Bankruptcy Court Grants Partial Discharge of Student Loan

In August, 2019, a Bankruptcy Court in Oregon granted a partial discharge of a student loan owed by an attorney who represents indigent criminal defendants. The attorney paid her student loans for 11 years. Notwithstanding, she owed about $198,000 to ECMC on federal loans, and over $50,000 on private loans sold to National Collegiate Student Loan Trusts. The Debtor defaulted on the NCSLT loans. The trusts accelerated the loans and filed suit.

The Debtor filed under Chapter 7 and then filed an adversary proceeding to discharge the student loans. The Debtor settled with ECMC to allow an income based repayment under REPAYE. Based on her income, the monthly payment to ECMC was set initially at $479 per month. She went to trial against the trusts.

To obtain a discharge of a student loan debt, a debtor must show that excepting the debt from discharge would impose an undue hardship on the debtor and the debtor’s dependents. Undue hardship is not defined in the Bankruptcy Code. In determining whether an undue hardship existed, Oregon court applied the Brunner test. (It should be noted that bankruptcy courts in New Jersey also apply the Brunner test.)

Under Brunner, to show undue hardship, a debtor must demonstrate that, given current income and expenses, she cannot maintain a minimum standard of living if the student loans were to be paid according to their terms; that this situation is likely to persist for a significant portion of the repayment period; and the debtor has made a good faith effort to repay the loan. In many cases, the second prong of the test (situation likely to persist) creates difficult proof problems for the college educated, younger debtor without health issues.

The debtor’s schedules indicated negative income of $474. However, the Court found that some of her expenses were not reasonable and were backed out. Given the monthly payment to ECMC, however, the Court found that the Debtor could not maintain a minimal standard of living if she had to pay the NCSLT loans which could come to over $900 per month based on the Oregon wage garnishment statute. That got the debtor over the first prong of Brunner. In regard to the second prong, the court found that the debtor was in a niche practice and her opportunity to generate more income over the life of the loans was not realistic Moreover, if her income increased, her monthly payment to ECMC would increase. I believe that judge conducted the proper analysis of the second prong; however, many courts would have looked at her age and law degree, and concluded reflexively that she could have sufficient future earning power to make the payments.

The Court also found that the debtor acted in good faith. 11 years of payments coupled with the fact that the trusts were under no requirement to give the debtor an income based repayment plan that she could afford.

The Court found that the debtor proved an undue hardship under the Brunner test. However, the Court did not discharge the NCSLT loans in total. Because some of her expenses could be cut, and there was a likelihood that her income could increase somewhat in the future, the Court discharged roughly $35,000. However, the Court said that if the debtor trimmed her expenses, she could afford to repay $16,500 of the NCSLT loans at 0% interest.

I believe this is a good result based on a thorough analysis by the judge. However, we are talking about an unpublished opinion out of Oregon. NJ bankruptcy judges are not bound by this opinion but should consider the thoughtful analysis of that court.

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