In Texas and most federal courts, the Brunner test is the three-part standard bankruptcy courts use to decide whether repaying covered student loans would cause “undue hardship” under 11 U.S.C. § 523(a)(8). Established in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987), and applied in Texas through In re Gerhardt, 348 F.3d 89 (5th Cir. 2003), the test asks whether you can maintain a minimal standard of living, whether the hardship is likely to continue, and whether you made good-faith repayment efforts. In Texas, courts apply that standard strictly.
Warren & Migliaccio, L.L.P. has helped clients across Dallas, Collin, Denton, and Tarrant counties work through bankruptcy since 2006. If you’re wondering whether student loan discharge is even realistic in Texas, here’s the honest answer, and why it depends heavily on which state you’re filing in.
Need-to-Know Highlights
For Texas borrowers, the Brunner test is a strict proof rule, and the hardest part is usually showing the hardship will last.
- Texas courts apply Brunner through Fifth Circuit precedent such as In re Gerhardt, which sets a tougher bar than many other circuits.
- You must prove all three prongs, and failing even one ends the discharge request.
- The persistence prong is usually the biggest hurdle because courts want evidence that the hardship will continue for a significant part of the repayment period.
- Most student loans are not reviewed automatically in bankruptcy; discharging loans covered by 11 U.S.C. § 523(a)(8) usually requires a separate adversary proceeding.
- Good-faith proof can include payment history, income-driven repayment efforts, deferments, forbearance requests, and loan-servicer communications.
What Is the Brunner Test? (Key Definitions)
Student loans are treated differently under federal bankruptcy law. Section 523(a)(8) of the Bankruptcy Code makes them presumptively nondischargeable. Basically, that means they survive bankruptcy unless you can prove an exception. Congress never really defined what “undue hardship” actually means, so bankruptcy courts came up with their own standards to fill that gap. Most circuits, including the Fifth Circuit covering Texas, adopted the Brunner test as the controlling legal standard. It’s a conjunctive test, meaning all three prongs must be proven. Fail one, and discharge is denied.
Term | Definition |
|---|---|
Undue hardship | The § 523(a)(8) threshold that triggers eligibility for student loan discharge |
Brunner test | Three-part standard requiring proof of minimal living standard, persistent hardship, and good faith |
Adversary proceeding | A separate lawsuit filed within the bankruptcy case, required to pursue student loan discharge |
Totality of circumstances | An alternative standard used by the Eighth Circuit — does not apply in Texas |
How Texas Courts Apply the Brunner Test (and Why It’s Harder Here)
Most people reading about the Brunner test online get the national version. Texas filers really do face a stricter standard than borrowers in most other states. So that distinction really matters when you’re deciding whether an adversary proceeding is worth pursuing.
The Fifth Circuit adopted the Brunner test through binding precedent in In re Gerhardt, 348 F.3d 89 (5th Cir. 2003).³ Under that framework, the Fifth Circuit doesn’t ask whether repayment is merely difficult. It asks whether repayment would impose “intolerable difficulties,” and courts have interpreted the second prong to require something close to near-permanent total incapacity. While judges in many other circuits have moved away from harsh language like “certainty of hopelessness,” the Fifth Circuit hasn’t followed that trend. Our bankruptcy courts acknowledge the standard is demanding. They’ve also explicitly deferred to Congress to change it.
You’ve seen how the Brunner test works. Now see how it might apply to your situation.
One more question about your repayment history
Have you engaged with any repayment options before now?
This includes income-driven repayment plans, deferments, forbearance requests, or communications with your loan servicer.
Your situation may support a closer look at the Brunner test
In Texas, the persistence prong is usually the biggest hurdle. Long-term or permanent medical conditions with documented evidence of limited recovery are among the strongest fact patterns courts recognize under Fifth Circuit precedent. Combined with your history of engaging with repayment options, the good-faith prong may also be supportable.
Actionable Takeaway: Cases with durable medical documentation and a clear repayment history tend to present the strongest foundation for an adversary proceeding in the Northern District of Texas.
The sections below walk through each prong in detail so you can see exactly what courts look for.
This overview is general information only and does not create an attorney-client relationship.
Schedule a Free ConsultationYour medical situation may help, but the good-faith prong needs attention
Long-term medical conditions can support the persistence prong, which is the toughest part of the Brunner test in Texas. However, courts in the Fifth Circuit also look at whether you engaged with available repayment options before filing. Not having applied for income-driven repayment or contacted your loan servicer can undercut the good-faith prong, even when your financial situation is genuinely severe.
Actionable Takeaway: Before pursuing an adversary proceeding, an attorney can help you evaluate whether your repayment history can be strengthened or whether the existing record is sufficient under current Fifth Circuit standards.
Keep reading below for details on exactly what courts consider under each prong.
This overview is general information only and does not create an attorney-client relationship.
Schedule a Free ConsultationA recent setback alone may not satisfy the Brunner test in Texas
The Fifth Circuit’s persistence prong requires more than current hardship. A temporary job loss or a medical event with an improving prognosis usually will not satisfy prong two under Texas precedent, because courts look forward and ask whether the hardship is likely to continue for a significant portion of the repayment period. Being stretched thin and behind on payments does not clear the bar under In re Gerhardt.
Actionable Takeaway: An honest evaluation of whether your setback is temporary or long-term is the most useful first step. If the facts don’t support an adversary proceeding, knowing that early saves you time and money.
The prong-by-prong breakdown below explains exactly what “persistent hardship” means in Texas courts.
This overview is general information only and does not create an attorney-client relationship.
Schedule a Free ConsultationFixed income with limited prospects can support a Brunner test case
In the Northern District of Texas, borrowers in their 60s or older, on fixed income, with documented long-term conditions that limit future earning capacity tend to show the most durable arguments on the persistence prong. Your engagement with repayment options also supports the good-faith prong, which courts evaluate by looking at your full history of efforts before filing.
Actionable Takeaway: A necessity-only budget paired with forward-looking evidence of limited earning capacity and a documented repayment history forms the foundation courts look for in the Northern District of Texas.
Continue reading for the specific evidence standards under each prong of the Brunner test.
This overview is general information only and does not create an attorney-client relationship.
Schedule a Free ConsultationYour income situation may help, but repayment history matters too
Fixed income and limited earning potential can support the persistence prong in Texas. But courts also look at whether you engaged with available options before filing. Borrowers who never applied for income-driven repayment consistently face resistance on the good-faith prong, even when their finances are genuinely severe, because courts expect to see prior engagement with available repayment alternatives.
Actionable Takeaway: Understanding where your good-faith record stands before filing an adversary proceeding helps you decide whether to pursue discharge now or take steps to strengthen your position first.
The prong-by-prong analysis below covers exactly what “good faith” means under Fifth Circuit precedent.
This overview is general information only and does not create an attorney-client relationship.
Schedule a Free ConsultationPrivate student loans follow different rules than federal loans
Some private education debts fall outside 11 U.S.C. § 523(a)(8), which means they may be dischargeable without proving undue hardship under the Brunner test. Whether that applies depends on the loan’s actual terms and statutory fit. If your private loan does fall within § 523(a)(8), Brunner still applies in Texas, but there is no DOJ attestation process for private-loan cases.
Actionable Takeaway: The first step for private loan borrowers is determining whether your specific loan falls within or outside § 523(a)(8). That single question changes your entire path forward.
Read on below for how the adversary proceeding process works and where private loans fit in.
This overview is general information only and does not create an attorney-client relationship.
Schedule a Free ConsultationUntil Congress acts, this is the law Texas debtors live under.
The Brunner test is already a high bar. In Texas, that bar is higher than in most places. What we've found works best is getting an honest evaluation of your facts before filing an adversary proceeding. Without that step, there's no way to know whether your case has a realistic path forward. Bankruptcy courts in the Northern District of Texas are bound by Fifth Circuit precedent without exception.
The Three Prongs of the Brunner Test, Explained
You have to satisfy all three prongs. There is no partial credit, and failing even one ends the analysis. In re Gerhardt, 348 F.3d 89 (5th Cir. 2003).
Prong 1: Can You Maintain a Minimal Standard of Living While Repaying?
The formal name for this prong is the inability to maintain a minimal standard of living for yourself and your dependents. Courts look at household income against necessary monthly expenses (food, shelter, clothing, transportation, healthcare). Not cable. Not subscriptions. Just the basics.
If your income, after covering those necessities, leaves no room for loan payments, you may satisfy prong one. But the Fifth Circuit applies this strictly, and there is no simple poverty-line cutoff. Courts compare your actual income and necessary expenses to decide whether you can cover basic needs and still pay. In re Gerhardt, 348 F.3d 89 (5th Cir. 2003).
Prong 2: Is Your Financial Hardship Likely to Continue?
This is the prong that eliminates most Texas cases. The persistence of hardship prong requires proving that your current circumstances are likely to persist for a significant portion of the repayment period. Courts look forward, not just at where you are today.
Circumstances that tend to hold up: permanent disability, chronic illness, long-term unemployment with documented barriers to income recovery, or severe age and health conditions that realistically limit future earning capacity. A temporary job loss or a recent medical event with an improving prognosis usually will not satisfy prong two under Fifth Circuit precedent. One additional factor worth knowing: courts more often evaluate income-driven repayment options under the good-faith prong, not as a stand-alone test for whether hardship is permanent. In federal student loan cases, DOJ guidance says IDR participation is relevant but not dispositive. In re Thomas, 931 F.3d 449 (5th Cir. 2019); DOJ Guidance for Department Attorneys Regarding Student Loan Bankruptcy Litigation (Nov. 17, 2022).
Prong 3: Have You Made Good Faith Efforts to Repay?
The third prong asks whether you've made good-faith efforts to repay, and courts look at the whole picture, not just payment history. They want to see whether you applied for IDR plans, sought deferment or forbearance through your loan servicers, kept expenses reasonable, and engaged with available options. Partial payments and documented outreach can support good faith. In our office, we typically walk clients through exactly what records to pull together before we even discuss filing. In re Thomas, 931 F.3d 449 (5th Cir. 2019).
Here's what most people miss. Courts evaluate your behavior before the bankruptcy filing. Filing for bankruptcy with the explicit intent of discharging student loans, without ever meaningfully engaging with repayment alternatives, is itself a bad faith signal. Failing to apply for programs that were available to you is a negative factor, even when your overall financial situation is genuinely severe.
What Happens When You Try to Discharge Student Loans in Bankruptcy
Now, your student loans won't be reviewed automatically when you file for bankruptcy. That surprises a lot of people. A separate adversary proceeding is usually required to put dischargeability in front of the court. Fed. R. Bankr. P. 7001(6).
How to Apply the Brunner Test: The Adversary Proceeding and the DOJ Attestation Process
Discharging student loans usually requires filing a separate lawsuit known as an adversary proceeding within the bankruptcy case.⁴ It runs parallel to your main bankruptcy and carries its own filing requirements, its own evidentiary standards, and its own timeline. We've handled these proceedings in Dallas, Collin, and Tarrant county cases, so the process is familiar to our team. When the debtor files that complaint, the adversary filing fee generally is not charged, and reopening the case to file this type of complaint does not trigger a reopening fee. Fed. R. Bankr. P. 4007(b); Fed. R. Bankr. P. 7001(6); Bankruptcy Court Miscellaneous Fee Schedule, Item 6.
Now, for federal student loans, the process shifted in November 2022. The Department of Justice issued formal guidance directing its attorneys to use a standardized Attestation Form when evaluating federal loan discharge requests.⁵ That's a real change in how those cases move forward. The DOJ reviews your financial facts and can recommend discharge to the court rather than automatically opposing it.
So what the guidance doesn't touch is the legal standard. The Brunner test still governs in the Fifth Circuit. The DOJ guidance affects how government lawyers approach your case. It doesn't change how judges decide it.
Private student loan cases can work differently. They are not covered by the DOJ guidance, and some private education debts fall outside 11 U.S.C. § 523(a)(8), which means they may be discharged without proving undue hardship. If the debt does fall within § 523(a)(8), Brunner still applies in Texas. There is also no DOJ attestation process for private-loan cases. In re Crocker, 941 F.3d 206 (5th Cir. 2019); In re Henry, 944 F.3d 587 (5th Cir. 2019); 11 U.S.C. § 523(a)(8).
| Factor | Federal Student Loans | Private Student Loans |
|---|---|---|
| Covered by § 523(a)(8)? | Yes, always. Federal student loans fall within 11 U.S.C. § 523(a)(8) and are presumptively nondischargeable. | Not always. Some private education debts fall outside § 523(a)(8), depending on the loan's actual terms and statutory fit. In re Crocker, 941 F.3d 206 (5th Cir. 2019); In re Henry, 944 F.3d 587 (5th Cir. 2019). |
| Legal test in Texas | Brunner test (all three prongs) as applied through Fifth Circuit precedent in In re Gerhardt. | Brunner test applies if the loan falls within § 523(a)(8). If the loan falls outside § 523(a)(8), it may be dischargeable without proving undue hardship. |
| DOJ attestation process | Available since November 2022. DOJ attorneys use a standardized Attestation Form and can recommend discharge instead of automatically opposing the case. | Not available. There is no DOJ attestation process for private student loan cases. |
| Adversary proceeding required? | Yes. A separate adversary proceeding must be filed within the bankruptcy case to put discharge before the court. | Yes, if the loan falls within § 523(a)(8). If the loan falls outside § 523(a)(8), a separate adversary proceeding may not be necessary. |
From Our Practice: What I've Learned Evaluating Brunner Test Cases in North Texas
What I've Learned Evaluating Brunner Test Cases in North Texas
I'm Christopher Migliaccio, Co-Founding Partner of Warren & Migliaccio, L.L.P. I've handled bankruptcy matters in the Northern District of Texas for nearly 20 years. Here's something most articles about the Brunner test won't tell you: the three prongs are not created equal.
Most clients who come in asking about student loan discharge are worn down. They've been told for years that it can't be done. They're coming in to confirm a decision they've already half made, not to seriously consider a real option. What they don't realize is which specific prong will end their case.
Across cases in the Dallas Division and Fort Worth Division, prong two ends most cases before they start. Under In re Gerhardt, the persistence standard requires near-permanent incapacity. I've seen clients with serious, genuine medical conditions who still couldn't satisfy prong two because their prognosis showed improvement, and courts look forward. Clients in their 60s, on fixed income, with documented long-term conditions show the most durable arguments. Clients who never applied for any IDR plan consistently face resistance on good faith even when their finances are genuinely severe, because courts expect to see prior engagement with available options under 11 U.S.C. § 523(a)(8).
What we like to do is give you an honest answer early. If the facts don't support an adversary proceeding under the Fifth Circuit standard, knowing that before you spend money on one is the most useful thing we can offer.
The Takeaway: In the Northern District of Texas, the persistence prong is the real gatekeeper for the Brunner test. Understanding that before you file changes everything about how you approach the decision.
— Christopher Migliaccio, Warren & Migliaccio, L.L.P.
Mistakes to Avoid When Pursuing Student Loan Discharge in Texas
- Assuming student loans discharge automatically in bankruptcy. They don't. Your main bankruptcy case won't touch your student debt unless you file a separate adversary proceeding specifically requesting discharge under § 523(a)(8). Many borrowers don't discover this until they're already mid-case, and by then it's too late to plan for the additional costs.
- You may read online that the Brunner test only requires showing you're financially struggling, but in Texas, that's not the threshold. The Fifth Circuit requires near-permanent incapacity to repay, not current hardship. Being stretched thin and behind on payments doesn't clear the bar under Gerhardt. The distinction matters enormously when you're deciding whether to pursue an adversary proceeding.
- Failing to engage with income-driven repayment plans before filing. Courts may treat the failure to apply for IDR options as a negative factor on the good-faith prong. Even if your finances are severely compromised, the absence of any attempt to work with loan servicers or look into repayment alternatives can undercut an otherwise viable case. In re Thomas, 931 F.3d 449 (5th Cir. 2019).
- Waiting for Congress to fix this. Legislative reform of student loan discharge in bankruptcy has been discussed for years. It hasn't passed. The Fifth Circuit's current standard under Gerhardt is binding today, and it's the standard your case will be judged against if you pursue discharge in a Texas bankruptcy court.
Frequently Asked Questions About the Brunner Test for Student Loans in Texas
Brunner test requirements and Texas standards
What do you have to prove under the Brunner test for student loans?
Discharging student loans requires proving the Brunner test for student loans: you can't maintain a minimal standard of living, the hardship will persist, and you acted in good faith.
Those elements arise under 11 U.S.C. § 523(a)(8), which treats most education debt as nondischargeable unless "undue hardship" is proven in an adversary proceeding. In Texas (Fifth Circuit), courts apply Brunner through binding precedent like In re Gerhardt, 348 F.3d 89 (5th Cir. 2003), and the second "persistence" prong is often the gatekeeper. Judges usually expect documents, not just testimony: a realistic household budget (housing, food, transportation, healthcare/medical bills), proof of income, and records of repayment efforts (payments, deferments/forbearances, IDR applications, and servicer communications). A common mistake is building the case around today's shortfall without credible, forward-looking evidence that your circumstances are likely to last for a significant portion of the repayment period.
Is the Brunner test hard to pass in Texas?
Yes, Texas courts apply a strict Brunner standard, often requiring evidence of near-permanent inability to repay, not just tight finances.
Texas is in the Fifth Circuit, and its bankruptcy courts are bound by decisions such as In re Gerhardt, which treats "undue hardship" as more than everyday financial pressure. The court looks beyond whether monthly student loan payments strain your budget; it focuses on whether you can meet basic needs and whether the limitations on repayment are likely to persist. That's why durable proof tends to matter more than a recent downturn: medical documentation of chronic conditions, disability records, advanced age with limited earning prospects, or long-term barriers to stable employment. Another practical point: prong one is math-heavy. If your expense list includes discretionary spending, a judge may discount it and conclude you could pay something. Strong cases usually pair a necessity-based budget with credible, forward-looking evidence that prong two is truly met.
Does every bankruptcy court use the Brunner test?
No, most courts use Brunner, but the Eighth Circuit applies a broader "totality of the circumstances" approach.
Where you file matters because the controlling test comes from your federal appellate circuit. Texas bankruptcy courts (including the Northern District of Texas) follow Fifth Circuit precedent, so Brunner, applied through cases like In re Gerhardt, governs in Texas. The Eighth Circuit's totality approach does not apply here. Even among Brunner circuits, courts interpret the prongs through their own precedent, which changes how demanding the "persistence" and "good faith" showings are. The practical takeaway is that you typically cannot choose a friendlier standard by preference; bankruptcy venue is tied to where you live or have assets. So the most realistic approach is building evidence that satisfies the Texas standard rather than relying on national summaries describing a different circuit's rules.
The discharge lawsuit process and DOJ attestation
How do you ask a Texas bankruptcy court to discharge student loans?
- File a bankruptcy case (Chapter 7 or 13) in Texas federal bankruptcy court.
- File an adversary complaint seeking discharge under 11 U.S.C. § 523(a)(8).
- Document income, necessary expenses, prognosis, and job limits to prove persistent hardship.
- Show good faith through payments, IDR efforts, deferments, and servicer communications.
- Present evidence at trial or settlement; the judge may grant full or partial discharge.
Student loans are not reviewed automatically in your bankruptcy case, so the adversary proceeding is the step that puts discharge in front of the judge. Texas courts still apply Brunner to education debt that falls within 11 U.S.C. § 523(a)(8), and all three prongs must be proven. For federal student loans, DOJ guidance issued on November 17, 2022 introduced an attestation process that can lead DOJ lawyers to recommend discharge in appropriate cases, but it does not change the legal test. Private student loan cases do not use the DOJ attestation process, and some private loans may fall outside § 523(a)(8) altogether. In re Crocker, 941 F.3d 206 (5th Cir. 2019).
Does the DOJ attestation process change the Brunner test in federal student loan cases?
No, DOJ guidance can simplify federal cases, but the bankruptcy judge still applies § 523(a)(8) and Brunner.
In November 2022, the Department of Justice issued guidance directing its attorneys to use a standardized Attestation Form when evaluating federal student loan discharge requests. The attestation is designed to track the three Brunner prongs: current finances (minimal standard of living), future circumstances (persistence), and past efforts (good faith). If DOJ agrees the facts support "undue hardship," it can recommend discharge (sometimes partial) instead of automatically opposing the case. The key limitations are scope and authority: this process applies to federal loans, not private loans, and it does not bind the court. The judge still decides whether the Brunner elements are met under 11 U.S.C. § 523(a)(8). Practically, accuracy matters; inconsistent budgets or missing records can slow review and create credibility problems.
Chapter 13, IDR plans, and practical outcomes
Can student loans be discharged in Chapter 13 bankruptcy?
No, a regular Chapter 13 discharge usually does not erase student loans that fall within 11 U.S.C. § 523(a)(8). Those debts can be paid through the plan, but the balance often survives unless the court grants an undue-hardship discharge. 11 U.S.C. § 1328(a)(2).
Chapter 13 can still help because it structures payments over time and can address other debts while you're under court protection. But debts covered by 11 U.S.C. § 523(a)(8) are excepted from the ordinary Chapter 13 discharge unless the court finds undue hardship in an adversary proceeding. Some private education debts fall outside § 523(a)(8), so dischargeability turns on the loan's actual terms and statutory fit. In re Crocker, 941 F.3d 206 (5th Cir. 2019); In re Henry, 944 F.3d 587 (5th Cir. 2019).
Do I have to apply for an income-driven repayment plan before seeking a discharge?
No, but skipping income-driven repayment can undercut the "good faith" prong of the Brunner test.
The third Brunner prong looks at what you did before filing: whether you tried to work with your servicer, sought deferment or forbearance when appropriate, kept expenses reasonable, and made payments when you could. Courts may also consider whether you looked into income-driven repayment, but that issue is not dispositive by itself. In federal student loan cases, DOJ guidance says payment history and IDR participation are relevant, not controlling. In re Thomas, 931 F.3d 449 (5th Cir. 2019).
When is a student loan adversary proceeding worth pursuing in Texas?
It's worth pursuing when your evidence can satisfy Brunner: no room in a basic budget, long-term barriers to higher earnings, and documented repayment efforts.
An adversary proceeding is a separate lawsuit inside the bankruptcy case, so it adds time, expense, and litigation risk beyond the main bankruptcy filing. In Texas, the biggest go/no-go issue is usually prong two: whether your hardship is likely to persist under Fifth Circuit precedent such as In re Gerhardt. If your situation is temporary (a short-term job loss or a medical issue with an improving prognosis), the odds are typically low even if you are behind on monthly student loan payments. On the other hand, cases with strong medical documentation, fixed income with limited prospects, or other durable barriers can be more realistic, especially when paired with a clear record of good-faith repayment efforts. A practical way to decide is to audit your proof: necessity-only budget, forward-looking records, and clean repayment/communication history. Without that foundation, litigation may simply confirm a denial.
Talk to a Texas Bankruptcy Attorney About Your Student Loans
The Brunner test is used when you seek to discharge student loans that fall within 11 U.S.C. § 523(a)(8) in Chapter 7 or Chapter 13 bankruptcy. Contact an attorney at Warren & Migliaccio, L.L.P. at (888) 584-9614. We can review your financial circumstances to determine whether you may meet the Brunner test. Call (888) 584-9614 for a free consultation. 11 U.S.C. § 523(a)(8); 11 U.S.C. § 1328(a)(2).
Legal Authorities
¹ 11 U.S.C. § 523(a)(8) ² Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987) ³ In re Gerhardt, 348 F.3d 89 (5th Cir. 2003) ⁴ Fed. R. Bankr. P. 7001(6); Fed. R. Bankr. P. 4007(b) ⁵ DOJ Guidance for Department Attorneys Regarding Student Loan Bankruptcy Litigation (Nov. 17, 2022)
This article is for informational purposes only and does not create an attorney-client relationship.
