The DOJ Student Loan Attestation Process

The DOJ attestation process is the federal government’s streamlined framework for evaluating undue-hardship discharge of federal student loans in bankruptcy. Created by joint DOJ and Department of Education guidance in November 2022 and refined in May 2025, it uses a standardized attestation form, applies the Brunner framework, and has raised the discharge approval rate from a small fraction of cases to a substantial majority.

The undue hardship standard for discharging federal student loans has not changed. The Brunner test still controls, and the bankruptcy court still makes the final ruling. What changed is how the U.S. government, the largest creditor in most federal student loan cases, handles those cases when they get filed. Here is what the guidance does, what the process looks like for a Pennsylvania or New Jersey borrower, and how it changes the practical calculus of bringing a hardship discharge complaint.

What changed in November 2022

Before the 2022 guidance, federal student loan discharge cases got the same treatment as any other contested adversary proceeding. DOJ litigators reviewed each complaint individually with broad discretion to oppose. The discharge approval rate sat in the single-digit percentages, widely reported in the legal press as effectively unreachable. Many borrowers who could meet the Brunner test on paper never filed because the cost and uncertainty of litigation outweighed the realistic chance of relief.

The 2022 guidance changed that posture. DOJ, working with the Department of Education, set out a uniform framework for evaluating undue hardship: a written attestation completed by the borrower, a set of factual benchmarks DOJ uses to evaluate the case, and a presumption in favor of recommending discharge when the benchmarks are met.

The guidance does not change the Brunner test itself. The DOJ recommendation is not binding on the bankruptcy court. The judge still has to find that the borrower meets the legal standard. In practice the recommendation carries weight, and the discharge approval rate has risen dramatically when DOJ recommends in favor.

How the attestation process works

The process starts the same way any student loan discharge case starts. The borrower files a Chapter 7 or Chapter 13 bankruptcy and then files an adversary proceeding under Federal Rule of Bankruptcy Procedure 7001(6). For the mechanics of that lawsuit, see the student loan adversary proceeding. For federal student loans held by the Department of Education, DOJ asks the borrower to complete an attestation form documenting the borrower’s financial picture.

The attestation collects information across three areas:

• Current income and household expenses, which speak to the present-hardship prong of Brunner.
• Long-term circumstances likely to affect ability to repay, which speak to the persistence prong.
• Past efforts to handle the loans, which speak to the good-faith prong.

The Assistant U.S. Attorney handling the case reviews the attestation and decides whether the criteria fit. If they do, the AUSA recommends discharge to the court. If the case fits cleanly within the framework, the recommendation can come back relatively quickly without the months of discovery and trial preparation a fully litigated Brunner case would require.

The bankruptcy court makes the final ruling. From November 2022 through March 2024, 98% of cases decided by the courts under this process resulted in full or partial discharge of the federal student loans at issue.

The three-part inquiry: what DOJ looks for

The attestation maps onto the three Brunner prongs the court will ultimately apply.

• Present hardship. DOJ compares the borrower’s current income and reasonable expenses against benchmarks it has set, including alignment with the IRS-published expense standards used elsewhere in the bankruptcy system. The framework defines “minimal standard of living” through specific factors rather than leaving the question entirely open-ended.
• Future hardship. The borrower has to show that the financial picture is likely to continue. The guidance creates presumptions of persistence for certain factual patterns: borrowers at or past retirement age, borrowers with documented disabilities or chronic medical conditions, and borrowers who have exhausted income-driven repayment options.
• Good faith. The borrower has to show past efforts to handle the loans. Examples include making payments when possible, enrolling in income-driven repayment plans, requesting deferment or forbearance, and other engagement with the loan servicer.

The framework does not paper over gaps. A borrower with documented financial hardship who has never made any effort to address the loans may still face DOJ opposition on the good-faith prong. A borrower whose income picture is likely to improve quickly may not satisfy the persistence prong. The framework structures the inquiry; it does not waive the elements of the test.

What kinds of loans qualify

The DOJ attestation process applies only to federal student loans held by the Department of Education: Direct Loans and Direct Consolidation Loans. Other categories of student debt follow other paths.

• FFEL and Perkins loans held by guaranty agencies or other entities follow the traditional Brunner adversary proceeding without the streamlined DOJ process.
• Private student loans that meet the qualified educational loan definition under 26 U.S.C. § 221(d)(1) require traditional Brunner litigation against the private lender.
• Non-qualified private educational loans sit outside § 523(a)(8) entirely and may be discharged as ordinary unsecured debt without proving undue hardship.

A borrower’s specific loan portfolio determines which paths apply and whether multiple paths run in parallel. Our page on private student loans in bankruptcy walks through the qualified-vs-non-qualified distinction and the recent case law in detail.

The May 2025 update to the attestation form

In May 2025, DOJ issued a revised version of the attestation form. The U.S. Trustee Program publishes it as Appendix A to the guidance, and the current version is dated 05/2025.

Both documents sit on the Justice Department’s site: the student loan attestation form (PDF) and the U.S. Trustee Program student loan guidance page it belongs to. The form walks through personal information, current income and expenses, future ability to repay, prior efforts to repay, and current assets. Completing the attestation is not the same as filing: it supports the adversary proceeding, which still has to be filed in the bankruptcy court.

The underlying framework did not change. Borrowers still complete the attestation, DOJ still reviews and recommends, and the bankruptcy court still rules.

How this changes the practical calculus

Three things look different now than they looked before November 2022.

• Predictability. Borrowers and their counsel can evaluate a case against a published framework before deciding whether to file the adversary proceeding. DOJ’s positions are no longer a black box.
• Cost. Cases that fit cleanly within the framework can resolve faster and at lower cost than fully litigated Brunner cases. Settlement on a recommended-discharge basis can replace months of discovery and trial preparation.
• Reach. Borrowers who would not have considered the adversary proceeding under the old regime, because the discharge rate was too low to justify the cost, are now viable candidates when the facts fit.

The DOJ recommendation is still not a guarantee. The bankruptcy court has the final word. The published framework, the documented success rates, and the streamlined process have shifted the practical calculus for federal student loan discharge enough that the option belongs on the table for borrowers who would have been told to forget about it a decade ago.

A note on Philadelphia & South Jersey practice

Federal student loan cases filed in the Eastern District of Pennsylvania go through the local U.S. Attorney’s Office in Philadelphia. South Jersey cases filed in the District of New Jersey, Camden vicinage, go through the U.S. Attorney’s Office for the District of New Jersey. Each office handles the local case load. The framework is uniform nationally, but the speed and texture of how individual AUSAs handle attestation review can vary, and local familiarity with how each district moves these cases through the docket matters at the strategy stage.

Talk to a bankruptcy lawyer who serves Philadelphia & South Jersey

The Law Office of Mike Assad helps individuals across Philadelphia and South Jersey evaluate whether student loan discharge is realistic under the DOJ framework and, where it is, prepare the attestation and file the adversary proceeding. Mike is admitted in both Pennsylvania and New Jersey and handles cases through the U.S. Bankruptcy Court for the Eastern District of Pennsylvania and the District of New Jersey.

• A free, confidential consultation with no obligation, and a straight read on whether the DOJ framework fits your federal loans and the rest of your facts.
• Affordable pricing where the case structure allows, with payment plans available. A $999 Chapter 7 program for qualifying filers.
• The same lawyer on your case from the first call through the discharge order, and a live person on the phone when you call.
• Fully virtual representation by phone and Zoom, so you never have to come to an office.

Book your free consultation online. The firm has offices in Cherry Hill, New Jersey, Egg Harbor Township, New Jersey, and Philadelphia, Pennsylvania. If it would help, you can share your debt picture before the call so the consultation starts from the facts.

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