Bray v. Educational Credit Management Corp. (In Re Bray)

332 B.R. 186, 2005 Bankr. LEXIS 1987, 2005 WL 2655249
CourtUnited States Bankruptcy Court, W.D. Missouri
DecidedOctober 14, 2005
Docket19-60160
StatusPublished
Cited by11 cases

This text of 332 B.R. 186 (Bray v. Educational Credit Management Corp. (In Re Bray)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bray v. Educational Credit Management Corp. (In Re Bray), 332 B.R. 186, 2005 Bankr. LEXIS 1987, 2005 WL 2655249 (Mo. 2005).

Opinion

MEMORANDUM OPINION

DENNIS R. DOW, Bankruptcy Judge.

The subject of this adversary proceeding is a complaint filed by Debtor Brian Douglas Bray (“Debtor”) seeking a determination that his student loan debt should be discharged pursuant to 11 U.S.C. § 523(a)(8) on the ground that repayment of that debt would impose upon him an undue hardship. The Court has jurisdiction over the claim asserted in the complaint pursuant to 28 U.S.C. §§ 1334(b), 157(a) and (b). This is a core proceeding which the Court may hear and determine pursuant to 28 U.S.C. § 157(b)(2)(I). The following constitutes my Findings of Fact and Conclusions of Law in accordance with Rule 52 of the Federal Rules of Civil Procedure made applicable to this proceeding by Rule 7052 of the Federal Rules of Bankruptcy Procedure. For the reasons set forth below, I find that Debtor’s student loan debt is dischargeable pursuant to § 523(a)(8) as repayment of the debt would impose upon him an undue hardship.

I. FACTUAL BACKGROUND

Debtor, who is now 41 years old, is a 1988 graduate of Kansas Weslyan College with a joint degree in psychology and religion. From the period 1989 through 1998, *190 during which he also worked full time, Debtor worked toward and eventually obtained a Masters Degree in Educational Psychology from Kansas State University. During that period, Debtor took out a number of student loans, two of which he continues to pay and as to which he has not sought discharge. The remaining loan, now held by defendant Educational Credit Management Corporation (“ECMC” or “Defendant”) had a balance as of June 13, 2005 of $125,011.28 with interest accruing thereafter at the rate of $24.91 per day. Defendant’s Exhibit 1. After graduation, Debtor applied for a number of jobs in his field. Debtor utilized various resources to seek employment opportunities including the career center at Kansas State University and numerous websites. Debtor testified to having applied to no less than 104 schools for positions in his field during the period from 1998 to 2000. He obtained three interviews, but no job offer.

In 1990, while Debtor was working toward his graduate degree, he met and married the co-debtor in the underlying Chapter 7 proceeding, Dianna Kay Bray. At the time, she was working on a masters degree as well. In 1995, a daughter, Jordan, was born to the couple. Dianna graduated in 1998 and was offered employment as a science teacher in Versailles, MO, where the family moved. Debtor was hired as a library assistant in Versailles where he worked for approximately one and one-half years. Sometime in the year 2000, Debtor obtained a job with the Missouri River Regional Library in Jefferson City, where he still works. He commuted between Versailles and Jefferson City for three years. Unfortunately, sometime at the end of 2002 or early 2003, the couple developed marital difficulties and separated. Debtor moved to Jefferson City and obtained an apartment.

Debtor and Dianna filed a joint Chapter 7 proceeding in this Court on January 20, 2004. They were separated, but not yet divorced at the time of filing. While he had an apartment, Debtor also spent time at the home of his new girlfriend, his current wife, Kelly. A discharge was entered in the Chapter 7 proceeding on April 27, 2004.

On April 14, 2004, Debtor initiated this adversary proceeding and obtained a default judgment on June 4, 2004. That judgment was ultimately set aside upon the motion of Defendant ECMC as a result of the Court’s conclusion that the complaint had not been properly served.

In the meantime, Debtor and Dianna obtained a divorce in July 2004. Pursuant to the terms of the dissolution, Dianna has custody of the couple’s daughter, Jordan. Debtor was ordered to pay $252.00 per month in child support and has visitation rights under which Jordan visits him every other weekend, alternate holidays and six weeks during the summer. Debtor is obligated to pay one-half of her medical and other educational expenses, including the costs of college education. Debtor testified that his ex-wife has indicated her intention to modify the visitation arrangements, although no proceeding is yet pending. Debtor has hired counsel to defend him in that proceeding, although he has yet to pay counsel a retainer.

On August 14, 2004, Debtor remarried. His current spouse, Kelly, has three children, John age 16, Kelsey age 19 and Lindsey age 22. Lindsey has a child of her own, Catlin, who is approximately two years old. At the time of the trial, Kelsey was also expecting a child. All of these children live with Debtor and Kelly in the home Kelly owns.

Debtor still works at the library in Jefferson City earning a gross monthly income of $1,710.80 with net earnings of *191 $1,390.85. Plaintiffs Ex. 1. Debtor also testified that he has tried several times to secure a higher paying position, but without success. His new wife, Kelly, works at Capitol Regional Medical Center. Her monthly take home pay is approximately $667.00 per month. Plaintiffs Ex. 1. She currently works part time, but prior to January 2005, had been employed in a full-time capacity. John receives Social Security income of $655 per month which will terminate when he turns 18, approximately one year from now. Kelsey was working part-time at Target, but based on doctor’s orders, ceased that employment. After the birth of her child, she intends to go back to work. At the time she ceased working, she was working part-time and making approximately $250 per month. Plaintiffs Ex. 1. A full-time equivalent would be approximately $545.00 per month. Plaintiffs Post-Trial Brief, p. 4. Finally, Lindsey also works at Capitol Regional Medical Center and has a monthly take home pay of approximately $1,100.00. Plaintiffs Ex. 1.

II. DISCUSSION

A. Applicable Legal Principles on Determination of Undue Hardship

Debtor contends that it would be an undue hardship for him to repay the remaining amount due on his student loan. Under § 523(a)(8), certain student loans are nondischargeable unless repayment of the loan would impose an undue hardship on the debtor or his dependents. The burden of establishing undue hardship, by a preponderance of the evidence, is on the debtor. Ford v. Student Loan Guarantee Found. of Arkansas (In re Ford), 269 B.R. 673, 675 (8th Cir. BAP 2001); Andrews v. South Dakota Student Loan Assistance Corp. (In re Andrews), 661 F.2d 702, 704 (8th Cir.1981).

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332 B.R. 186, 2005 Bankr. LEXIS 1987, 2005 WL 2655249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bray-v-educational-credit-management-corp-in-re-bray-mowb-2005.