings invented coinage both to relieve the poverty of their subjects and to provision their armies by spending coins, and as a convenient means to collect taxes. Modern monetary theorists like to cite this research to make the essential point that money and markets are created by sovereigns and states, and rarely if ever arose spontaneously. The idealized construct of a free market based solely on exchange first arose much later in economic history, in mercantilist societies and then with the liberal philosophers (Bentham, Owen, Smith, Ricardo) of the Industrial Revolution. 

Bankruptcy has always been with us. From the earliest times debt-based money led to  Screen Shot 2020-06-18 at 5.11.12 PMperiodic crises and debtor revolts, and wise rulers from the dawn of written history periodically decreed the cancellation of all debts, sometimes memorialized by the physical destruction of debt tokens. The biblical inscription on the Liberty Bell from Leviticus, “proclaim liberty throughout the land”, was the announcement of a debt jubilee including the liberation of debt slaves. The Rosetta Stone was a similar Ptolemaic royal decree announcing a tax and debt jubilee.

Capitalism had its origins not in the exchange of goods and services between free traders and workers but in slavery and debt peonage, not only in the United States but in every colonial empire.  After reminding us of Martin Luther King’s description of the founding documents as an unpaid debt to Black Americans, Graeber concludes by reminding us that the validity and morality of various debts can and should be determined democratically. Thought provoking in a moment when we hear calls for both payment of reparations and cancellation of student loan and housing debts.  

California sues Devos over PSLF

posted by Alan White

California's Attorney General has filed a lawsuit against Betsy Devos challenging the failure to discharge student loans under the Public Service Loan Forgiveness program. The suit asserts that US Ed's failure to create a simple and effective application process injures the state of California by discouraging qualified workers from seeking or staying in state jobs. California joins New York and Massachusetts AGs who have filed similar lawsuits. Secretary DeVos has had a poor record of compliance with court orders compelling student debt relief, but hope springs eternal.

We Can Cancel Student Loans for Essential Workers Now

posted by Alan White

While the House HEROES bill's scaled-down student loan forgiveness is unlikely to become law, many essential workers are eligible for student loan cancellation now under existing law. The Public Service Loan Forgiveness program covers all police, firefighters, public school teachers, nurses, soldiers, prison guards, and contact tracers, among others. Once public servants complete 10 years of payments, the law says they get their remaining federal student debt cancelled. So far nearly 1.3 million public servants are working towards their PSLF discharges, but the US Education Department has granted only 3,141 discharges out of 146,000 applicants.

In the month of March, 5,656 borrowers applied for PSLF. 114 received a discharge.  Meanwhile another 15,000 entered the pipeline by having their first employment certification approved, bringing the total to almost 1.3 million public servants. 

I have written elsewhere about how Congress and the Education Department could fix this program, even without new legislation.

The average total student loan debt discharged for PSLF borrowers is more than $80,000. For a median income earner, monthly payments range from $250 to $900 depending on the payment plan. PSLF discharges can yield an immediate and significant savings for these workers. 

PPP Loan Fees for Banks

posted by Alan White

$10 billion of CARES Act funds are going to the banks, especially megabanks, in fees for making “small” business PPP loans. The fees established by Congress, to be paid by the Small Business Administration, i.e. Treasury, range from 1% for loans above $2 million to 5% for loans below $350,000.

The maximum loan amount is $10 million, so those loans generate a nifty $100,000 fee each. At least 40 large public companies received loans from $1 to $10 million.

Given the highly streamlined application process, these fees likely far exceed the costs of originating these loans. The 1% interest rate, while low, still exceeds bank cost of funds. Do the banks need a bailout? First quarter earnings reports for the largest banks show steep drops in earnings, but earnings are still positive. The earnings drop is entirely due to provisioning for expected loan losses; obviously predicting loan performance over the next year is a very tricky business. Nevertheless, the PPP fee structure is designed to subsidize financial institutions not especially in need of a bailout, especially compared to restaurants, main street stores, and other small businesses. In fact, given that SBA is waiving the guarantee fee, why don’t the banks just waive the fees and interest on these loans? And given the robust public subsidies to megabanks, why should SBA pay these fees in the first place? If banks have inadequate capital to weather the coming storm, surely there is a better way to support them than having SBA pay these arbitrary PPP loan fees.

PSLF update

posted by Alan White

The success rate for Public Service Loan Forgiveness applicants has doubled. From 1% to 2%.

Thinking they have completed their 10 years of payments, 140,000 student loan borrowers had applied for cancellation through February 29, and about 3,000 had received a discharge, including 1,300 under the “temporary expanded” PSLF who were put in the wrong repayment plan by their servicers.

1.3 million public servants have had their employment approved for eventual cancellation of their student loans after 10 years of repayment. Two-thirds are in public sector jobs and one-third work in the nonprofit sector. Their average debt is $89,000, although a median would be a more useful number (graduate school borrowers extend the long right-hand tail.)

The pace of approvals is undoubtedly affected by quarantines of servicer employees. Pennsylvania and the federal Education Department should consider making student loan cancellation workers at FedLoan/PHEAA essential, and staffing up this program.

USED now releases monthly rather than quarterly #PSLF data.

11th Circuit: Student Borrower Consumer Claims not Preempted by HEA

posted by Alan White

An 11th Circuit panel ruled last week that student loan borrowers may assert state law misrepresentation claims against a student loan servicer that falsely told them their FFEL loans qualified for Public Service Loan Forgiveness. The servicer, joined by USED, argued that the Higher Education Act preempted the borrowers' state law claims, because the HEA mandates certain disclosures and expressly preempts state laws that would require additional or different disclosures. Attorneys general and consumer lawyers around the country have been battling various versions of these preemption and related sovereign immunity arguments. 

Kate Elengold and Jonathan Glater have posted an excellent article, the Sovereign Shield, summarizing the state of play.

CARES Act Mortgage Foreclosure and Tenant Eviction Relief

posted by Alan White

The final text of the act is now available here. The foreclosure relief is in Section 4022 and the eviction moratorium is in Section 4024. Mortgage borrowers with federally related loans (FHA, VA, Farmer's Home, Fannie or Freddie) may request 6 months of forbearance, i.e. no payments required, renewable for another 6 months, during which no late fees or penalties may be imposed, but interest continues to run (unlike student loans.) Homeowners need not provide documentation; a certification that they are affected by the COVID-19 crisis is enough. There is no statutory provision for loan modification after the forbearance period ends, so unpaid payments will still be due, but the agencies will likely be requiring or encouraging servicers to offer workouts when the forbearance ends. Section 4023 provides relief for landlords of multifamily buildings with federally related mortgages, conditioned on no evictions. 

The eviction relief is limited to tenants in properties on which there is a federally related mortgage loan, and is only for 4 months. In brief, landlords may not send notices to quit or go forward with evictions. Tenant certifications of hardship are not required. An excellent summary of the eviction moratorium is available at the National Housing Law Project site here. Some states are also imposing eviction moratoria covering more tenants.

CARES ACT Student Loan Relief

posted by Alan White

The CARES Act signed into law last week suspends payments and eliminates interest accrual for all federally-held student loans for six months, through September 30. These measures exclude private loans, privately-held FFEL loans and Perkins loans. The other five subsections of section 3513 mandate important additional relief. Under subsection (c) the six suspended payments (April to September) are treated as paid for purposes of “any loan forgiveness program or loan rehabilitation program” under HEA title IV. In addition to PSLF, this would include loan cancellation at the end of the 20- or 25- year periods for income-dependent repayment. Loan rehabilitation is a vital tool for borrowers to get out of default status (with accompanying collection fees, wage garnishments, tax refund intercepts, and ineligibility for Pell grants) by making nine affordable monthly payments. This subsection seems to offer a path for six of those nine payments to be zero payments during the crisis suspension period.

Subsection (d) protects credit records by having suspended payments reported to credit bureaus as having been made. Subsection (e) suspends all collection on defaulted loans, including wage garnishments, federal tax refund offsets and federal benefit offsets.

Finally, and importantly, subsection (g) requires USED to notify all borrowers by April 11 that payments, interest and collections are suspended temporarily, and then beginning in August, to notify borrowers when payments will restart, and that borrowers can switch to income-driven repayment. This last provision attempts to avert the wave of default experienced after prior crises (hurricanes, etc.) when, after borrowers in affected areas had been automatically put into administrative forbearance, the forbearance period ended and borrowers continued missing payments. Whether the “not less than 6 notices by postal mail, telephone or electronic communication” will actually solve the payment restart problem will depend a great deal not only on the notices but also the capacity of USED servicers to handle the surge of borrower calls and emails. At present servicers are struggling with handling borrower requests because many employees are in lockdown or quarantine.

PSLF in the Time of Coronavirus

posted by Alan White

The rules for student loan borrowers hoping for Public Service Loan Forgiveness are changing rapidly, and information even on Education Department and CFPB web sites is confusing and rapidly outdated. The CARES Act, section 3513, signed into law on March 27, requires the Secretary of Education to “suspend all payments due” for federally-held student loans until September 30. The same section provides that interest shall not accrue on any loan for which payments are suspended. The law supersedes the prior Education Department administrative action suspending interest for 60 days. Of special relevance to PSLF, the third subsection provides that “The Secretary shall deem each month for which a loan payment was suspended under this section as if the borrower of the loan had made a payment for the purpose of any loan forgiveness program or loan rehabilitation program.”

The most important advice for borrowers is still to 1) be sure you are in a federal direct loan, using a direct consolidation loan if necessary to get out of FFEL, 2) get on an income-dependent repayment plan and 3) apply to have your IDR monthly payment recalculated now, not next year, if you have any job loss or drop in income.

“Suspending” payments is unfortunate language because it is not an existing repayment status. USED will probably interpret this to mean “forbearance,” rather than “deferment” but no announcement has yet been made. The third possibility is to treat all borrowers as if they were in income-dependent repayment (IDR) with a zero payment. The law also mandates zero interest for the next 6 months, and borrowers report that they are already seeing their interest rate changed to 0% on line. As a practical matter, forbearance with zero interest is similar to deferment or IDR with zero payment. However, months in forbearance would normally not count towards the 120 months required to get PSLF forgiveness, nor for that matter for the 20 or 25 years of payments required for forgiveness at for borrowers in income-dependent payment plans. Because the CARES act mandates that months in “suspension” count, the effect should be more like IDR with zero payment.

The good news is that 3513(c) effectively supersedes the 15-day rule, so early and late payments won't matter for the next 6 months.

The bad news is that a monthly payment does not count towards the 120 required unless the borrower is employed full-time during that month. The CARES Act language could be read to supersede that requirement. Unfortunately my guess is that USED will read 3513(c) to suspend the payment requirement but not the full-time employment requirement. As a practical matter, borrowers just need their employer to certify that they were a full-time employee during the relevant time period, which should include at least paid sick leave. Public servants on unpaid leave may be left out in the cold, as far as PSLF payment counting. USED does have the power under the prior pandemic legislation to waive statutory and regulatory requirements, and we’ll see how generously they choose to interpret this provision.

Borrowers in IDR payment plans are entitled to have their servicer recalculate their monthly payment based on current income if they lose a job or have reduced income. Payment “suspension” for those borrowers could create additional problems. If all federal loans are placed into administrative forbearance, borrowers whose IDR payment is based on job income may not act promptly to have their IDR payment recalculated based on current income.

If this advice is wrong or you have better information or ideas for PSLF borrowers, please comment.

Student Loan Relief for Public Service Workers: Repeal the 15-day Rule

posted by Alan White

More than one million public servants – nurses, soldiers, first responders, teachers—should be eligible now or soon for student loan cancellation under existing law – the Public Service Loan Forgiveness program. Congress and the Administration can accelerate this process now.

The Education Department and its servicer FedLoan have notoriously rejected 98% of PSLF loan cancellation requests. One of the reasons is a pointless and unhelpful regulation that was not part of the Congressional legislation, but was added by the Education Department – the 15-day rule. The PSLF law calls for public servants to have their loans cancelled after 10 years of repayment. The Department’s regulation defined 10 years of repayment as 120 payments, each made within 15 days of the due date. In real life borrowers make payments early and they make payment late. During the present crisis they cannot be expected to meet this rule.

Congress is already considering a bill that would give the Education Secretary broad authority to waive regulations. The 15-day rule should be the first to go. The Department and servicer FedLoan should work together to clear away ALL regulatory obstacles to full PSLF implementation.

600,000 student loan borrowers getting nowhere

posted by Alan White
Student loan borrowers who plan to apply for Public Service Loan Forgiveness (PSLF)  after ten years of income-based payments are simply not getting their
Screen Shot 2019-12-24 at 11.15.17 AM
https://fsaconferences.ed.gov/conferences/library/2019/2019FSAConfSession18.pdf
payments counted. Between January 2012 and August 2018 nearly one million borrowers submitted an approved public service employer certification. As of August 2019 there are 600,000 of these approved borrowers with ZERO "qualifying" payments towards the required 120.  
 
In the same presentation USED asserts that most (80%) of borrowers who already applied for forgiveness believing they had completed the required ten years of payments had actually entered repayment less than ten years before applying. This explanation suggests that all is well except that borrowers simply need to wait a few more months to apply. The zero qualifying payments problem proves that the PSLF failure goes much deeper, for the reasons I described in a prior post.

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