JEFFERY A. DELLER, Bankruptcy Judge.
The matter before the Court is an Adversary Complaint to determine dischargeability of student loan debt (the "Complaint") filed by Gerald S. Lepre, Jr. (the "Debtor"). This matter is a core proceeding over which this Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(A), (I) and (O), and 28 U.S.C. § 1334. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052. For the reasons set forth below, judgment will be entered in favor of defendant, Educational Credit Management Corporation ("ECMC"), determining that the Debtor's student loan debt is non-dischargeable pursuant to 11 U.S.C. § 523(a)(8).
The Debtor filed for relief pursuant to Chapter 7 of Title 11 of the United States Code on January 19, 2011. (See Case No. 11-20288-JAD, Doc. #1). On March 14, 2011, the Debtor filed the instant adversary proceeding
The United States Department of Education filed an answer on March 28, 2011, consenting to the dischargeability of its de minimis due and owing student loan balance of $53.00. (See Doc. #11).
On April 13, 2011, the Pennsylvania Higher Education Assistance Agency d/b/a American Education Services (AES) (hereinafter "PHEAA"), filed an answer explaining
A Motion to Substitute/Intervene by Educational Credit Management Corporation as Party Defendant was filed on March 2, 2011, which identified ECMC as assignee of all student loan obligations sought to be discharged by the Debtor in the adversary proceeding.
The pre-trial and discovery process was contentious. This Court originally scheduled a trial on this matter for August 30, 2011, with discovery to close on July 29, 2011. (See Doc. #21). However, on August 8, 2011, ECMC filed a Motion to Compel Response to Discovery and Continuance of Trial, requesting that the Court continue the trial and extend discovery deadlines, citing alleged non-cooperation by the Debtor. (See Doc. #47). The Debtor responded by filing his own Motion to Compel Discovery and/or Motion for Sanctions for Failure to Answer Discovery, wherein the Debtor requested that this Court discharge all of the Debtor's outstanding student loans as a sanction for ECMC's alleged failure to adequately respond to Debtor's discovery requests.
At the December 6, 2011 trial, both the Debtor and ECMC submitted exhibits that were previously submitted on the docket along with the pre-trial memoranda of both parties.
The Debtor presented no additional evidence or testimony at the trial and, instead, rested on the submission of his trial exhibits. (See Audio Recording of Hearing Held in Courtroom D, December 6, 2012 (1:51-1:58 PM)). Subsequently, the counsel for ECMC made an oral motion for a judgment as a matter of law.
Section 528(a)(8) of the Bankruptcy Code does not permit an individual debtor to be discharged from any debt for educational loans "unless excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor's dependents."
The United States Court of Appeals for the Third Circuit has adopted the test for "undue hardship" outlined in Brunner v. New York Higher Education Services Corp., 831 F.2d 395 (2d Cir.1987). Pennsylvania Higher Education Assistance Agency v. Faish, 72 F.3d 298, 306 (3d Cir.1995) cert. denied, 518 U.S. 1009, 116 S.Ct. 2532, 135 L.Ed.2d 1055 (1996).
Under the Brunner test, student loan debt is not dischargeable unless the debtor can establish that: "(1) based on current income and expenses, debtor cannot maintain a minimal standard of living for herself and her dependents if she has to repay the loan; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the loan repayment period; and (3) debtor has made a good faith effort to repay the loan." Shilling v. Sallie Mae Servicing Corp. (In re Shilling), 333 B.R. 716, 721 (Bankr.W.D.Pa.2005) (citing Faish, 72 F.3d at 304-05).
Each of the three prongs must be satisfied individually before a discharge of the obligation can be granted. Faish,
In the instant matter, the Debtor has failed to meet his burden with regard to each prong of the Brunner test.
The first prong of the Brunner test requires the Debtor to demonstrate that he could not afford to maintain "a `minimal' standard of living" if forced to repay his student loans. Faish, 72 F.3d at 304-05 (quoting Brunner, 831 F.2d at 396). The Debtor has not established a clear enough picture of his income and expenses to establish by a preponderance of the evidence that he would be incapable of maintaining a "minimal standard of living" if forced to repay the student loans in question. In fact, the evidence adduced at trial is such that the Debtor has failed to accurately account for all his income and expenses. As a result, the Debtor has failed to meet the first prong of the Brunner test.
On the Debtor's schedules I and J, he lists his combined average monthly income as $1,501.07 and his average monthly expenses as $2,047.90. (See Doc. #60, Plaintiff's Trial Exhibit 2). While it appears as though the Debtor has a negative net monthly income, the remainder of the record shows that the Court cannot rely on the information in the Debtor's schedules. Indeed, the Court is not required to accept the Debtor's income and expenses listed on his schedules at face value, but rather has a duty to ensure that the income and expenses "reflect a true picture of the debtor's financial situation." See In re Goodman, 449 B.R. 287, 293 (Bankr. N.D.Ohio 2011) (quoting Mitcham v. U.S. Dep't of Educ. (In re Mitcham), 293 B.R. 138, 144 (Bankr.N.D.Ohio 2003)).
A simple review of the Debtor's income reveals inconsistencies. For example, the payment advices submitted by the Debtor show that he received total net monthly take home pay of $1,561.17 in December of 2010 and $1,567.44 in January of 2011. (See Doc. #72, Defendant's Trial Exhibit 2, pp. 23-28). These amounts exclude a bonus in the amount of $916.12 that the Debtor received on December 15, 2010. (See Defendant's Trial Exhibit 21, handed up at the Hearing Held in Courtroom D, December 6, 2012, p. 25). Additionally, the Debtor admits that the income figure in his Schedule I is not current, as he provided evidence of a wage garnishment in the amount of $486.00 per month for child support beginning in June of 2011. (See Doc. # 60, Plaintiff's Trial Exhibit 5; see also Audio Recording of Hearing Held in Courtroom D, December 6, 2011 (2:45-2:47 PM)). While the Debtor repeatedly asserted that his bi-monthly pay is approximately $540 following this garnishment (see Audio Recording of Hearing Held in Courtroom D, November 8, 2011 (10:50-10:51 AM); Audio Recording of Hearing Held in Courtroom D, December 6, 2011 (2:46-2:47 PM)), he was unable to explain a subsequent increase in his monthly income of approximately $225.00 evidenced by his Bank Statements. (See id. at (2:47-2:48 PM); see also Defendant's Trial Exhibit 21, pp. 53, 55, 58, 60).
The Court is faced with a similar problem with regard to the Debtor's expenses. At the center of this issue is that fact that the schedules on which the Debtor relies are hopelessly out of date and have not
There are several other inconsistencies in the Debtor's evidence and testimony, which prevent the Court from obtaining a clear picture of the Debtor's financial condition. By way of example, the Debtor insists on his Schedule B that as of the petition date he had a balance in his checking account of $0.00. (See Plaintiff's Trial Exhibit 2). However, a review of his Bank Statements show that the Debtor actually had a balance of $268.54 on the date he filed his bankruptcy petition (See Defendant's Trial Exhibit 21, p. 32) and a balance of $729.21 on the date he filed his Schedule B. (See Defendant's Trial Exhibit 21, p. 34).
From a review of the existing record, it is completely unclear to the Court whether the Debtor's monthly expenses actually outweigh his monthly income following the child support garnishment.
As the Debtor has failed to satisfy the first prong of the Brunner test, the Court's inquiry could end here. See Flickinger-Luther v. ECMC (In re Flickinger-Luther), 462 B.R. 157, 163 (Bankr.W.D.Pa. 2012) (citing Fabrizio v. U.S. Dep't of Educ. Borrower Servs. Dep't Direct Loans (In re Fabrizio), 369 B.R. 238, 244 (Bankr. W.D.Pa.2007)). However, to ensure a complete analysis this Court will evaluate whether the Debtor has met his burden with regard to the second and third prongs of the Brunner test.
Under the second prong of the Brunner test, the Debtor must prove that his purported inability to maintain a minimal standard of living if forced to repay his student loans will persist for "a significant portion of the loan repayment period." Faish, 72 F.3d at 305. The Third Circuit has described the second prong as a "demanding requirement," which mandates that the Debtor prove "a total incapacity... in the future to pay [his] debts for reasons not within [his] control." Brightful, 267 F.3d at 328 (quoting Faish, 72 F.3d at 307). A finding of undue hardship under the second prong requires "unique or extraordinary circumstances", which make it unlikely that the debtor would ever be capable of repaying his obligation. Id. (quoting In re Ballard, 60 B.R. 673, 675 (Bankr.W.D.Va.1986)).
The Debtor alleges that his disease of alcoholism may prevent him from satisfying his student loan obligations. (Doc. # 195, Brief in Support of Plaintiff's Request for Discharge of his Student Loans, p. 6). Based on the record before it, this Court finds that the Debtor's alcoholism does not constitute a "special circumstance" that would result in the Debtor satisfying the second prong of the Brunner test.
The Debtor is currently employed and testified that he has been sober for three or four years. (See Audio Recording of
While the Court is sensitive to the fact that the Debtor believes that he will have to endure a life long struggle with alcoholism, it appears that the Debtor's struggle is not currently impacting his ability to work and will not impact his earning potential in the foreseeable future. This Court's decision is supported by case law which holds that the possibility of Debtor's relapse into addictive behavior is not sufficient to satisfy the second prong of the Brunner test once the Debtor has been successfully able to maintain employment. See e.g., Roach v. United Student Aid Fund (In re Roach), 288 B.R. 437, 446 (Bankr.E.D.La.2003) (citing In re Albert, 25 B.R. 98 (Bankr.N.D.Ohio 1982)). As such, the Debtor has not met his burden of proving how his disease of addiction would impair his ability to work. See Brightful, 267 F.3d at 330 (finding that the party seeking discharge based on a medical condition has the burden of proving how the condition impairs the party's ability to work).
Furthermore, at the time of trial, the Debtor was only thirty-four (34) years of age. (See Audio Recording of Hearing Held in Courtroom D, December 6, 2011 (2:56-2:57 PM)). The Debtor has also demonstrated that he is articulate and intelligent. This indicates, and the Debtor admits, that he has a substantial working life ahead of him. (See id.) In addition, the Debtor is currently employed full-time as a paralegal at a law firm. (See Case No. 11-20288, Doc. # 86, Exhibit 2). The Debtor's full-time employment status was obtained pursuant to a promotion in November of 2010. (See id.). As a result of his employment, the Debtor enjoys an annual salary, health benefits, and an annual holiday bonus. (See id.; see also Audio Recording of Hearing Held in Courtroom D, December 6, 2012 (2:37-2:39 PM)). His employment at the firm appears to be stable, and the Debtor's employer considers him an "asset" to the firm. (See id.).
In sum, the Debtor's ability to work as evidenced by his current employment in combination with his successful management of his addiction, convince this Court this Debtor is currently able, and will likely remain able, to make some continuing payments toward his student loan obligations. See Richardson v. N.C. State Educ. Assistance Auth. (In re Richardson), Bankr No. 07-01504-5-ATS, Adv. No. S-07-00096-5-AP, 2008 WL 3911075, at *3 (Bankr.E.D.N.C. Aug. 14, 2008). Therefore, the Debtor has failed to meet his burden of proof as to the second prong of the Brunner test.
Finally, the Debtor must prove that he has "made a good faith effort" to repay his student loan obligations. Faish, 72 F.3d at 305 (citing Brunner, 831 F.2d at 396). This Court has previously found that in analyzing the third prong of the Brunner test, courts must consider "(1) whether the debtor incurred substantial expenses beyond those required to pay for basic necessities and (2) whether the debtor made efforts to restructure his loan before filing his petition in bankruptcy." In re Flickinger-Luther, 462 B.R. at 163 (quoting Pelliccia v. United States Dep't of
With regard to the first inquiry, it appears to the Court that the Debtor lives a modest lifestyle, void of any substantial unnecessary expenses. Unfortunately for the Debtor, he has failed to provide either a complete and accurate account of his bank statements or a full explanation of the expense sharing arrangement with his fiancee, leaving the Court with a murky picture of his household income, expenses and spending habits.
Therefore, the Court's analysis as to whether the Debtor satisfies the third prong of the Brunner test must rest largely on the Debtor's attempts to repay and/or restructure his loan obligations prior to filing for bankruptcy relief. In evaluating the record with regard to this question it is readily apparent to the Court that the Debtor has failed to meet his burden of proof with regard to the "good faith" prong.
This Court has previously found that a debtor's lack of participation in a loan repayment program, such as the William D. Ford Income Contingent Repayment Plan, is not in and of itself dispositive as to the "good faith" prong of the Brunner test. See In re Flickinger-Luther, 462 B.R. at 164 (citations omitted). However, whether a debtor has made any attempt to restructure his student loan obligations remains a persuasive factor. See id. at 163-64. In the instant matter, the Debtor admits that he has never made any formal attempt to seek an adjustment, deferment or forbearance, or to consolidate his student loan obligations. (See Defendant's Trial Exhibit 3, Answer to Interrogatory # 16; see also Audio Recording of Hearing Held in Courtroom D, December 6, 2011, (2:14-2:15 PM)). While the Debtor complains that his loans should never have been put into default status because he was in a rehabilitation program, he never took formal steps either before of after the default to correct his situation aside from seeking to have all of his debts discharged through his bankruptcy case.
Further, the Debtor admits that he has never made a payment on his student loan obligations. (See Defendant's Trial Exhibit 3, Answer to Interrogatory # 16). This admission is supported by records produced by ECMC that show absolutely no payment history for the Debtor. (See Defendant's Trial Exhibit 16). In addition, the Debtor is attempting to discharge student loans very early in his working life, and only four years after acquiring his most recent student loan obligation. (See id.).
From a review of the record, the Debtor has not demonstrated by the preponderance of the evidence a good faith effort to repay his student loan obligations. Therefore, the Debtor has failed to meet his burden with regard to the third prong of the Brunner test.
The Debtor has failed to satisfy his burden of proof with regard to each prong of the Brunner test. Therefore, the Debtor's request for a discharge of his student loan debt based on "undue hardship" must be denied, and judgment will be entered in favor of defendant ECMC and against the Debtor. An order consistent with this Memorandum Opinion shall be issued by the Court.