Coveney v. Costep Servicing Agent (In Re Coveney)

192 B.R. 140, 10 Tex.Bankr.Ct.Rep. 40, 1996 Bankr. LEXIS 122, 1996 WL 72351
CourtUnited States Bankruptcy Court, W.D. Texas
DecidedJanuary 2, 1996
Docket19-50417
StatusPublished
Cited by13 cases

This text of 192 B.R. 140 (Coveney v. Costep Servicing Agent (In Re Coveney)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coveney v. Costep Servicing Agent (In Re Coveney), 192 B.R. 140, 10 Tex.Bankr.Ct.Rep. 40, 1996 Bankr. LEXIS 122, 1996 WL 72351 (Tex. 1996).

Opinion

OPINION

RONALD B. KING, Bankruptcy Judge.

This adversary proceeding concerns the dischargeability of student loans based upon alleged undue hardship. Cathryn R. Cove-ney (the “Debtor”) obtained student loans to assist her in pursuing a college education. The Texas Guaranteed Student Loan Corporation (“TGSLC”) guaranteed these loans. The Debtor defaulted on her student loans and TGSLC, pursuant to its guaranty, purchased the notes from the lenders. The Debtor is indebted to TGSLC in the total amount of $19,299.90 as of January, 1995, with interest continuing to accrue.

The Debtor successfully acquired a Bachelor’s degree in biology and partially completed a Master’s degree. The Debtor initially made payments on her loans, but subsequently ceased making payments due to the fact that she lost her job and became pregnant. Also, she was having problems with an abusive, alcoholic husband. The Debtor’s “best job” in Houston, Texas paid $21,000.00 per year with a net monthly income of $1,300.00, which the Debtor claims is approximately $500.00 per month less than her monthly expenses would be if she and her child still lived in Houston.

The Debtor has no health problems. She moved to Crystal City, Texas, however, to care for her mother, who is effectively confined to a chair because of a hip replacement, bad knees, and a back condition. The Debt- or claims that her mother receives $900.00 monthly in Social Security benefits. Her mother pays the rent, utilities, and allows the Debtor the use of a car. The Debtor has not found employment in Crystal City, although she claims she has been actively looking. She has not looked outside Crystal City for employment since 1993. The Debtor acknowledges that her mother is not a legal dependent, but insists that her mother is physically dependent on her. The Debtor’s three and one half year old child receives $231.00 monthly from Social Security, but no child support is paid by the child’s father.

The Debtor argues that the Brunner standard, which was accepted by this Court in Stebbins-Hopf, has been met because the Debtor’s situation is likely to remain the same and the Debtor has made a good faith effort to repay the loans. TGSLC argues that the Brunner standard has not been met because the Debtor’s moral obligation to her mother does not excuse her legal obligation to repay her debt. Further, TGSLC argues that there is no evidence of a present inability to work, and there may be evidence of bad faith because the Debtor has not looked outside of Crystal City for a job in two years.

DISCUSSION

A discharge of the Debtor’s student loans is not warranted under the hardship exception of section 523(a)(8)(B) of the Bankruptcy Code if the Debtor does not satisfy the Brunner test. In re Roberson, 999 F.2d 1132, 1135 (7th Cir.1993); Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987); Stebbins-Hopf v. Texas Guar. Student Loan Corp. (In re Stebbins-Hopf, 176 B.R. 784, 786-787 (Bankr.W.D.Tex.1994).

Section 523(a)(8)(B) of the Bankruptcy Code provides an exception to a debtor’s discharge:

(8) for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any *142 program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship, or stipend, unless—
(B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents....

11 U.S.C. § 523(a)(8) (Supp. V 1993). Because the Bankruptcy Code does not define “undue hardship,” bankruptcy courts have taken different approaches in actions to determine the dischargeability of student loans. A review of the case law demonstrates that the Fifth Circuit has not adopted an undue hardship standard, but the trend is toward the adoption of the standard set forth by the Second Circuit in Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987):

“[UJndue hardship” requirfes] a three-part showing: (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. See Roberson, 999 F.2d at 1135; Cheesman v. Tennessee Student Assistance Corp. (In re Cheesman), 25 F.3d 356, 359-60 (6th Cir.1994) cert. denied, - U.S. -, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995); Ammirati v. Nellie Mae, Inc. (In re Ammirati), 187 B.R. 902, 905-907 (D.S.C.1995); Cobb v. University of Toledo (In re Cobb), 188 B.R. 22, 23-24 (Bankr.N.D.Ohio 1995); Stebbins-Hopf, 176 B.R. at 786. 1

The first prong of the Brunner test requires an examination of the debtor’s current income and expenses to determine if repayment of the loan would cause the debt- or to fall below a minimal standard of living for the debtor and her dependents. Stebbins-Hopf, 176 B.R. at 786. This is a threshold matter which must be met before the court examines the next two prongs. Id. Because information involving the debtor’s current financial status is readily available, the debtor must, at the very least, “[demonstrate] that ... [s]he is unable to earn sufficient income to maintain [her] self and [her] dependents and to repay the educational debt.” Roberson, 999 F.2d at 1135 (quoting Commission on the Bankuptcy Laws of the United States, Report, H.R.Doc. No. 137, 93d Cong., 1st Sess., Pt. II, at 140 n. 15 (1973)).

The second prong of this test requires that the debtor show that her strained financial condition, demonstrated by the application of the first prong of the test, will continue for a significant portion of the repayment period. Stebbins-Hopf, 176 B.R. at 786. This part of the test is consistent with Congress’s intention that there be “undue hardship” and not simply “ordinary hardship.” Mathews v. Higher Educ. Assistance Found. (In re Mathews), 166 B.R. 940, 943 (Bankr.D.Kan.1994). “[T]he dischargeability of student loans should be based upon the certainty of hopelessness, not simply a present inability to fulfill financial commitment.”

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192 B.R. 140, 10 Tex.Bankr.Ct.Rep. 40, 1996 Bankr. LEXIS 122, 1996 WL 72351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coveney-v-costep-servicing-agent-in-re-coveney-txwb-1996.