In Re: Rose A. Tirch, Debtor. Rose A. Tirch v. Pennsylvania Higher Education Assistance Agency

409 F.3d 677, 2005 U.S. App. LEXIS 10139, 2005 WL 1311020
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 3, 2005
Docket04-3125
StatusPublished
Cited by74 cases

This text of 409 F.3d 677 (In Re: Rose A. Tirch, Debtor. Rose A. Tirch v. Pennsylvania Higher Education Assistance Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re: Rose A. Tirch, Debtor. Rose A. Tirch v. Pennsylvania Higher Education Assistance Agency, 409 F.3d 677, 2005 U.S. App. LEXIS 10139, 2005 WL 1311020 (6th Cir. 2005).

Opinion

OPINION

BATCHELDER, Circuit Judge.

Defendant-Appellant Pennsylvania Higher Education Assistance Agency (“PHEAA”) appeals the Bankruptcy Appellate Panel’s (“BAP”) order affirming the bankruptcy court’s order granting partial discharge of Plaintiff-Appellee Rose Tirch’s student loan debt. Because the record does not support the bankruptcy court’s findings that Tirch’s ailments preclude her return to work and are likely to persist for a significant portion of the repayment period, or that she made a good faith effort to pay back her student loans, we will REVERSE.

Tirch, a single female in her mid-40s, holds a B.A. in Counseling, which she received in the mid-1980’s and a Master’s Degree in Counseling, which she received in 1998. Tirch financed her education through a total of 17 loans provided by PHEAA and owed an aggregate balance of $84,604.65 as of June 19, 2001, with interest accruing at a rate of $558.08 per month. As of the filing of this appeal, Tirch, who first defaulted on her loans on October 24, 2000, had made $3,072.75 in payments on the loans and had arranged for her alma mater, Franciscan University of Steubenville, to make a charitable payment of $1,850.77.

After receiving her Master’s Degree, Tirch worked in various counseling positions and earned about $27,000 in 1999, $28,500 in 2000, and $27,500 in 2001. Claiming various long-term medical and emotional problems, including attention deficit disorder, chronic anxiety and depression, as well as colorectal surgery in December 2001, from which she has had a slow recovery, Tirch stopped working at the end of 2001. Apparently as a result of anaesthetics administered during the surgery, Tirch lost her sense of taste, which has affected her appetite and which she contends has made a return to work impossible. For a period of 24 months, Tirch received $1,400 per month in disability benefits based on her allegedly debilitating mental condition.

Sometime in 2000 — Tirch does not provide us with the date — Tirch filed for protection under Chapter 7 of the Bankruptcy Code. In August of 2000, some sixteen months before she stopped working, Tirch filed an adversary proceeding against PHEAA in her Chapter 7 case, seeking a discharge of her student loan debt for “undue hardship” pursuant to 11 U.S.C. § 523(a)(8). The bankruptcy court held a trial on August 16, 2002, at which Tirch was the only witness. During the trial, Tirch described her medical and emotional problems and produced unauthenticated records from her treating doctors, which the bankruptcy court admitted solely as evidence that she had sought medical help, but not as evidence of the underlying med *680 ical diagnoses. She also testified that she did not apply to participate in the William D. Ford Federal Direct Consolidation Program. This program includes an Income Contingent Repayment (“ICR”) plan whereby the lenders and loan guarantors are repaid by the Program, and the borrower becomes obligated to repay the Program a reduced amount for a period of up to 25 years, after which time any unpaid portion is discharged. Tirch admitted that she was aware of the program’s existence but elected not to avail herself of its benefits.

Applying the three-part test announced by the Second Circuit in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir.1987), the bankruptcy court granted Tirch a partial discharge of her student loan debt, holding that requiring Tirch to pay her student loans in an amount in excess of $200.00 per month once she returns to work and earns a salary of at least $20,000 per year would impose an undue hardship. The bankruptcy court’s order allows Tirch to discontinue payments at age 65 in any eventuality. The BAP affirmed the bankruptcy court’s order. PHEAA timely appealed.

We focus our review of cases appealed from the BAP on the bankruptcy court’s decision, examining findings of fact for clear error, and conclusions of law de novo. In re Palmer, 219 F.3d 580, 583 (6th Cir.2000). Whether the repayment of student loans would impose an undue hardship on the debtor is a question of law that we review de novo. In re Cheesman, 25 F.3d 356, 359 (6th Cir.1994).

The Bankruptcy Code provides for the complete discharge of educational loans whose repayment would impose an “undue hardship” on the debtor. 11 U.S.C. § 523(a)(8). Despite the fact that 11 U.S.C. § 523(a)(8) makes no mention of partial discharges, we have held that the bankruptcy court may grant a partial discharge of such a debt pursuant to the equitable powers enumerated in 11 U.S.C. § 105(a). In re Miller, 377 F.3d 616, 620-21 (6th Cir.2004) (citing Tenn. Student Assistance Corp. v. Hornsby, 144 F.3d 433, 439-40 (6th Cir.1998)); see also DeMatteis v. Case Western Reserve University, 97 Fed.Appx. 6, 9 (6th Cir.2004) (unpublished). Miller held that “the requirement of undue hardship must always apply to the discharge of student loans in bankruptcy-regardless of whether a court is discharging a debtor’s student loans in full or only partially.” Id. at 622.

Because “undue hardship” is not defined by the Bankruptcy Code, this circuit has traditionally looked to the Brunner test for guidance. See, e.g., In re Cheesman, 25 F.3d at 359 (applying the Brunner test to plaintiffs request for a total discharge of student loans); Miller, 377 F.3d at 623 (analyzing the bankruptcy court’s grant of a partial discharge of student loans under Brunner). Very recently, however, we explicitly adopted the Brunner test. In re Oyler, 397 F.3d 382, 385 (6th Cir.2005). Accordingly, in this circuit, a debtor seeking a partial discharge of student loans due to “undue hardship” must make 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

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Bluebook (online)
409 F.3d 677, 2005 U.S. App. LEXIS 10139, 2005 WL 1311020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rose-a-tirch-debtor-rose-a-tirch-v-pennsylvania-higher-ca6-2005.