DECISION RE: DEFENDANT UNITED STATES OF AMERICA'S MOTION FOR SUMMARY JUDGMENT
CHARLES L. NAIL, Jr., Bankruptcy Judge.
The matter before the Court is Defendant United States of America, Department of Education's motion for summary judgment on Debtor-Plaintiff Chad Thomas DuBois's complaint to determine the dischargeability of certain student loans. This is a core proceeding under 28 U.S.C. § 157(b)(2). This decision and the accompanying order and judgment constitute the Court's findings and conclusions under Fed.R.Bankr.P. 7052. As discussed below, the Court will grant the United States' motion.
I.
In its statement of material facts (adv. doc. 68-2), the United States proffers the following as material facts:1
1. On or about [September 4, 1990], the borrower, Chad Thomas DuBois (hereinafter . . . "DuBois" . . . ) executed a promissory note (hereinafter "Loan 1") to secure a loan of $850.00 from Northern State University at 5.00 percent interest per annum.
2. [Northern State University] made Loan 1 under the Federally-funded National Defense/Direct Student Loan, now Perkins Student Loan, programs authorized under Title IV-E of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1087aa et seq. (34 C.F.R[.] Part 674).
3. As to Loan 1, [Northern State University] demanded payment according to the terms of Loan 1, and [DuBois] defaulted on the obligation on [August 1, 1996].
4. Due to this default of Loan 1, [Northern State University] assigned all rights and title to the loan to the [United States] Department of Education (hereinafter "Department"). After [Northern State University] credited all cancellations due and payments received, [DuBois] owed the school $850.00 principal and $200.73 interest. This principal and interest, together with any unpaid charges, totaled $1,501.04.
5. Loan 1 was assigned to the Department on [March 19, 2001]. Since assignment of the loan, the Department has credited a total of $13.77 in payments from all sources, including Treasury Department offsets, if any, to the balance.
6. The Department is discharging Loan 1 so that [DuBois] is eligible for the Income Based Repayment Plan ("IBR plan").
7. On or about [February 7, 1991], [April 4, 1991,] and [May 15, 1991], [DuBois] executed promissory notes (hereinafter "Loan Group 2") to secure loans of $1,313.00, $600.00 and $263.00 from Norwest Bank South Dakota.
8. The loans in Loan Group 2 were disbursed for $1,313.00 on [February 7, 1991] to [March 11, 1991], $600.00 on [May 22, 1991] to [June 14, 1991,] and $263.00 on [May 23, 1991] to [June 14, 1991] at a variable rate of interest to be established annually by the Department. The loan obligations were guaranteed by Pennsylvania Higher Education Assistance Agency, and then reinsured by the Department under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C[. §] 1071 et seq. (34 C.F.R. Part 682).
9. [Norwest Bank South Dakota] demanded payment according to the terms of the notes, and credited $0.00 to the outstanding principal owed on the loans.
10. [DuBois] defaulted on the loans in Loan Group 2 on [June 16, 1997], and [Norwest Bank South Dakota] filed a claim on the loans guarantee.
11. Due to this default as to Loan Group 2, [Pennsylvania Higher Education Assistance Agency] paid a claim in the amount of $2,521.42 to [Norwest Bank South Dakota]. [Pennsylvania Higher Education Assistance Agency] was then reimbursed for that claim payment by the Department under its reinsurance agreement.
12. Pursuant to 34 C.F.R. § 682.410(b)(4), once the guarantor pays on a default claim, the entire amount paid becomes due to the guarantor as principal.
13. [Pennsylvania Higher Education Assistance Agency] attempted to collect the debt as to Loan Group 2 from [DuBois]. [Pennsylvania Higher Education Assistance Agency] was unable to collect the full amount due, and on [June 9, 2005], assigned its right and title to the loans to the Department.
14. Since assignment of the loan[s in] Loan Group 2, the Department has credited a total of $0.00 in payments from all sources, including Treasury Department offsets, if any, to the balance.
15. As of June 11, 2015, [DuBois] owed the United States the following on the loan[s in] Loan Group 2: principal in the amount of $2,521.41, interest in the amount of $2,510.02, and total debt in the amount of $5,031.44.
16. Interest accrues on the loan[s in] Loan Group 2 at the current rate of 3.28 percent and a daily rate of $0.23 through June 30, 2015, and thereafter at such rate as the Department establishes pursuant to section 427A of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1077a.
17. On or about [May 22, 1991], [DuBois] executed a promissory note to secure a loan of $2,625.00 from Norwest Bank South Dakota (hereinafter "Loan 3").
18. Loan 3 was disbursed for $2,625.00 on [August 26, 1991 to December 31, 1991], at a variable rate of interest to be established annually by the Department. The loan obligation was guaranteed by Education Assistance Corporation, and then reinsured by the Department of Education under loan guaranty programs authorized under Title IV[, Part] B of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1071 et seq. (34 C.[F].R. Part 682).
19. [Norwest Bank South Dakota] demanded payment according to the terms of the note, and credited $0.00 to the outstanding principal owed on the loan.
20. [DuBois] defaulted on Loan 3 on [December 18, 1996], and [Norwest Bank South Dakota] filed a claim on the loan guarantee. Due to this default, [Education Assistance Corporation] paid a claim in the amount of $3,058.62 to [Norwest Bank South Dakota].
21. [Education Assistance Corporation] was then reimbursed for that claim payment by the Department under its reinsurance agreement.
22. [Education Assistance Corporation] attempted to collect this debt owing as to Loan 3 from [DuBois]. [Education Assistance Corporation] was unable to collect the full amount due, and on [July 24, 2002], assigned its right and title to the loan to the Department.
23. Since assignment of the Loan 3, the Department has credited a total of $56.68 in payments from all sources, including Treasury Department offsets, if any, to the balance. After application of these payments, [DuBois] owed the United States the following as of June 11, 2015: principal in the amount of $3,058.62, interest in the amount of $5,179.73, and total debt of $8,238.35.
24. Interest on Loan 3 accrues on the principal shown here at the current rate of 3.30 percent and a daily rate of $0.28 through June 30, 2015, and thereafter at such rate as the Department establishes pursuant to section 427A of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1077a.
25. On or about [August 2, 1992], [DuBois] executed a promissory note to secure a loan of $2,000.00 from Maryland National Bank . . . (hereinafter "Loan 4").
26. Loan 4 was disbursed for $2,000.00 on [September 1, 1992], at a variable rate of interest to be established annually by the Department. The loan obligation was guaranteed by USA Funds, and then reinsured by the Department under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1071 et seq. (34 C.[F].R. Part 682).
27. [Maryland National Bank] demanded payment according to the terms of the note, and credited $0.00 to the outstanding principal owed on the loan.
28. [DuBois] defaulted on Loan 4 on [July 23, 1998], and [Maryland National Bank] filed a claim on the loan guarantee. Due to this default, [USA Funds] paid a claim in the amount of $3,209.66 to [Maryland National Bank].
29. [USA Funds] was then reimbursed for its claim payment as to Loan 4 by the Department under its reinsurance agreement.
30. [USA Funds] attempted to collect the debt as to Loan 4 from [DuBois].
31. [USA Funds] was unable to collect the full amount due as to Loan 4, and on [November 29, 2006], assigned its right and title to the loan to the Department.
32. Since assignment of Loan 4, the Department has credited a total of $0.00 in payments from all sources, including Treasury Department offsets, if any, to the balance. After application of these payments, [DuBois] owed the United States the following as of June 11, 2015: principal in the amount of $3,209.66, interest in the amount of $2,894.88, and total debt of $6,104.54.
33. As to Loan 4, interest accrues on the principal at the current rate of 3.35 percent and a daily rate of $0.29 through June 30, 2015, and thereafter at such rate as the Department establishes pursuant to section 427 A of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1077a.
34. On or about [August 31, 1992], [June 16, 1993], [August 20, 1993,] and [June 3, 1994], [DuBois] executed promissory notes to secure loans of $1,313.00, $1,834.00, $3,500.00, and $10,500.00 from Norwest Bank South Dakota, National (hereinafter known as "Loan Group 5"). These loans were disbursed for $1,313.00 on [September 9, 1992], $1,834.00 on [July 13, 1993], $1,666.00 on [August 31, 1993 to January 7, 1994], [and] $5,000.00 and $5,500.00 on [August 3, 1994 to December 22, 1994], at a variable rate of interest to be established annually by the Department. The loan obligations were guaranteed by Education Assistance Corporation, and then reinsured by the Department of Education under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1071 et seq. (34 C.F.R. Part 682).
35. [Norwest Bank South Dakota, National] demanded payment according to the terms of the notes, and credited $0.00 to the outstanding principal owed on the loans.
36. [DuBois] defaulted on the notes [in] Loan Group 5 on [December 18, 1996], and [Norwest Bank South Dakota, National] filed a claim on the loans guarantee.
37. Due to this default of the loans [in] Loan Group 5, [Education Assistance Corporation] paid a claim in the amount of $18,304.21 to [Norwest Bank South Dakota, National]. [Education Assistance Corporation] was then reimbursed for that claim payment by the Department under its reinsurance agreement.
38. [Education Assistance Corporation] attempted to collect this debt owing on the loans [in] Loan Group 5 from [DuBois]. [Education Assistance Corporation] was unable to collect the full amount due, and on [July 24, 2002], assigned its right and title to the loans to the Department.
39. Since assignment of the loan[s in] Loan Group 5, the Department has credited a total of $324.55 in payments from all sources, including Treasury Department offsets, if any, to the balance.
40. After application of the payments received by the Department as to the loan[s in] Loan Group 5, [DuBois] owed the United States the following as of June 11, 2015: principal in the amount of $18,304.21, interest in the amount of $17,354.77, and total debt in the amount of $35,658.98.
41. Interest accrues on the loan which makes up the loans [in] Loan Group 5 on the principal shown here at the current rate of 3.13 percent and a daily rate of $1.57 through June 30, 2015, and thereafter at such rate as the Department establishes pursuant to section 427 A of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1077a.
42. On or about [August 20, 1993], [DuBois] executed a promissory note to secure a loan in the amount of $4,000.00 from Maryland National Bank . . . (hereinafter "Loan 6").
43. Loan 6 was disbursed for $4,000.00 on [September 10, 1993 to January 7, 1994], at a variable rate of interest to be established annually by the Department of Education. The loan obligation was guaranteed by USA Funds, and then reinsured by the Department of Education under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. [§]1071 et seq. (34 C.F.R. Part 682).
44. [Maryland National Bank] demanded payment according to the terms of the note, and credited $0.00 to the outstanding principal owed on the loan.
45. [DuBois] defaulted on Loan 6 on [July 30, 1998], and [Maryland National Bank] filed a claim on the loan guarantee.
46. Due to this default of Loan 6, [USA Funds] paid a claim in the amount of $5,883.37 to [Maryland National Bank]. [USA Funds] was then reimbursed for that claim payment by the Department under its reinsurance agreement.
47. [USA Funds] attempted to collect Loan 6 from [DuBois]. [USA Funds] was unable to collect the full amount due, and on [November 29, 2006], assigned its right and title to the loan to the Department.
48. Since assignment of Loan 6, the Department has credited a total of $0.00 in payments from all sources, including Treasury Department offsets, if any, to the balance.
49. After application of no payments by the Department as to Loan 6, [DuBois] owed the United States the following [on] this note as of June 11, 2015: principal in the amount of $5,870.14, interest in the amount of $5,139.27, and total debt of $11,009.41.
50. As to Loan 6, interest accrues on the principal shown here at the current rate of 3.20 percent and a daily rate of $0.51 through June 30, 2015, and thereafter at such rate as the Department establishes pursuant to section 427A of the Higher Education Act of 1965, as amended, 20 U.S.C. [§] 1077a.
51. Between October 30, 2014, and . . . June 12, 2015, no payments or offsets have been made or received as to the [above-described] promissory notes[.]
52. As of June 11th, 2015, the indebtedness owed to the Department of Education on [the above-described] promissory notes . . . is now $67,694.52, including $33,814.05 in principal and $33,880.47 in interest.
53. DuBois's student loan debt continues to increase and interest continues to accrue pursuant to the terms of the promissory notes.
54. A rehabilitated borrower or a borrower not in default has the option to repay loans under four repayment plans: Standard, Graduated, Income Contingent, and Income Based. 34 C.F.R. [§§] 685.208, 685.209, 685.221 . . . .
55. When [the Department] contacts a delinquent debtor, or a delinquent debtor contacts [the Department] regarding repayment, the standard practice is for the [Department] representative to counsel the debtor on alternate repayment plans and run estimated calculations of monthly repayment amounts under the various plans available.
56. The goal is to advise the debtor of his/her options and allow the debtor to make an informed choice about what repayment plan best fits his/her needs and preferences.
57. Once this counseling process has been completed, the [Department] representative should then direct the debtor to the applicable repayment plan forms that are to be completed by the debtor and returned to [the Department].
58. Under a Standard Repayment Plan, a borrower will pay a fixed amount each month until the borrower's loans are paid in full. The borrower's monthly payment must be at least $50.00 per month[,] and the borrower will have up to ten (10) years to repay the loan. In general, the short repayment period under the Standard Repayment Plan will result in the lowest amount of interest repaid on the loan.
59. Under a Graduated Repayment Plan, a borrower's payment will start out low and then will generally increase every two years. The repayment period generally varies from 12 to 30 years depending upon the total amount borrowed. See 34 C.F.R. § 685.208. The Graduated Repayment Plan is good for borrowers who expect their income to increase steadily over time.
60. Under the Income Contingent Repayment (ICR) Plan, a borrower's monthly payments will be calculated on the basis of the borrower's annual adjusted gross income (AGI). . ., total Direct Loan obligation, and family size.
61. [DuBois] does not meet all the requirements to qualify for the ICR Plan because the plan is specifically for Direct loans only.
62. [Because DuBois] has only Federal Family Education Loans (FFEL loans) and one Perkins loan, he does not qualify for the ICR Plan.
63. The Income-Based Repayment (IBR) Plan bases the borrower's monthly payment on annual income and family size.
64. A borrower must be experiencing a Partial Financial Hardship to enroll in the IBR plan.
65. Being unemployed and/or in jail qualifies as a partial financial hardship.
66. Partial Financial Hardship is a circumstance in which the annual amount due on all eligible loans, as calculated under a 10-year Standard Repayment Plan, exceeds 15 percent of the difference between Adjusted Gross Income (AGI) and 150 percent of the poverty line income for the borrower's family size.
67. Under the IBR plan, the required monthly payment will be no more than 15 percent of the amount by which the borrower's AGI exceeds 150 percent of the poverty line income for his/her family size and state, divided by 12.
68. If the calculated payment under the IBR Plan is less than $5.00, the monthly payment will be adjusted to $0.00.
69. If all of the borrower's loans are not Direct Loans, the monthly payment amount will be determined by multiplying the calculated monthly payment by the percentage of the total amount of eligible loans that are Direct Loans. This calculation becomes applicable only if borrower has some Direct Loans.
70. Under the IBR plan, if a borrower is married and files [his or her] federal income taxes jointly with [his or her] spouse, both the borrower's AGI and the borrower's spouse's AGI will be used to calculate the monthly payment. If the borrower and [his or her] spouse file taxes separately, only the borrower's AGI will be used to calculate the monthly payment.
71. Under the IBR plan, it is possible the borrower will not make payments large enough to pay off [his or] her loans in 25 years. If loans are not fully repaid after 25 years of repayment, any unpaid amount will be forgiven.
72. Under the IBR plan, the borrower's repayment amount is adjusted annually. Payments may be higher or lower depending on changes in income.
73. If the . . . IBR . . . Plan is selected, the Title IV servicer will require the borrower to submit documentation of current income (the borrower's and [his or her] spouse's if married and taxes are filed jointly) in order to apply for the IBR plan.
74. Under the IBR plan, if the borrower's federal tax return does not reflect present income (for example, due to loss of employment), [the] borrower may submit documentation of current income[,] and the borrower's monthly payment will be based on this documented income information.
75. [DuBois] meets all the requirements to qualify for the IBR plan since the Department has agreed to discharge the Perkins loan.
76. Under the IBR plan, based upon [DuBois]'s assumed AGI of $0.00 and family size of 1, [DuBois]'s monthly payment under the IBR Plan is $0.00.
77. Under the IBR plan, if a borrower makes under the poverty line (currently $15,930 for 2015 as determined by Health and Human Services)[,] then a borrower will pay $0[.00].
78. Under the IBR plan, if a borrower makes over the poverty line, then [the] borrower will start to have a payment under the IBR plan.
79. DuBois is not eligible for deferment or forbearance.
80. DuBois is presently in default as to his student loans.
81. Normally, a borrower in default is required to rehabilitate the student loans and make nine timely monthly payments, 20 U.S.C. § 1078-6(a); 34 C.F.R. § 685.211(f); however, given the interrogatory responses provided by DuBois, the Department . . . has determined DuBois is eligible for forced rehabilitation.
82. Under forced rehabilitation, the Department will expedite the transfer of his loans to a Title IV servicer and waive the required nine timely monthly payments.
83. Under forced rehabilitation, once his loans are assigned to one or more servicers and he receives correspondence from them, then he is immediately eligible to apply for the IBR plan.
84. DuBois makes claims he is disabled, but DuBois has not applied for total and permanent disability with the Department. . . . He can still do so if he chooses. Should DuBois apply for and be approved for permanent disability with the Department . . ., collection of DuBois'[s] loans would be subject to the applicable statutes and regulations relating to permanent disability.
85. DuBois estimates his potential release date from prison as October of 2015, but he indicates prior to release he has to see the parole board. In his bankruptcy schedules, DuBois sets forth he is in prison until 2035.
86. DuBois has never received disability payments from the Social Security Administration.
87. DuBois does not have any monthly living expenses.
88. DuBois does not have . . . any monthly bills he is obligated to pay while incarcerated.
89. DuBois graduated from high school in 1990.
90. DuBois was born in July of 1972.
91. In May of 1990, [DuBois] would have been 17.
92. DuBois . . . was in college from August of 1990 to December 1990.
93. DuBois . . . was in college from January 1991 to May of 1992.
94. DuBois . . . was in college from August 1992 to December 1992.
95. DuBois . . . was in college from August 1993 through 1995.
96. DuBois was incarcerated in 2005.
97. When DuBois moved to West Virginia, he did not have proof that he had a learning disability.
The United States' statement of material facts is supported by specific citations to the record, including the declaration of Philippe Guillon (adv. doc. 68-3), DuBois's bankruptcy schedules (bankr. doc. 1), and DuBois's response to the United States' interrogatories (adv. doc. 56). Its statement complies with Bankr. D.S.D. R. 7056-1(a)(1).
In his statement of disputed facts (adv. doc. 77), DuBois proffers the following disputed facts:2
1. [DuBois] disputes paragraph six (6) of the United States Statement of Material Facts.
2. [DuBois] disputes that the United States should be able to voluntarily pick and choose which debts it wants to discharge without discharging them all, to the detriment of [DuBois].
3. By the United States' own admission [DuBois] is not eligible for the Income Based Repayment Plan ("IBR plan") as they state in paragraph six (6) that they are choosing to discharge Loan 1 "so that [DuBois] is eligible" thereby implying that he is not eligible as he stands before the Court when he filed his Adversary Proceeding or as of this writing.
4. [DuBois] agrees that the amount owed is $67,694.52; including more interest, $33,880.47, than principal, $33,814.05 as of June 11, 2015.
5. [DuBois] dispute[s] that [he] is eligible for any of the four (4) repayment plans the United States mentions in its Statement of [Material] Facts.
6. The United States admits that a "rehabilitated borrower or a borrower not in default has the option to repay loans under four repayment plans...."
7. [DuBois] dispute[s] that [he] is a rehabilitated borrower.
8. [DuBois] further dispute[s] that [he] is not in default, as he is in default.
9. The United States admits that [DuBois] is in default.
10. [DuBois] also disputes that he has been contacted about any of the four (4) repayment plans as contemplated by the United States in paragraph 55.
11. [DuBois] disputes that the counseling process has been started and thus it has not been completed as contemplated in paragraph 57.
12. [DuBois] does agree with the United States that [he] is not eligible and/or does not qualify for the first three (3) repayment plans[-]Standard[,] Graduated[,] or Income Contingent[-]as discussed by the United States in paragraph[s] 58-62.
13. [DuBois] disputes that he is experiencing only a "partial" financial hardship.
14. [DuBois] is experiencing a full hardship, not a partial financial hardship.
15. [DuBois] does not have a spouse, therefore no other person will be filing taxes.
16. [DuBois] is not eligible for the IBR plan.
17. The United States admits and believes that [DuBois] is only eligible "since the Department has agreed to discharge the Perkins loan[.]"
18. [DuBois] has not agreed to the discharge of just one loan, but seeks the discharge of all six loans.
19. The United States admits that it normally requires a debtor in default to rehabilitate the student loans and make nine timely monthly payments.
20. The United States has not asked [DuBois] to rehabilitate the student loans.
21. The United States has not asked [DuBois] to make nine monthly payments.
22. The United States has unilaterally decided that Du[B]ois is eligible for forced rehabilitation.
23. The United States again must change the rules in order to seek a way to avoid the discharge of the student loans.
24. The United States not only seeks to arbitrarily pick the Perkins Loan to be discharged . . ., it now decides to expedite the transfer of his loans to a Title IV servicer and it also is unilaterally choosing to waive the nine timely monthly payments.
25. [DuBois] dispute[s] that the loans have been transferred to a Title IV servicer at the time of the filing of the adversary proceeding or at the time of this filing.
26. [DuBois] dispute[s] that the United States should be able to further waive the nine (9) monthly payments when they have not requested that they be made and to waive another requirement to avoid a discharge of the student loans.
27. [DuBois] dispute[s] that [he] is eligible for IBR as he has not completed forced rehabilitation.
28. The United States admits that [DuBois] is eligible to apply for the IBR plan ". . . once his loans are assigned to one or more servicers and he receives correspondence from them . . . [.]"
29. [DuBois] states these are clearly requirements tha[t] have not happened yet and thus [he] was not eligible at the time of the filing of the adversary or as of the time of this filing.
30. [DuBois] disputes that he has applied for disability.
31. [DuBois] agrees that he is eligible for parole in October 2015, with a sentence until 2035.
32. [DuBois] admits that he does not have any monthly living expenses while incarcerated, but if released on parole his monthly living expenses[,] student loans if not discharged, monthly parole fees and potential court appointed attorney fees would be unduly burdensome.
DuBois's statement contains only limited citations to the United States' statement of material facts3 and is not supported by specific citations to the record. His statement does not comply with Bankr. D.S.D. R. 7056-1(a)(2).
II.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Bankr.P. 7056 and Fed.R.Civ.P. 56(a). An issue of material fact is genuine if the evidence is such that a trier of fact could find for either party. Rademacher v. HBE Corp., 645 F.3d 1005, 1010 (8th Cir. 2011). A genuine issue of fact is material if its resolution affects the outcome of the case. Gazal v. Boehringer Ingelheim Pharmaceuticals, Inc., 647 F.3d 833, 838 (8th Cir. 2011) (cite therein). In reviewing a motion for summary judgment, the Court considers the pleadings, the discovery and disclosure materials in the record, and any affidavits. Wood v. SatCom Marketing, LLC, 705 F.3d 823, 828 (8th Cir. 2013). The Court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866 (2014). The nonmovant receives the benefit of all reasonable inferences supported by the evidence. B.M. ex rel. Miller v. South Callaway R-II School Dist., 732 F.3d 882, 886 (8th Cir. 2013).
The movant bears the burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Gibson v. American Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012). If the movant meets its burden, the nonmovant, to defeat the motion, must establish a genuine factual issue. Residential Funding Co. v. Terrace Mortg. Co., 725 F.3d 910, 915 (8th Cir. 2013). The nonmovant may not rest on mere allegations or pleading denials, Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 910 (8th Cir. 2010), or "merely point to unsupported self-serving allegations." Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008) (quoted in Residential Funding, 725 F.3d at 915). Instead, the nonmovant, as to those elements of a claim on which it bears the burden of proof, must substantiate its allegations with admissible, probative evidence that would permit a finding in its favor on more than speculation or conjecture. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quoted in Spaulding v. Conopco, Inc., 740 F.3d 1187, 1190-91 (8th Cir. 2014)); F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997) (citing Kiemele v. Soo Line R.R. Co., 93 F.3d 472, 474 (8th Cir. 1996), and JRT, Inc. v. TCBY Systems, Inc., 52 F.3d 734, 737 (8th Cir. 1995)).
III.
By his complaint (adv. doc. 1), DuBois seeks a determination that certain student loans, including those described above, are dischargeable. The general rule is student loans are not dischargeable. 11 U.S.C. § 523(a)(8). However, an exception is made if "excepting such debt from discharge . . . would impose an undue hardship on the debtor and the debtor's dependents[.]" Id.
The debtor must establish undue hardship by a preponderance of the evidence. Walker v. Sallie Mae Servicing Corp. (In re Walker), 650 F.3d 1227, 1230 (8th Cir. 2011). In determining whether the debtor has met this burden, the bankruptcy court must consider the totality of the debtor's circumstances, taking into account:
(1) the debtor's past, present, and reasonably reliable future financial resources; (2) a calculation of the reasonable living expenses of the debtor and [the debtor's] dependents; and (3) any other relevant facts and circumstances surrounding the particular bankruptcy case.
Id.
In this case, DuBois has not pointed the Court to anything in the record that would enable the Court to determine his past, present, and reasonably reliable future financial resources. From a review of the file, more specifically DuBois's chapter 7 petition and supporting schedules and statements (bankr. doc. 1), it appears DuBois had no income in 2012 and 2013 and was not employed when he filed his chapter 7 petition in October 2014. This is, of course, explained by the fact DuBois was in prison at the time. From a review of the file, more specifically DuBois's first supplemental response to the United States' interrogatories (adv. doc. 94), which was not signed by DuBois, it also appears DuBois, who was released from prison in October 2015 according to the parties' joint report (adv. doc. 90), is presently unemployed following back surgery in October 2015 and may be receiving income assistance totaling $1,544.00 per month from Minnehaha County. However, this is far from certain, given the unknown provenance of the unsigned document (adv. doc. 94-1, p. 12) from which this figure is derived. As for DuBois's future prospects, from a review of the file, more specifically the same supplemental response to the United States' interrogatories, it appears DuBois may be able to return to work in January 2016. More than that the Court cannot say. In his response to the United States' motion for summary judgment (adv. doc. 76), DuBois claims he "will leave prison as a felon with few marketable skills." He does not, however, support this claim by affidavit or otherwise.
DuBois has likewise not pointed the Court to anything in the record that would enable the Court to determine his reasonable living expenses. In his response to the United States' motion for summary judgment, DuBois claims he will have "a number of obligations resulting from his sentence," "numerous monthly costs associated with his parole," and "approximately $50,000.00 in court[-]appointed attorney fees to repay Beadle County[,] which will likely be part of his conditions of parole." He does not, however, support this claim by affidavit or otherwise. From a review of the file, more specifically DuBois's first supplemental response to the United States' interrogatories, it appears DuBois may have monthly expenses totaling between $1,841.00 (adv. doc. 94-1, pp. 6 and 7) and $2,145.00 (adv. doc. 94-1, p. 12). Again, however, this is far from certain, given the unknown provenance of the unsigned documents from which these figures are derived. And the Court cannot say whether these expenses are reasonable: Because DuBois did not advance the issue, the United States did not have an opportunity to question their reasonableness.
Further militating against a finding of undue hardship is DuBois's eligibility for the income based repayment plan described above, under which DuBois's monthly payment on the student loans identified as Loan Group 2, Loan 3, Loan 4, Loan Group 5, and Loan 6 would be $0.00. Educ. Credit Mgmt. Corp. v. Jesperson, 571 F.3d 775, 781 (8th Cir. 2009) ("[A] student loan should not be discharged when the debtor has the ability to earn sufficient income to make student loan payments under the various special opportunities made available through the Student Loan Program.") (internal quotation marks omitted).
DuBois challenges the United States' ability to consent to the discharge of the student loan identified as Loan 1, which, if not discharged, would render him ineligible for this plan. DuBois does not, however, point the Court to any authority that would prohibit the United States from doing so. The United States, on the other hand, cites 20 U.S.C. § 1082, which provides in pertinent part:
In the performance of, and with respect to, the functions, powers, and duties, vested in him by [the Federal Family Education Loan Program, 20 U.S.C. §§ 1071-1087-4], the Secretary [of Education] may—
. . .
(4) subject to the specific limitations in [the Federal Family Education Loan Program], consent to modification, with respect to rate of interest, time of payment of any installment of principal and interest or any portion thereof, or any other provision of any note or other instrument evidencing a loan which has been insured by the Secretary under [the Federal Family Education Loan Program];
. . . and
(6) enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption.
20 U.S.C. § 1082(a). The Secretary of Education is similarly empowered to deal specifically with Perkins loans, such as Loan 1:
In carrying out the provisions of [the Federal Perkins Loan program, 20 U.S.C. §§ 1087aa-1087ii], the Secretary [of Education] is authorized—
(1) to consent to modification, with respect to rate of interest, time of payment of any installment of principal and interest or any portion thereof, or any other provision of any note evidencing a loan which has been made under [the Federal Perkins Loan program]; [and]
(2) to enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption[.]
20 U.S.C. § 1087hh. In the absence of any authority suggesting otherwise, the Court is satisfied the United States may consent to the discharge of Loan 1.
DuBois also challenges the United States' ability to waive the requirement under 20 U.S.C. § 1078-6(a) that a borrower "rehabilitate" his student loans by making nine timely monthly payments, which DuBois has not done. Again, however, DuBois does not point the Court to any authority that would prohibit the United States from doing so. In light of the broad powers given the Secretary of Education under 20 U.S.C. § 1082(a), and in the absence of any authority suggesting otherwise, the Court is satisfied the United States may waive these monthly payments. Indeed, given DuBois's answers to the United States' interrogatories (adv. doc. 56), which were prepared when DuBois was still incarcerated, the United States may well have been required to waive them:
Neither the guaranty agency nor the Secretary [of Education] shall demand from a borrower as monthly payment amounts . . . more than is reasonable and affordable based on the borrower's total financial circumstances.
20 U.S.C. § 1078-6(a)(1)(B).
Finally, DuBois argues because the Department of Education has not yet transferred his loans to a Title IV servicer and because he has not yet received correspondence from such a servicer, he is not currently eligible for the income based repayment plan. The Court, however, is obliged to consider, not just DuBois's present situation, but also his future prospects. And DuBois does not suggest once the appropriate steps are taken, he will not then be eligible.
IV.
DuBois has not substantiated his allegation of undue hardship with admissible, probative evidence that would permit a finding in his favor without speculation or conjecture. The Court will therefore enter an order granting the United States' motion for summary judgment and directing the entry of a judgment declaring the student loan identified as Loan 1 is discharged and further declaring the student loans identified as Loan Group 2, Loan 3, Loan 4, Loan Group 5, and Loan 6 are not discharged.
