MARY D. FRANCE, Chief Judge.
Jared and Elizabeth Rumer ("Debtors") filed their bankruptcy petition and included on their schedule of creditors holding unsecured nonpriority claims fourteen claims related to student loan debt. Debtors now allege that the loans upon which the claims arose are not "qualified educational loans" and thus, are subject to discharge under 11 U.S.C. § 1328(a). Alternatively, Debtors argue that excepting the loans from discharge under 11 U.S.C. § 523(a)(8) will impose an undue hardship on Debtors and their dependent child.
Before me are motions for summary judgment filed by three of the answering Defendants: Loan Science ("Loan Science") as servicer for Affiliated Computer Services ("ACS"); JP Morgan Chase ("Chase"); and the United States Department of Education (the "USDE"). These Defendants seek entry of judgment: (1) that their loans are "educational loans" within the purview of § 523(a)(8), and (2) that repayment of their loans will not be an "undue hardship" for Debtors. Debtors have filed a motion for summary judgment on the same issues against the following defendants: The Educational Resource Institute ("TERI") as assignee of PNC Bank; Keybank, National Collegiate Trust ("NCT"); and Chase (collectively "Summary Judgment Respondents"). For the reasons discussed below, Debtors' motion for summary judgment will be denied, and the motions of Loan Science, Chase, and the USDE will be granted in part and denied in part.
On April 30, 2010, Debtors filed a bankruptcy petition under Chapter 13 and scheduled $456,221 in unsecured student loans. On April 12, 2011, Debtors filed the above-captioned complaint requesting the Court to determine that their student loans were subject to discharge. The following entities filed answers to the complaint: Keybank, Loan Science, Chase, National Collegiate Trust ("NCT"), the USDE, TERI, and Educational Credit Management Corporation ("ECMC") as the assignee of two named Defendants— the Pennsylvania Higher Education Assistance Agency ("PHEAA") and the California Student Aid Commission ("CSAC").
On May 20, 2010, Debtors filed their schedule of creditors holding unsecured nonpriority claims, identifying the following claims as "student loans":
Creditor Incurred by Date claim incurred Amount ACS/CLC Trust II Husband 2006 $ 3,313 AES Wife 2005 $ 3,312 AES Husband 2001-02 $ 5,002 AES/Keybank Wife 2004 $ 16,551 AES/NCT Wife 2004-06 $ 81,300 AES/NCT Husband 2006 $ 35,490 AES/PHEAA Husband 2004-07 $ 27,000 AES/PNC Husband [No date provided] $ 23,798 AES/US Nat'l Bank Wife 2002 and 2004 $ 3,816 Chase Husband 2007 $ 26,364 Education Finance Joint 2006 $176,046 Partner 2 Sallie Mae Wife 2004-09 $ 40,000 Sallie Mae Husband 2003-07 $ 9,611 SLC Conduit Husband 2007 $ 4,618 ________TOTAL $456,221
Of the total debt reported on Debtors' schedules, $135,196 is attributable to educational loans for Jared Rumer ("Jared") and $144,979 is attributable to educational loans for Elizabeth Rumer ("Elizabeth"). Debtors also reported joint educational loan debt of $176,046.
The amount of debt attributable to educational loans as reported in Debtors' schedules is similar to the total amount included in the proofs of claims filed in the case. However, the current holders of these obligations are not identical to the creditors reported on Debtors' schedule of non-priority unsecured creditors. Lenders and assignees who have filed proofs of claims for student loan debt are as follows:
Creditor Assignor Incurred by Amount ECMC Citibank NA Jared $ 4,645.71 Chase N/A Both Debtors $ 26,300.27 Loan Science N/A Jared $178,873.81 Keybank N/A Elizabeth $ 6,591.43 Keybank N/A Elizabeth $ 9,977.44 Keybank N/A Elizabeth $ 6,711.78 ECMC (CLC) CSAC Elizabeth $ 3,531.57 ECMC PNC(AES/PHEAA) Elizabeth $ 3,771.62 ECMC AES/PHEAA Elizabeth $ 3,855.30 Sallie Mae/USAF3 N/A Jared $ 8,773.98 Sallie Mae/USAF N/A Elizabeth $ 7,044.51 Sallie Mae/USAF N/A Elizabeth $ 3,984.92 Sallie Mae/USAF N/A Elizabeth $ 11,261.71 National Collegiate N/A Both Debtors $118,690.94 Trust (First Marblehead Corp.) Sallie Mae/USAF N/A Elizabeth $ 4,294.20
Sallie Mae/USDE N/A Elizabeth $ 8,243.57 USDE N/A Jared $ 9,321.31 Sallie Mae N/A Jared $ 846.98 TERI/PNC N/A Both Debtors $ 24,707.21 ___________ Total $441,428.26
Jared is 29 years of age. He received a bachelor's degree in business administration from Shippensburg University ("Shippensburg") in 2007. Between August 2001 and July 2008 Jared attended the Pennsylvania College of Technology ("PCT"), Indiana University of Pennsylvania ("IUP"), Lindenwood University (Missouri) ("Lindenwood"), Harrisburg Area Community College ("HACC"), Shippensburg and the University of Phoenix ("Phoenix")
Elizabeth is 27 years of age. She received a bachelor's degree in business from Phoenix in 2010. In the course of her post-secondary education, she also attended IUP, Lindenwood, HACC, and Western International University ("WIU").
In the course of their bankruptcy case, Debtors filed schedules describing their monthly household income and expenses. In Amended Schedule I dated December 17, 2010, Debtors stated that Elizabeth was employed as a human resources specialist for the United States Department of Defense and her monthly net income was $3086. In Amended Schedule I, Debtors indicated that Jared obtained "seasonal employment," but the schedule included no information on his income. When Debtors filed an Amended Schedule J on December 17, 2010, they reported current monthly expenses totaling $3577.16. On their Amended Schedule I, Debtors reported monthly income of $3086.68, creating a monthly deficit of $490.48.
In the answers to interrogatories filed in the instant adversary, Debtors state that Jared obtained full-time employment at Plant Site Logistics in March 2011. They also report that Elizabeth's current annual salary is $74,872 and that Jared's current annual salary is $34,008. Debtors omitted one significant expense on Amended Schedule J—the cost of day care for their 18-month-old child, which Jared stated was $568 per month. There is no information in the record on whether Debtors still have a monthly deficit in their household budget when Jared's income is considered and the day care expenses are included.
Debtors currently reside in a home in Newville, Pennsylvania that they rent from Elizabeth's aunt and uncle. Newville is midway between Debtors' respective places of employment. Jared and Elizabeth each commute 45 to 60 minutes one way each day. At deposition, Jared described Debtors' agreement with their landlords as a "rent-to-own" arrangement, with the purchase price of the home being $168,000. He testified, however, that no portion of the $834 per month that they pay as rent is deducted from the principal of the purchase price. The home is a ranch style structure consisting of 1264 square feet of living space situated on approximately one acre of land. It has three bedrooms and two bathrooms.
Jared further testified that he has attempted to earn additional income through a shooting "business." In pursuit of this venture, he attended shooting competitions
The record contains few details regarding the efforts of either Debtor to repay any of the defendants in this case. Jared testified at deposition that no portion of Debtors' tax refunds had ever been used to pay student loans. With its motion for summary judgment, Defendant Loan Science submitted an affidavit stating that as of the petition date, the outstanding balance of the debt serviced by Loan Science was $183,675.25, with monthly payments due in the amount of $1509.75. The affidavit further stated that "Debtors have not made a payment on account of [this] obligation since September 9, 2008." (Loan Science Motion for Summary Judgment, Docket Item #26, Exhibit A.) The language of the affidavit is unclear as to whether payments were made to Loan Science prior to September 9, 2008.
With its motion for summary judgment, Defendant Chase submitted an affidavit stating that the original amount borrowed by Debtors was $21,593.45, with an unpaid balance on the date of the petition of $28,438.59. (Chase Motion for Summary Judgment, Docket Item # 46, Exhibit A.) The affidavit further stated that monthly payments were due on the obligation in the amount of $180.74, and that as of the date of the affidavit, Debtors had failed to make any payments whatsoever on the obligation.
With its motion for summary judgment, Defendant USDE submitted an affidavit stating that the original amount borrowed by Jared through the Federal Family Education Loan Program was $8824,
Jared testified at deposition that he had contacted Defendants AES and Loan Science to attempt to reduce his monthly payment obligation on the loans they service. He testified that Loan Science was unable to offer any assistance, while AES offered to send him information regarding forbearance agreements. He further testified that he had researched Debtors' eligibility for the William D. Ford Federal Direct Loan Program ("the Ford Program"),
Both Debtors are in good health, neither suffering from any form of impairment or disability that would prevent them from maximizing personal earnings in the future. Debtors' responsibilities as parents of a small child may affect their ability to obtain second jobs.
A court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts" such that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c), incorporated by Fed. R. Bankr.P. 7056. In deciding a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party. See Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d 862, 867 n. 2 (3d Cir.2012). "All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party." Fisher v. Matthews, 792 F.Supp.2d 745, 770-771 (M.D.Pa.2011) (citing White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988)).
To prosecute a motion for summary judgment, "[t]he moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that `the nonmoving party has failed to make a sufficient showing of an essential element of her case.'" Fisher, 792 F.Supp.2d at 771 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id.
Under 11 U.S.C. § 523(a)(8), educational loan debt cannot be discharged unless requiring a debtor to repay the debt will impose an "undue hardship" on the debtor or the debtor's dependents. The particular types of educational loans subject to this rule are:
11 U.S.C. § 523(a)(8).
Debtors allege that they are entitled to summary judgment because the loans held by the Summary Judgment Respondents do not qualify for protection under § 523(a)(8). I will address this aspect of Debtors' motion first.
Section 523(a)(8) protects four categories of educational loans from discharge: (1) loans made, insured, or guaranteed by a governmental unit; (2) loans made under any program partially or fully funded by a government unit or nonprofit institution; (3) loans received as an educational benefit, scholarship, or stipend; and (4) any "qualified educational loan" as that term is defined in the Internal Revenue Code. In re Weldon, 2008 WL 4527654, *2 (Bankr. W.D.Wash. October 1, 2008). In their motion for summary judgment, Debtors contend that the loans they obtained from the Summary Judgment Respondents do not fall within any of these categories.
The cases interpreting § 523(a)(8) have held that the initial burden is on the lender to establish the existence of the debt and to demonstrate that the debt is included in one of the four categories enumerated in § 523(a)(8). Raymond v. Northwest Educ. Loan Ass'n (In re Raymond), 169 B.R. 67, 69-70 (Bankr. W.D.Wash.1994), cited in In re Weldon, at *2; The Cadle Co. v. Webb (In re Webb), 132 B.R. 199, 201 (Bankr.M.D.Fla.1991). Accord In re Stone, 199 B.R. 753, 769 (Bankr.N.D.Ala.1996); In re Bachner, 165 B.R. 875, 881 (Bankr.N.D.Ill.1994); In re Phillips, 161 B.R. 945 (Bankr.N.D.Ohio 1993); In re Ealy, 78 B.R. 897 (Bankr. C.D.Ill.1987); In re Keenan, 53 B.R. 913 (Bankr.D.Conn.1985) (placing burden of proving that loan qualifies as a student loan "is consistent with the parties' relative access to information").
In their briefs responding to Debtors' motion, TERI, NCT, Keybank and Chase invoke the language of § 523(a)(8)(B) which protects from discharge "qualified educational loans" as defined by 26 U.S.C. § 221(d)(1). In turn, section 221(d)(1) of title 26 provides as follows:
26 U.S.C. § 221(d)(1) (italics added).
"The term `qualified higher education expenses' is further defined as `the cost of
Each of the colleges and universities attended by Jared and Elizabeth were Title IV eligible when the loans were made.
Debtors' narrow construction of this term conflicts with the interpretation of this phrase by bankruptcy courts addressing this issue. Most courts, including the Courts of Appeals for the Fifth and Seventh Circuits, have analyzed whether a loan is a qualified educational expense by focusing on the stated purpose for the loan when it was obtained, rather than how the proceeds were actually used by the borrower. See In re Sokolik, 635 F.3d 261, 266 (7th Cir.2011); Murphy v. Pennsylvania Higher Educ. Assistance Agency (In re Murphy), 282 F.3d 868, 870 (5th Cir. 2002). These courts determine the educational nature of the loan by focusing on the substance of the transaction creating the obligation. The "substance of the transaction test" recognizes that the purpose of § 523(a)(8) is to exempt entities that make educational loans from the effect of a borrower's bankruptcy discharge. Tift County Hospital v. Nies (In re Nies), 334 B.R. 495, 501 (Bankr.D.Mass.2005). "Section 523(a)(8) does not expressly state that only loans `used for tuition' are nondischargeable. Nor does it define educational loans as excluding living or social expenses." Murphy, 282 F.3d at 870. See also In re Sokolik, 635 F.3d at 266; In re Noland, 2010 WL 1416788, *3-4 (Bankr. D.Neb. March 30, 2010); In re Hayes, 2006 WL 4481999, *4 (Bankr.D.Md. October 11, 2006); In re Nies, 334 B.R. at 502; In re Riley, 2005 WL 6443619, *5 (Bankr. N.D.Tex. June 17, 2005); In re Hamblin, 277 B.R. 676 (Bankr.S.D.Miss.2002); In re Roberts, 149 B.R. 547, 551 (C.D.Ill.1993); Barth v. Wisconsin Higher Educ. Corp. (In re Barth), 86 B.R. 146, 148 (Bankr. W.D.Wis.1988). Section 523(a)(8) is concerned with the circumstances surrounding the origination of the loan, rather than what benefits the debtor may have derived. In re Wills, 2010 WL 1688221 (S.D.Ind. April 23, 2010). Thus, "rather than trying to determine whether a computer purchased with loan money was used for schoolwork, personal use or some combination of both," a bankruptcy court reviewing a § 523(a)(8) case "need only ask whether the lender's agreement with the borrower was predicated on the borrower being a student who needed financial support to get through school." In re Sokolik, 635 F.3d at 266.
In the matter before me, there is no genuine dispute that: 1) each of the Summary Judgment Respondents were providers of educational loans when Debtors applied; 2) Debtors applied to each lender in its capacity as a student loan lender; and 3) each loan was entered into when Debtors were college students. Accordingly, there is no genuine dispute that each of the loans at issue in this matter
Section 523(a)(8) does not define the term "undue hardship." Therefore, the courts must review the facts of each case to determine whether the circumstances justify discharge of the debt. In re Boston, 119 B.R. 162, 164 (Bankr. W.D.Ark.1990). Despite the fact-intensive nature of the "undue hardship" inquiry, summary judgment may nonetheless be appropriate where the relevant facts are uncontroverted, and no questions remain on controlling legal issues. In re Rice, 78 F.3d 1144, 1148 (6th Cir.1996).
In In re Faish, 72 F.3d 298 (3d Cir.1995), the Third Circuit adopted the three-pronged test set forth in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987) to determine whether forced repayment of student loan debt will be an "undue hardship" on a debtor. Under this test, "undue hardship" is dependent upon three factors: (1) whether a debtor is able to maintain a "minimal" standard of living for themselves and their dependents if forced to repay the loans; (2) whether additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period; and (3) whether the debtor has made a good faith effort to repay the loans. In re Faish, 72 F.3d at 304-05 (citing In re Brunner, 831 F.2d at 396).
As illustrated by the Faish and Brightful cases, the standard that the Debtors sub judice must meet to discharge their student loans is high and difficult to meet. In order to grant Debtors' motion for summary judgment, the record must show that Debtors have met all three elements of the Faish test. If the record does not support any one of those elements, then Debtors' motion must be denied. Conversely, if the
Debtors argue that repaying their student loans constitutes an undue hardship, but the record fails to support a judgment in their favor on any of the Brunner factors. The first factor requires Debtors to prove that they are unable to maintain a "minimal" standard of living for themselves and their dependents if forced to repay the loans. The first prong of the Brunner test requires more than "a showing of tight finances." In re Faish, 72 F.3d 298, 306 (3d Cir.1995). "The proper inquiry is `whether it would be unconscionable to require [the debtor] to take any available steps to earn more income or to reduce her expenses.'" In re Shankwiler, 208 B.R. 701, 705 (Bankr.C.D.Cal.1997) (quoting Faish, 72 F.3d at 307). At this point in the proceeding, I have insufficient evidence before me to determine whether it would be appropriate to require Debtors to increase their income or reduce expenses. Therefore, I am unable to enter summary judgment in their favor.
The second Brunner factor has been described as "the heart of the Brunner test ... and is often difficult to prove because it requires the debtor to show that she will be unable to pay her student loan debt in the future for reasons outside her control." In re Matthews-Hamad, 377 B.R. 415, 422-23 (Bankr.M.D.Fla.2007) (citations omitted). This factor requires a debtor not only to prove that he currently is financially unable to pay his loans but also that he has a total incapacity now and in the future to pay his debts for reasons not within his control. In re Fish, 302 B.R. 503, 508 (Bankr.W.D.Pa.2003) (quoting Faish, 72 F.3d at 307). Because there are insufficient facts on the record for me to determine whether Debtors can meet the first Brunner factor, I also am unable to determine whether the second factor is met as well.
The final Brunner factor requires Debtors to prove that they have made a good faith effort to repay their student loans. Good faith is measured by a debtor's "efforts to obtain employment, maximize income, and minimize expenses ...
As I determined in reviewing Debtors' motion for summary judgment, there is inadequate evidence in the current record for me to rule in favor of Debtors. Although Debtors bear the ultimate burden to establish the existence of undue hardship, deficiencies in the current record likewise make it impossible for me to find in favor of Defendants. Accordingly, the lenders' motions for summary judgment must be denied. However, there are specific allegations in the lenders' motions for summary judgment that I will address to clarify the issues to be resolved at trial.
To support its motion for summary judgment, Loan Science challenges Debtors' ability to prove that they cannot currently maintain a "minimal standard of living" if forced to repay their loans in full. Loan Science argues that Debtors' schedules of income and expenses support its position that Debtors have additional disposable income they could commit to repaying their student loans. Specifically, the lender asserts that Debtors' housing, food, transportation, and utility expenses (i.e. cell phone and cable) exceed the amounts necessary to maintain a minimal standard of living. If Debtors' expenses in these categories are reduced, Loan Science asserts that they will have "excess cash flow of approximately $1255 a month." (Loan Science Motion for Summary Judgment, Docket Item # 26, ¶ 24.)
As discussed above, the inquiry contemplated by the first Brunner factor is not whether Debtors have excess income shown on Amended Schedule J, but whether they have sufficient monthly income to maintain a minimal standard of living while also paying their monthly student loan obligations. See In re Brunner, 831 F.2d at 396. An issue not addressed by any of the lenders is whether Debtors could repay all student debt if they reduced their expenses to levels advocated by the lenders. The monthly payment to Loan Science alone is $1509.75, and its claim is 40% of the aggregate debt to all student loan lenders as set forth in the proofs of claim. At their deposition, Debtors estimated that their aggregate student
An appropriate Order will be entered.