Opinion
NOT FOR PUBLICATION
Argued and Submitted at Seattle, Washington: June 18, 2008
Appeal from the United States Bankruptcy Court for the Western District of Washington. Bk. No. 06-43180, Adv. No. 07-04039. Honorable Paul B. Snyder, Bankruptcy Judge, Presiding.
Before: KLEIN, JURY, and KURTZ, [ Bankruptcy Judges.
Hon. Frank Kurtz, Chief Judge for the U.S. Bankruptcy Court for the Eastern District of Washington, sitting by designation.
MEMORANDUM
This case involves the " undue hardship" provision of 11 U.S.C. § 523(a)(8). The creditor-appellant appeals a bankruptcy court order granting discharge to the debtor of a $217,920 student loan debt as an undue hardship. The debtor, 53 years old at the time of trial, spent about 18 years attending various post secondary schools specializing in chiropractic and general medicine and ultimately became employed as a customer service representative unrelated to his education. The bankruptcy court concluded that the debtor met the three-part undue hardship test under Brunner v. New York State Higher Educ. Svcs. (In re Brunner), 831 F.2d 395 (2nd Cir. 1987), which has been adopted by the Ninth Circuit in United Student Aid Funds v. Pena (In re Pena), 155 F.3d 1108 (9th Cir. 1998).
We agree with the bankruptcy court's holding on the first and second prongs of the Brunner test that the debtor proved he could not maintain a minimal standard of living if forced to repay the loans and that additional circumstances existed indicating his state of affairs would likely persist for a significant portion of the repayment period.
However, we REVERSE on account of the third prong of the Brunner test that requires the debtor affirmatively to prove good faith efforts to repay the loan. The bankruptcy court applied an incorrect legal standard in its reasoning that the debtor's demonstration that he did " not lack good faith" was sufficient to establish affirmative good faith. Hence, the $217,920 student loan debt to Educational Credit Management Corporation (" ECMC") is not discharged as an undue hardship.
FACTS
At the time of trial, the debtor Callen James Blackbird was a 53-year-old single person with no dependents. After graduating from college in 1976 with a degree in communications, the debtor attended various post secondary schools specializing in chiropractic and general medicine from 1988 through 2006.
The colleges and universities attended by the debtor and the degrees earned are as follows:
College
Degree
Date Earned
Attended
University of
BS Communications
May 1976
Wisconsin - Green Bay
Breneau University
Pre-Med
May 1988 - August
1989
Life College, School
Doctor of
May 1993
of Chiropractic
Chiropractic
Medical University of
Medicine
January 2001
the Americas (West
December 2002
Indies and Belize)
St. Christopher's
Medicine
June 2003 - June 2005
College of Medicine
(Luton, England)
University of
Part I of board
January 2006 - May
Missouri (Kansas
preparation
2006
City, Missouri)
The debtor's Social Security Statement setting forth his earnings for the last twenty years indicated that he earned the most in 1988 and 1994 at a little over $24,000, that he averaged about $7,950 for the remaining years from 1987 to 1995, and that he did not earn any income for the years 1996 to 2004. For the years 2001 through 2004, the debtor did not file federal income tax returns.
Specifically, the debtor's last twenty years of earnings as set forth in his Social Security Statement are:
Although the debtor did not file federal tax returns for the years 2001 through 2004, earnings from the debtor's last few years reported on his federal tax returns are summarized as follows:
Year
Social Security Income
Year
Social Security Income
2006
Not yet recorded
1996
0.00
2005
638.00
1995
10, 966.00
2004
0.00
1994
24, 300.00
2003
0.00
1993
10, 983.00
2002
0.00
1992
7, 990.00
2001
0.00
1991
7, 549.00
2000
0.00
1990
7, 333.00
1999
0.00
1989
8, 742.00
1998
0.00
1988
24, 478.00
1997
0.00
1987
2, 085.00
Year
Wages, Salaries,
Net Business
AGI
Federal Tax
etc.
Income
Refund/Due
2006
0.00
0.00
0.00
0.00
2005
0.00
690.00
641.00
(49.00)
2000
0.00
2, 817.00
2, 655.00
(197.00)
After receiving his chiropractic degree in May 1993 at age 38, the debtor worked as a chiropractor for two years before being laid off due to lack of patients in May 1995. From 1995 to 2000, the debtor became self-employed using his recreational vehicle as a mobile office, filling in for vacationing chiropractors. The debtor did not have reported income from his chiropractic practice from 1996 to 2000 because his earnings were minimal during this time, both due to intermittent shoulder pain he suffered from a previous skydiving injury that interfered with his chiropractic work and due to expenses of his mobile office operations often exceeding his income.
The Memorandum Decision issued on November 3, 2007 states that the debtor injured his shoulder while skydiving in June 1994 which interfered with his chiropractic work and eventually led him to decide to seek alternative employment. See Memorandum Decision at 4:11.5-18.5. The appellant's brief, however, states that the debtor testified that he injured his shoulder in a skydiving accident around May 2000, which led him to decide he could no longer work as a chiropractor. See Appellant's Br. at 3. It is unclear whether these are the same shoulder injuries or different.
As noted, the debtor injured his shoulder in a skydiving accident. Although the debtor never consulted a medical doctor to determine whether his injury would limit him in working, the debtor decided that he would have to seek work other than as a chiropractor. The debtor admitted that he does not suffer from any medical condition which has been deemed by any physician to affect his ability to work and earn money.
In January 2001, the debtor decided to attend medical school and was accepted into a foreign international program at the Medical University of the Americas (West Indies and Belize). The debtor subsequently spent an additional two years in a clinical program at St. Christopher's College of Medicine in England from June 2003 to June 2005.
The debtor attempted and twice failed (once in May 2003 and again in December 2006) to pass the first of two parts to his medical board examinations. He was 51 years old at this point.
Several days before he failed his medical exam the second time, on December 20, 2006, the debtor filed for chapter 7 bankruptcy relief with the primary intention of discharging his student loans.
One month later, the debtor began a job for the first time in twelve years, working full-time as a customer service representative for Lowe's Home Furnishing Center, earning approximately $26,210 per year or $2,016 monthly gross. The debtor's net monthly income is $1,661.
According to the debtor, his monthly expenses total $2,177. However, a significant amount of his income is spent eating at restaurants and on satellite TV, radio, and EarthLink. The debtor has not taken a vacation in recent memory and owns approximately $25,000 in assets. He regularly skydives, which he testified costs him $165 per year on average, and he recently spent several thousand dollars on photography equipment to use while skydiving.
On March 15, 2007, he filed an adversary proceeding against the appellant ECMC and others seeking that his student loans be discharged based upon undue hardship under 11 U.S.C. § 523(a)(8). Since only ECMC has appealed, only ECMC's consolidation loan of approximately $217,920 attributable to his education as a chiropractor is at issue in this appeal.
In addition to ECMC, the other co-defendants were Key Bank, NA; Sallie Mae, Inc.; American Educational Services; and The Education Resources Institute.
The loans that were consolidated into the ECMC loan (approximately eleven) were incurred during the debtor's attendance at Life College, School of Chiropractic to earn a degree and become a Doctor of Chiropractic Medicine.
ECMC is a private, non-profit guaranty agency in the Federal Family Education Loan Program, which makes loans available to student borrowers to attend eligible institutions of higher education without regard to a student's age or creditworthiness. Guaranty agencies, such as ECMC, guarantee such loans against default or bankruptcy and are, in turn, reinsured by the United States Department of Education. 20 U.S.C. § § 1085(j), 1078(c).
The debtor did not make any payments on the ECMC loan from the first payment date of April 21, 1994 through the date the bankruptcy was filed, December 20, 2006. He suspended all payments by numerous applications for unemployment deferment and hardship forbearance.
Although the ECMC loan qualifies for the William D. Ford Federal Direct Loan Program (" Ford Program"), the debtor did not apply for acceptance into this program. If the ECMC loan were reconsolidated into the Ford Program, the debtor's estimated monthly payment for ECMC's loan would be $266.67 over a 25-year term under the Income Sensitive Repayment Plan.
The Ford Program is a federal financial aid program almost identical to the Federal Family Education Loan Program, except that the federal government is the lender and the funds are delivered directly to the school. National Association for College Admission Counseling, Focus on Financial Aid: Terminology and Words to Know, http://www.nacacnet.org/MemberPortal/News/StepsNewsletter/Terminology+and+Words+to+Know.htm (last visited June 10, 2008).
The Income Sensitive Repayment Program is an alternative to income contingent repayment for loans serviced by lenders in the Federal Family Education Loan Program. It is designed to make it easier for borrowers with lower paying jobs to make their monthly loan payments. The monthly loan payment is pegged to a fixed percentage of gross monthly income, between 4 percent and 25 percent. The percentage is determined by the borrower and the resulting monthly payment must be greater than or equal to the interest that accrues. The SmartStudent Guide to Financial Aid, http://www.finaid.org/loans/isr.phtml (last visited June 10, 2008).
Having considered the record following a one-day trial, the bankruptcy court held that the debtor met all three prongs of the Brunner undue hardship test by a preponderance of the evidence as to the ECMC loan and concluded that the loan to ECMC was discharged. See Brunner, 831 F.2d at 395.
The total student loan debt was about $690,000. The bankruptcy court also ruled that the student loans of The Education Resources Institute #001 through #004 and KeyBank were discharged pursuant to 11 U.S.C. § 523(a)(8). However, as to the student loans of Sallie Mae and The Education Resources Institute #006 that the debtor obtained to finance a review course for his medical board examination, the bankruptcy court concluded that the debt was not discharged because the debtor did not establish by a preponderance of the evidence that he acted in good faith. The bankruptcy court denied discharge of these loans because (1) the debtor received these loan proceeds within one year of filing bankruptcy, (2) he used the majority of the money for non-educational purposes, and (3) he left the review course without completing it and did not contact the lenders nor return the unused funds. The debtor did not appeal the bankruptcy court's order. While the appellee and KeyBank separately appealed the bankruptcy court's order, KeyBank voluntarily dismissed its appeal on February 7, 2008.
The court reasoned that, although the debtor may have qualified for the Ford Program, it is not a lack of good faith to have not applied for it due to his nonexistent income during the aforementioned period and the fact that he was approved for ECMC deferments. The court also considered the debtor's lack or small amount of available net income and the substantial amount of debt on the other loans that would need to be paid, in addition to possible adverse tax consequences, in concluding that the debtor did not lack good faith.
The order granting discharge of the ECMC loan and its written memorandum decision was entered November 30, 2007.
ECMC timely appealed.
JURISDICTION
The bankruptcy court had jurisdiction via 28 U.S.C. § 1334(b) over this core proceeding under 28 U.S.C. § 157(b)(2). We have jurisdiction under 28 U.S.C. § 158(a)(1).
ISSUE
Whether the requirement to establish affirmative good faith was satisfied by the conclusion that the debtor " did not lack" good faith in connection with student loan debt alleged to be discharged as an undue hardship per 11 U.S.C. § 523(a)(8).
STANDARDS OF REVIEW
The bankruptcy court's findings of fact are reviewed for clear error. Pena, 155 F.3d at 1110. Issues of law are reviewed de novo. Hoopai v. Countrywide Home Loans, Inc. (In re Hoopai), 369 B.R. 506, 509 (9th Cir. BAP 2007).
We review mixed questions of law and fact de novo. Murray v. Bammer (In re Bammer), 131 F.3d 788, 792 (9th Cir. 1997). A mixed question exists when the facts are established, the rule of law is undisputed, and the issue is whether the facts satisfy the legal rule. Id . Mixed questions require consideration of legal concepts and the exercise of judgment about the values that animate legal principles. Id.
Whether repayment of student loan debt imposes an undue hardship on a debtor in bankruptcy is such a question reviewed de novo. Rifino v. United States (In re Rifino), 245 F.3d 1083, 1086-87 (9th Cir. 2001); Pa. Higher Educ. Assistance Agency v. Birrane (In re Birrane), 287 B.R. 490, 493 (9th Cir. BAP 2002); see also Educ. Credit Mgmt. Corp. v. Frushour (In re Frushour), 433 F.3d 393, 398 (4th Cir. 2005).
DISCUSSION
ECMC contends that the court erred in concluding that the debtor's student loan debt to ECMC was discharged under 11 U.S.C. § 523(a)(8) as an undue hardship upon the debtor.
Before reaching the merits of this case, we first clarify the appropriate standard of review.
I
The debtor appears to argue that the bankruptcy court's conclusion, that repayment of the student loan would impose an undue hardship, was not clearly erroneous. This is the incorrect standard of review. Whether repayment of student loan debt imposes an undue hardship on a debtor in bankruptcy is a mixed question of law and fact that is reviewed de novo. See Rifino, 245 F.3d at 1086-87; Birrane, 287 B.R. at 493. It is a legal conclusion that is based on the debtor's individual factual circumstances, which qualifies as a mixed question of law and fact. See Frushour, 433 F.2d at 398. The analysis of the application of the good faith standard is not reviewed on the deferential standard of clearly erroneous.
ECMC does not quarrel with the factual findings, but rather asserts that the legal conclusions based on those facts do not to satisfy the debtor's burden of proof to show undue hardship on each of the three Brunner prongs.
Thus, while we are obliged to accept a trial court's findings of fact unless clearly erroneous, we review de novo the legal conclusions as to the legal effect of those findings in determining whether the debtor has met the undue hardship standard. See Rifino, 245 F.3d at 1087 n.2.
II
Generally, student loan obligations are presumed to be nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(8). A discharge, however, under 11 U.S.C. § 727 does not discharge an individual debtor from any debt for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, " unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor." 11 U.S.C. § 523(a)(8).
Although " undue hardship" is not defined in the Bankruptcy Code, the Ninth Circuit has recognized that the existence of the adjective " undue" indicates that Congress viewed " garden-variety hardship as insufficient excuse for a discharge of student loans." Pena, 155 F.3d at 1111.
To determine if excepting student obligations from discharge will impose an undue hardship on a debtor, the Ninth Circuit has adopted the three-prong test established by the Second Circuit in Brunner. See Pena, 155 F.3d at 1112. To obtain a discharge of a student loan debt, the debtor must prove all of the following by a preponderance of the evidence:
(1) that the debtor cannot maintain, based on current income and expenses, a " minimal" standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.
Brunner, 831 F.2d at 396; Pena, 155 F.3d at 1111; Birrane, 287 B.R. at 494.
Under this test, the burden of proving undue hardship is on the debtor, and the debtor must prove all three elements before discharge can be granted. Rifino, 245 F.3d at 1088. If the debtor does not satisfy any one of these requirements, the bankruptcy court's inquiry must end there, with a finding of no dischargeability. Rifino, 245 F.3d at 1088.
A
The first prong of the Brunner test requires that the debtor prove that he cannot maintain a minimal standard of living if he were required to repay the loans. Rifino, 245 F.3d at 1088.
The bankruptcy court found that, even assuming some of his expenses were not reasonably necessary (restaurant meals, skydiving expenses, internet/cable services) and reduced by several hundred dollars a month, there still would be little remaining every month after deducting the debtor's current expenses from current income. The court concluded that the evidence did not establish that such a modest decrease in the debtor's expenses would be adequate to fully amortize or even pay interest on the entire amount of his student loan debt.
At trial, the debtor testified about his difficulty in finding a job in the medical field because he was either overqualified, underqualified, or too old to pursue any alternative position within the field. ECMC argues that the debtor has not maximized his efforts to search for a job that pays more than $26,000 a year, especially given that he holds two doctorate degrees and is in relatively good health. ECMC further argues that this was the first job the debtor secured after he could no longer live on his student loans and that the debtor admitted he has not looked for a better-paying job since beginning work at Lowe's. ECMC contends that the debtor's " pat testimony" is insufficient to satisfy his burden to prove the first prong.
ECMC notes that, although the duty to maximize income is relevant to the third " good faith" prong of the Brunner test, it also seems appropriate to analyze whether the debtor is maximizing income when analyzing the first prong of whether the debtor's income is sufficient to maintain a minimal lifestyle. See Appt's Reply Br. at 9 n.7.
While a close question is presented here, we cannot say the bankruptcy court's finding, that the debtor's reductions would be minimal and inconsequential even assuming that some of his expenses were unnecessary, was clearly erroneous.
In Rifino, the debtor's budget contained unnecessary items such as tanning, cable television, and a new car. Rifino, 245 F.3d at 1088. While the Ninth Circuit in Rifino recognized that some courts have declined to discharge student loan debt where the debtor's budget included items such as cable television, a new car, and private schooling for a child, and though a close question was presented, the Ninth Circuit refused to disturb the bankruptcy court's conclusion that the debtor met her burden of proof in showing that her standard of living would fall below a minimal level if she were required to repay her student loans. Rifino, 245 F.3d at 1088.
In the same manner, we decline to disturb the ruling on the first prong. Accordingly, we hold that the court did not err in concluding that the debtor proved the first prong of the Brunner test by a preponderance of evidence that he could not maintain a " minimal" standard of living if forced to repay the loan.
B
The second Brunner prong requires a debtor to prove that " additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans." Brunner 831 F.2d at 396.
The Ninth Circuit recently clarified that a debtor does not have a separate burden to prove " additional circumstances, " beyond the inability to pay in the present or in the future. Educ. Credit Mgmt. Corp. v. Nys (In re Nys), 446 F.3d 938, 945 (9th Cir. 2006) (trial court erred in requiring debtor to show exceptional circumstances beyond the inability to pay in the present and likely inability to pay in the future).
The circumstances need be " exceptional" only in the sense that they demonstrate insurmountable barriers to the debtor's financial recovery and ability to pay. Nys, 446 F.3d at 946.
The Ninth Circuit in Nys reasoned that the debtor cannot purposely choose to live a lifestyle inimical to repaying student loans. Nys, 446 F.3d at 946. In other words, a debtor cannot expect to discharge student debt following rejection of a reasonable opportunity to improve a financial situation. Nys, 446 F.3d at 946.
However, the Ninth Circuit also reasoned that, at the same time, it could not fault the debtor for having made reasonable choices that now inhibited the ability substantially to increase income in the future. Nys, 446 F.3d at 946.
Here, recognizing that the debtor is relatively healthy at 53 years old and well-educated, the court found additional circumstances existed in that his shoulder injury precluded him from becoming a chiropractor again, that there was no evidence he would be any more successful monetarily than he was while working as a chiropractor from 1995 to 2000, and that there was no evidence that he would be more successful twelve years later at age 53. The court further found that it was doubtful he could obtain the financing necessary to give him the opportunity to become financially successful as a chiropractor, not to mention the start-up costs, re-education, and insurance of being self-employed.
In addition, the court found that, even though the debtor is well-educated, his education is of little value if he cannot be a chiropractor and his basic job skills otherwise appear to be minimal. It reasoned that there was no evidence that the debtor is qualified now, or that retraining or relocation would qualify the debtor in the future, for any employment that would allow him to pay his student debt.
ECMC argues that the court's reliance on the debtor's age, amount of debt, earning history, and education as " additional circumstances" is incorrect because the debtor voluntarily chose to return to school later in life, earning his chiropractic degree at age 38 and medical degree at age 51. ECMC contends that what it views as poor choices disqualify the debtor from making age or amount of debt circumstances that present an insurmountable barrier to financial recovery and ability to pay.
The bankruptcy court was not persuaded by ECMC's counterargument. Nor are we.
As the Ninth Circuit instructed in Nys, bankruptcy courts may look to the unexhaustive list of " additional circumstances" provided by the BAP in Nys v. Educ. Credit Mgmt. Corp. (In re Nys), 308 B.R. 436, 446-47 (9th Cir. BAP 2004), which includes: the limited number of years remaining in the debtor's work life to allow payment of the loan, age or other factors that prevent retraining or relocation as a means for payment of the loan, lack of assets, and lack of better financial options elsewhere. Nys, 446 F.3d at 947.
We agree with the trial court that a preponderance of evidence indicates that additional circumstances exist indicating that the debtor's state of affairs is likely to persist for a significant portion of the repayment period.
C
The final prong of the Brunner test requires that the debtor affirmatively demonstrate good faith in his efforts to repay the student loan. Pena, 155 F.3d at 1114.
Good faith is measured by the debtor's efforts to obtain employment, maximize income, and minimize expenses. Educ. Credit Mgmt. Corp. v. Mason (In re Mason), 464 F.3d 878, 884 (9th Cir. 2006) (citing with approval Pa. Higher Educ. Assistance Agency v. Birrane (In re Birrane), 287 B.R. 490, 499 (9th Cir. BAP 2002)).
Courts will also consider a debtor's effort -- or lack thereof -- to negotiate a repayment plan, although a history of making or not making payments is, by itself, not dispositive. Mason, 464 F.3d at 884; Birrane, 287 B.R. at 499-500.
ECMC argues that the debtor has not shown good faith because he has not made a single payment on his student loan debt and has not maximized his income by taking all reasonable efforts to obtain the highest-paying employment given his two doctorate degrees. Furthermore, ECMC contends that the debtor's rejection of an alternative repayment option under the Ford Program and his admission that he filed for bankruptcy primarily to discharge his student loans less than one year after the loans went into repayment evidence a lack of good faith.
The court concluded that the third prong of the Brunner test was satisfied because it could not be considered a lack of good faith that the debtor did not enter the Ford Program due to his nonexistent income during the aforementioned period and the fact that he was approved by ECMC for unemployment deferments and hardship forbearances. The court also considered the debtor's lack or small amount of available net income, the substantial amount of other loans that would need to be paid, and the possible adverse tax consequences, to conclude that it was not a lack of good faith for the debtor not to have applied for acceptance into the Ford Program.
The court erred in this regard. It examined the third prong of the Brunner test under an incorrect standard of the law. A demonstration that one does not lack good faith does not equate to affirmative proof of good faith.
As ECMC argues, the inquiry is not whether the debtor did not demonstrate a lack of good faith. Rather, the correct inquiry is whether the debtor demonstrated affirmative good faith efforts to repay his loan.
In one of its most recent decisions on 11 U.S.C. § 523(a)(8), the Ninth Circuit held that the debtor was required to exhibit affirmative good faith efforts to repay his loan through diligently pursuing options, such as the Income Contingent Repayment Plan (" ICRP"), when available. Mason, 464 F.3d at 885.
The Ninth Circuit also cited Birrane, a BAP decision, which reversed the bankruptcy court because the debtor there did not use her " best efforts to maximize her income" and failed to take steps towards re-negotiating a repayment schedule under ICRP. Mason, 464 F.3d at 884; See Birrane, 287 B.R. at 499-500.
In this case, we are not persuaded that the debtor has exhibited a good faith effort to maximize his income. Despite his doctorate education, the debtor's employment at a home improvement retailer is his first job in ten years obtained ostensibly because his loan funds were running out.
The debtor may not willfully or negligently cause his own default, but rather his condition must result from " factors beyond his reasonable control." Birrane, 287 B.R. at 500. Working at Lowe's as a customer service representative, in which his on-call status precludes him from obtaining additional work for additional income, is not a factor beyond the debtor's reasonable control. The debtor has not used his best efforts to maximize his income, and, thus, we cannot conclude that a good faith effort to repay his loan has been made.
Moreover, while we are mindful that negotiating a repayment plan is not required to demonstrate good faith effort, it is a factor considered by courts. See Mason, 464 F.3d at 884; Birrane, 287 B.R. at 499-500. The debtor in Mason appeared to have made some previous efforts to negotiate repayment of his debt; however, even then, the Ninth Circuit concluded that his efforts were inadequate because he did not pursue the option of renegotiating his debt under the ICRP with diligence. Mason, 464 F.3d at 885. While we do not understand Mason to make the ICRP a sine qua non and understand that 11 U.S.C. § 523(a)(8) is an independent concept, Mason does confirm that pursuit of ICRP is evidence that is probative of good faith.
Here, the record does not establish that the debtor took any steps to negotiate an alternative repayment method to his loan, such as consolidating in an ICRP. In fact, he never attempted to repay any amount of his loan since it came due. Even if the debtor indicated at trial an understanding and awareness of consolidation programs available to him, the debtor did not pursue with diligence the option of alternative repayment methods. The evidence does not add up to an affirmative demonstration of good faith.
Accordingly, we conclude that the court erred in determining that the debtor satisfied the good faith prong of Brunner by reasoning that the debtor did not demonstrate a lack of good faith. The debtor must affirmatively show he made good faith attempts to repay.
If one of the elements of the three-part Brunner test is not established, then a dischargeable 11 U.S.C. § 523(a)(8) " undue hardship" has not been affirmatively demonstrated. Rifino, 245 F.3d at 1088. The conclusion that the debtor did not lack good faith does not suffice.
Thus, the order discharging the debtor's student loan to ECMC lacks adequate foundation.
CONCLUSION
Because there has not been adequate demonstration of good faith efforts to repay the debtor's $217,920 student loan debt to ECMC as required to establish 11 U.S.C. § 523(a)(8) " undue hardship, " the judgment of the bankruptcy court, only to the extent that it affects the ECMC debt, is REVERSED.