Abney v. United States Department of Education (In re Abney)

540 B.R. 681
United States Bankruptcy Court, W.D. Missouri·Decided November 10, 2015·No. Case No. 15-60501; Adversary No. 15-6027·Published·Cited by 9 cases

Opinion

MEMORANDUM OPINION

Arthur B. Federman, Chief Bankruptcy Judge

Debtor Michael Kevin Abney seeks a determination that repayment of his student loans will impose an undue hardship upon him and his dependents and that the loans should therefore be discharged pursuant to 11 U.S.C. § 523(a)(8). The following constitutes my Findings of Fact and Conclusions of Law in accordance with Rule 7052 of the Federal Rules of Bankruptcy Procedure. For the reasons that follow, the Court finds that the Debtor has met his burden under § 523(a)(8) and that judgment should be entered in his favor, discharging his student loans.

The Debtor’s Student Loans

The Debtor incurred his student loans while attending school at Missouri Southern State University from the spring of 1994 to the fall of 1998. He incurred a total of approximately $25,000 in student loans, which are now consolidated. He did not graduate. He testified that the monthly payment at the time he left school was about $210 per month, and that he defaulted early in the loan history. However, in about 2001, he brought the loans out of default by paying $1,600 and then began to make the $210 monthly payments. He had at least one deferment after 2001, but made a total of about $11,000 in payments before he defaulted again in January 2008. As of August 2015, the Debtor owed $37,243.28 in principal and interest on the consolidated student loans.

Standard for Discharge of Student Loans

Section 523(a)(8) provides an exception to discharge for student loans unless the debtor is able to prove that excepting such debt from discharge would impose an undue hardship on the debtor [684] and the debtor’s dependents. In the Eighth Circuit, courts apply a totality-of-the-circumstances test in determining whether a student loan should be discharged.1 Under this test, courts must consider the debtor’s past, present, and reasonably reliable future financial resources; the debtor’s reasonable and necessary living expenses; and any other relevant facts and circumstances.2 The debtor has the burden of proving undue hardship by a preponderance of the evidence.3 The burden has been described as “rigorous”: if the debtor’s reasonable future financial resources will sufficiently cover payment of the student loan debt— while still allowing for a minimal standard of living — then the debt should not be discharged.4 And, while the availability of an income contingent repayment plan is not determinative as to undue hardship, it is an important factor in the Eighth Circuit.5

The Debtor’s Past, Present, and Reasonably Reliable Future Financial Resources

The Debtor (who appeared pro se) is forty years old and is unmarried. He is currently employed as a delivery driver, but at times in the past, he has worked as an over-the-road truck driver. He currently earns gross regular income of $2,420 per month, plus overtime in the approximate amount of $643 per month, for a total gross monthly income of approximately $3,063 per month. After payroll deductions for taxes, a modest retirement contribution, insurance, and child support, discussed below, his net take-home pay is approximately $1,183.6 The Debtor testified that, due to Department of Transportation limitations on hours of service,7 he is unable to earn any more than what he is currently earning with the overtime, even if he took a second driving job. He also testified without contradiction that he has no job skills other than as a driver. He testified he had made more money as an over-the-road truck driver, but that his expenses were also higher then. In addition, the Debtor’s ex-wife testified that some of the litigation concerning visitation with his son, discussed more fully below, was premised on the Debtor’s being out on the road. The implication was that driving on-the-road adversely affects the Debtor’s visitation privileges. The Debtor currently makes a voluntary contribution of $62 per month toward a retirement plan through his employer,8 but has only saved about $540 in a 401k.9 He has no other retirement savings.

Based on the evidence and testimony, I find that the Debtor is maximizing his [685] earnings potential, and that it is not likely that his financial resources will improve significantly in the future.

The Debtor’s Living Expenses

The Debtor has two children: an eleven-year-old son, and a seven-year-old daughter. He pays child support to the mother of his son (his former wife) in the amount of $450 per month, and to the mother of his daughter in the amount of $350 per month. He is also paying an additional $288.46 per month to cure child support arrearages, for total child support payments of $1,038.46 per month, which is being deducted from his paycheck, as mentioned above. He expects to cure the ar-rearage by the end' of the year, which will reduce the total monthly child support deduction to the original $750 amount. The Debtor testified that he has been involved in protracted litigation with the mothers of his children over visitation and custody issues and expects that litigation to continue in the future. It was readily evident at the hearing that the Debtor wishes to have meaningful relationships with his children and that he is making every effort to make his child support payments, discussed more fully below.

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Abney v. United States Department of Education (In re Abney), 540 B.R. 681 (Mo. 2015).

540 B.R. 681 (Abney v. United States Department of Education (In re Abney)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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