Tips for Submitting a Borrower Defense Reconsideration Application
By Nicole Camargo Almeida and Theresa Sweet
In recent weeks, many Sweet “post-class applicants”—student loan borrowers who submitted borrower defense to repayment (BD) applications between June 23 and November 15, 2022—have received denial letters from the Department of Education (the Department). It’s important to know that post-class applicants who receive denial letters can request reconsideration by providing additional information and documentation to the Department. Below you can find information on best practices for reviewing your denial letter and applying for reconsideration. There is no deadline for submitting a request for reconsideration, but we recommend that you do so as soon as you can.
Carefully Review Your Denial Letter
Post-class applications are reviewed under the 2016 borrower defense regulations. Under these regulations, you are required to show, as to each allegation of misconduct by your school, that: (1) there was a misrepresentation; (2) that was substantial; (3) that you reasonably relied on; (4) to your detriment. Your denial letter explains why the Department believes that your application didn’t meet this standard for each allegation included in your application.
You should carefully review the reasoning in your denial letter and think of additional details, explanations, and supporting evidence to address the information the Department says is necessary and missing from your original application.
You should also compare the reasoning in your denial letter to the statements you made in your BD application. Some borrowers have found that the explanations given in their denial letters do not match or misstate what they wrote in their applications. You should point out any such errors in your request for reconsideration.
Note: If you use ChatGPT or another AI service to compare your application to the denial letter, or to help you draft your request for reconsideration, you should confirm the accuracy of the AI’s analysis by carefully reviewing the documents yourself. AI services make mistakes, and without your own review, you run the risk of missing obvious errors or failing to respond to key points in your denial letter.
Prepare Your Request for Reconsideration
The Department’s denial letters include the following instructions for what to include in requests for reconsideration:
Your borrower defense case number;
An explanation of why you believe that the Department decided your borrower defense to repayment claim incorrectly; and
New evidence (beyond what you previously submitted and what was identified as evidence in your denial letter) that demonstrates why the Department should approve your borrower defense to repayment claim.
Explain Why Your Application Was Decided Incorrectly
You should clearly and carefully identify any errors that you found in your denial letter and provide another narrative explaining why you are entitled to discharge. Your narrative should include as much detail as possible, including 1) exactly what facts your school presented to you; 2) how, when, and by whom those facts were presented to you; 3) how those facts were false or misleading; and 4) how you later learned that those facts were false or misleading. Where possible, you should cite to new evidence and include that evidence in your application.
Make Sure You Understand Reliance
“Reliance,” in the context of your BD application, means that not only did your school misrepresent or make false statements about the program you enrolled in, but these misrepresentations were a significant reason you enrolled in the program. To put it another way, explaining your “reliance” means explaining that you would not have enrolled in the school if you had known the truth about your program, its cost, and/or its outcomes.
If you misunderstood the meaning of “reliance” and checked “no” on your original BD application for any of the boxes asking whether you relied on your school’s misrepresentations when you chose to enroll, you should explain any misunderstanding you had about the form of the question and identify the ways in which your original narrative showed that you did, in fact, rely on the statements at issue.
If you did not rely on your school’s misrepresentations, and you would have enrolled in your program even if you had known the truth about your program, you should not request reconsideration.
Find Additional Evidence of Misconduct by Your School
The 2016 BD regulations require that a reconsideration request must include “new evidence”—that is, evidence that was not included in your original application. A sworn statement explaining your school’s misconduct is acceptable evidence, and you can attach a signed, detailed narrative to your reconsideration request. Additional documents will strengthen your application and should be included when available. A chart of some different types of documents that could be helpful to support your request for reconsideration is available here.
Many of the misrepresentations that students were subjected to were oral and can be difficult to document. You can include details about any oral misrepresentations in your sworn statement. You may also be able to find evidence of these misrepresentations in one of the many online communities of former students from particular predatory for-profit schools.
Do Not Include New Allegations
The reconsideration process allows you to provide additional support for the allegations included in your original BD application; it is not an opportunity to bring new allegations. For example, if your original application alleged that your school misrepresented the cost of your program and misled you about the importance of enrolling immediately, your reconsideration request should provide new evidence about the stated versus actual program cost and the pressure you faced to enroll. If you believe that you have additional bases for BD discharge, such as misrepresentations regarding job placement rates or program outcomes, you must file a separate BD application raising those allegations.
How to Submit Your Request for Reconsideration:
The last pages in your denial letter include instructions on how to submit your request for reconsideration.
The Department instructs you to log into studentaid.gov using your FSA ID, navigate to the “status center,” open the relevant borrower defense case, and click on “Request Reconsideration.”
You can also mail your request to:
U.S. Department of Education
Federal Student Aid Information Center
P.O. Box 1854, Monticello, KY 42633
To confirm receipt of your request for reconsideration, or for other questions about the status of your request for reconsideration, you can contact the Department’s Borrower Defense Customer Contact Center at 1-855-279-6207.
Please note that Sweet class members have reported issues communicating with the Department about their BD applications. If you are unable to submit your request for reconsideration online, or to upload documents related to your request, please contact sweet@ed.gov. Your email should include your name, borrower defense case number, and a description of the problem you’re having with the online process. If your attachments are too large for the online submission system, you can attach those materials to an email to sweet@ed.gov and request that the Ombudsman’s office associate your submission with your BD file.
Request Information About Your Case:
One other optional step you can take is to file a Privacy Act request for all files related to your BD case, including copies of all materials that the Department considered when denying your application. Among other things, you want to make sure that the Department received and considered all of the materials you sent in with your original application, especially if these materials are not referenced in your denial letter. The Department is also obligated to disclose any information it received from the school that it relied on in reaching its decision.
Instructions to file a Privacy Act Request can be found on the Department’s website here. When making this request, you can refer to 34 C.F.R. 685.222(e)(3)(ii), which states that “for borrower defense applications under this section, upon the borrower’s request, the Department official identifies to the borrower the records the Department official considers relevant to the borrower defense. The secretary provides to the borrower any of the identified records upon reasonable request of the borrower.”
Please do not wait for a response to your Privacy Act request before submitting your reconsideration application! The Department is currently taking many months to respond to Privacy Act requests. If you do file a Privacy Act request, you can refer to it in your reconsideration application.
What to Expect Next
The 2016 regulations do not give the Department a deadline for processing reconsideration requests. You are entitled to remain in administrative forbearance until your request is processed.
We are monitoring the reconsideration process and will do everything we can to make sure that the Department fulfills its obligations. You can follow us on social media to stay updated, and check the Sweet case page for the latest developments.
The next Sweet hearing—a case management conference with Judge Gilliam, the new district court judge assigned to the case—will be on Tuesday, February 10, at 2 p.m. PT / 5 p.m. ET. Consider attending this virtual hearing to show how engaged class members are as Judge Gilliam takes over following Judge Alsup’s retirement. The Zoom link will be available here under “Access to Public Zoom Hearings.”
PPSL will also be holding a webinar on Thursday, February 26, at 7 p.m. ET / 4 p.m. PT, where PPSL attorneys will give an update on any litigation developments and provide information about how to apply for reconsideration if you are a post-class applicant who received a denial notice. You can register for the webinar here.
This blog post provides information on the BD reconsideration process as it applies to borrowers covered by the Sweet litigation. It is not intended as legal advice and does not create an attorney-client relationship between you and PPSL.
