How Courts Are Using Student‑Loan Attestation Forms — Evidence Tips for Lawyers & Pro Se Borrowers

Introduction — Why the Attestation Process Matters Now

Since November 2022 the Department of Justice (DOJ), in coordination with the Department of Education (ED), has used a standardized attestation form to evaluate requests to discharge federal student loans in bankruptcy. That change has meaningfully increased the number of borrowers who pursue and obtain full or partial discharges—while leaving final judgment with the bankruptcy court. Practical preparation of the attestation and supporting evidence is now one of the single most important determinants of success for both counsel and self‑represented filers.

This article explains how courts and DOJ/ED are treating attestation submissions, what the attestation actually asks for, common local court practices, and a prioritized evidence checklist with drafting and filing tips for lawyers and pro se borrowers.

What the Attestation Is — How DOJ/ED and Courts Use It

The attestation is a fillable sworn form that asks a debtor to set out current income, itemized expenses (mapped to the IRS Collection Financial Standards), assets, repayment history, attempts to use administrative relief (IDR/TPD), and facts supporting a persistent inability to repay. DOJ attorneys review the attestation (in consultation with ED), may recommend a stipulation to the court, and sometimes will recommend a partial discharge where appropriate; the court, however, retains an independent duty to decide dischargeability.

Key legal points to keep in mind:

• DOJ/ED guidance instructs AUSAs to use the IRS Collection Financial Standards when evaluating the “present ability to pay” prong. That means the attestation categories and amounts are intentionally aligned with those standards.
• DOJ/ED can (and will) provide the debtor’s loan account history and related servicing records to the debtor and the assigned AUSA; those records are part of the administrative review. But missing ED servicing data does not automatically defeat a claim — DOJ/ED guidance instructs attorneys to consider other corroborating evidence.
• The guideline process is intended to streamline settlements, but any stipulation or recommendation is not binding on the bankruptcy judge — Espinosa and the court’s independent review still control. Expect judges to review materials before signing a stipulated judgment.

How Bankruptcy Courts Are Practicing Locally — What to Expect

Many bankruptcy districts have adopted local guidance or scheduling protocols to implement the DOJ/ED procedure in adversary proceedings under 11 U.S.C. § 523(a)(8). Local orders typically: (1) allow time for DOE to supply account histories, (2) give debtors time to complete the attestation and gather corroborating documents, and (3) provide a pause or stipulated briefing schedule while DOJ/ED makes a recommendation. Practitioners should check the local bankruptcy court procedures where the petition is filed.

Practice tip: contact the AUSA early to learn their local expectations about timing and submission method for the attestation (e.g., whether they accept electronic delivery and whether they prefer confidential transmission rather than filing the attestation on the public docket). Courts and AUSAs often prefer a short joint request to suspend pretrial deadlines while the attestation process runs.

Priority Evidence Checklist — What to Gather and How to Present It

The attestation process reduces—but does not eliminate—the debtor’s burden to prove undue hardship. Below is a prioritized checklist lawyers and pro se filers should use. For each item, the goal is to (a) match the attestation prompt, (b) make a clear, short explanatory statement under oath, and (c) attach concise corroboration (numbered exhibits).

Core financial evidence (high priority)

• Most recent federal tax return(s) — if the attestation relies on Schedule I numbers filed within 18 months, identify that filing; otherwise attach the most recent return(s). (The Guidance permits using filed schedules where recent.)
• Pay stubs / employer verification — last 2–3 months of paystubs or employer letter showing hours and earnings; identify unusual or fluctuating income in a short affidavit.
• Bank statements — last 3 months showing regular deposits and major recurring outflows; use highlights to show income vs essential expenses.
• Schedule I / Statement of Financial Affairs excerpt — attach the court-filed schedule if it accurately reflects current income/expenses and note the date it was filed; if income/expenses changed, explain with a dated affidavit.

Corroboration for “minimal standard of living” and IRS standards

• Lease or mortgage statement, childcare invoices, utility bills, health insurance premiums, and regular medical expense receipts — tie each to the relevant attestation line and to the IRS standard category where appropriate.

Evidence supporting persistence of hardship (future inability to pay)

• Medical records, disability determinations, SSA/VA award letters, and treating‑provider letters describing work limitations (where relevant).
• Employment history and job‑search records, layoff notices, or vocational evaluations if earnings capacity is limited.
• Age or long unemployment history: the guidance lists certain presumptions (e.g., age 65+, long unemployment, disability, degree failed to yield gainful employment) that support a presumption of persistent inability to repay — document these facts.

Evidence of good faith efforts to repay

• Records of payments made, IDR enrollment applications or denial letters, communications with servicers, consolidation/forbearance history, and evidence showing attempts to contact ED or servicers. The guidance notes servicer errors and wrongful IDR denials are not per se evidence of bad faith — document your outreach.

Loan and education records

• NSLDS report, ED/DOE account history provided by the agency (these are usually supplied as part of the litigation report), and transcripts or enrollment records if educational history affects future earning capacity.

Formatting and presentation tips

• Number exhibits and create a 1–2 page index that maps each attestation line to exhibit numbers. Judges and AUSAs appreciate a tight organizational packet.
• Prepare a one‑page sworn declaration that summarizes: (a) key income/expense math, (b) top two reasons the hardship will persist, and (c) a short timeline of repayment attempts. Keep it factual and documentary‑forward.
• If a disputed item exists (e.g., informal household support), explain it, attach corroboration (e.g., a short signed statement from the supporting family member), and cite the IRS standard comparison.

Procedural and Privilege Considerations — Confidentiality, Filing, and Timing

Because the attestation may require highly sensitive personal and medical details, the Guidance discourages attaching the attestation to the public adversary complaint; instead, practitioners typically transmit the attestation directly to the assigned AUSA and coordinate whether any supporting documentation will be filed under seal or submitted ex parte for DOJ/ED review. If the attestation or supporting records must be placed on the court docket, seek a protective order or file redacted exhibits and a motion to seal under the local rules (Fed. R. Bankr. P. 9037(d) and local procedures).

Timing note: local courts commonly extend initial scheduling deadlines to permit the DOJ/ED review. Confirm the AUSA’s anticipated review timeline and ask for a short joint status report or stipulation to stay discovery while DOJ/ED completes its review. Many districts have published local guidance implementing this approach.

What If DOJ/ED Does Not Recommend a Stipulation?

If DOJ/ED declines to recommend discharge (or recommends partial relief that the debtor believes is insufficient), the case proceeds to normal adversary‑proceeding litigation. The attestation and collected evidence still serve as the debtor’s initial factual foundation; be prepared to use the same exhibits at trial and to respond to targeted discovery. Even where DOJ/ED does not recommend full relief, the attestation process often clarifies issues and narrows disputes.

Remember: judicial outcomes vary by circuit and judge. The Guidance has shifted outcomes in many cases (the Departments report high rates of full or partial relief where the government recommended discharge), but the final legal determination remains with the court. Counsel should be prepared to litigate if necessary.

Quick Checklist for First‑Time Preparers

1. Confirm loan eligibility (Direct loans or DOE‑held loans). Request ED’s litigation report/account history from the AUSA or through the adversary process.
2. Collect core documents: tax returns, paystubs, 3 months of bank statements, lease/mortgage, SSA/VA letters, medical records (if applicable), NSLDS, and IDR/servicer communications.
3. Complete the attestation carefully and truthfully; keep a signed, dated copy and a short sworn declaration tying exhibits to attestation lines.
4. Coordinate with the AUSA about submission method and timing; ask whether they want a confidential transmission rather than public filing.
5. If filing any attestation‑related documents on the docket, move to seal/redact or request protective treatment promptly under local rules.

Conclusion — Preparing to Win the Factual Fight

The attestation procedure changes the tactical landscape: carefully prepared, corroborated attestation packets make stipulations and favorable DOJ/ED recommendations more likely, and they reduce the cost and intrusiveness of litigation for many eligible borrowers. But the court still performs an independent review, and local practices vary. Whether you are an attorney or a self‑represented borrower, organize your evidence around the attestation prompts, prioritize the highest‑weight documents (tax returns, paystubs, bank statements, SSA/VA letters), coordinate early with the AUSA, and use protective filings when necessary to keep sensitive data off the public docket.

If you need local procedural help, check the Los Angeles bankruptcy court local rules and consider contacting pro bono bankruptcy clinics or a consumer bankruptcy attorney experienced with § 523(a)(8) adversary proceedings.