In Re Virginia M. Pelkowski A/K/A Virginia M. Dodd, Debtor, Ohio Student Loan Commission, the Loan Servicing Center, James K. McNamara Esq., Trustee

990 F.2d 737, 120 A.L.R. Fed. 853, 28 Collier Bankr. Cas. 2d 1023, 1993 U.S. App. LEXIS 5798, 1993 WL 80714
CourtCourt of Appeals for the Third Circuit
DecidedMarch 24, 1993
Docket92-3309
StatusPublished
Cited by108 cases

This text of 990 F.2d 737 (In Re Virginia M. Pelkowski A/K/A Virginia M. Dodd, Debtor, Ohio Student Loan Commission, the Loan Servicing Center, James K. McNamara Esq., Trustee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Virginia M. Pelkowski A/K/A Virginia M. Dodd, Debtor, Ohio Student Loan Commission, the Loan Servicing Center, James K. McNamara Esq., Trustee, 990 F.2d 737, 120 A.L.R. Fed. 853, 28 Collier Bankr. Cas. 2d 1023, 1993 U.S. App. LEXIS 5798, 1993 WL 80714 (3d Cir. 1993).

Opinion

OPINION OF THE COURT

SLOVITER, Chief Judge.

The issue before us, whether a non-student co-obligor of a guaranteed educational loan may be discharged from that debt in bankruptcy without proving one of the statutory exceptions, is one of first impression in the courts of appeals. Over the last ten years, the bankruptcy courts have divided on this issue, 1 although the three district courts to have considered it have decided against discharge. 2

I.

Facts and Procedural History

The relevant facts were stipulated in the bankruptcy court. Appellant Virginia M. Pelkowski, a/k/a Virginia M. Dodd, filed a voluntary petition for Chapter 7 bankruptcy and listed among her debts seven loans guaranteed by the Ohio Student Loan Commission for the educational expenses of her children, Christine and Michael. Pelkowski filed a complaint against the Loan Commission to determine dischargeability of the seven loan debts under Bankr.Rule 4007 and 11 U.S.C. § 523(a)(8) (1988).

Pelkowski signed six of the notes as comaker, four with Christine and two with Michael. 3 As of April 23,1991, Pelkowski’s *739 liability was $7,163.74 plus 9% interest on the loans for Christine’s educational expenses and $3,817.12 plus 9% interest on the loans for Michael’s educational expenses.

The bankruptcy court ordered the debts discharged. 135 B.R. 254 (Bankr.W.D.Pa.1992). The court held that 11 U.S.C. § 523(a)(8), the statutory provision limiting dischargeability of debts for certain educational loans, was inapplicable to non-student co-makers of notes for such loans. Thus, Pelkowski was not required to prove either of the exceptions to nondischarge-ability, i.e., that the loan came due more than five (now seven) years before she filed the bankruptcy petition, 11 U.S.C. § 523(a)(8)(A), or that nondischarge of the debt would create “undue hardship” for her and her dependents, id. § 523(a)(8)(B). The bankruptcy court acknowledged that there was a split of authority, but chose to follow cases such as In re Boylen, 29 B.R. 924, 926-27 (Bankr.N.D.Ohio 1983), which held that section 523(a)(8) was intended to apply .only to student obligors. The Loan Commission appealed.

The district court reversed. It distinguished Boylen, treating as dictum the Boylen court’s discussion of the applicability of section 523(a)(8) to non-student comakers of loan notes. Instead, the district court agreed with the majority of recent bankruptcy court decisions which held that section 523(a)(8) applies equally to non-student co-makers and student makers. See cases cited note 1 supra. In view of the parties’ stipulation in the bankruptcy court that Pelkowski could not meet either of the statutory exceptions to discharge, the district court held that the six loan debts were nondischargeable.

There was a seventh note which Pelkow-ski signed as sole maker for the educational expenses of Christine. The bankruptcy court, relying on In re Hudak, 113 B.R. 923 (Bankr.W.D.Pa.1990), held that Pelkow-ski’s debt as sole maker was nondischargeable and ordered the debt of $1,388.89 plus 12% interest not discharged. Pelkowski apparently conceded this issue and did not appeal the order of nondischargeability of that debt to the district court, nor does she challenge that holding here.

Pelkowski appeals the order holding non-disehargeable the six loans on which she served as co-obligor. We have jurisdiction under 28 U.S.C. § 158(d) (1988). As this case turns on the interpretation of a provision of the Bankruptcy Code, our review is plenary. In re Roth Am., Inc., 975 F.2d 949, 952 (3d Cir.1992). 4

II.

Discussion

A.

The Guaranteed Student Loan Program (hereafter Program), which was established as part of the comprehensive Higher Education Act of 1965, was designed to ensure that colleges and students attending colleges would have reasonable access to low interest rate loans. S.Rep. No. 673, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 4027, 4030. Under the Program, educational loans from banks, credit unions, educational institutions, and other lenders are insured by the United States Department of Education or by state agencies or nonprofit organizations and rein-sured by the Department of Education. 20 U.S.C. §§ 1078, 1084, 1085(d) (1988); see H.R.Rep. No. 595, 95th Cong., 2d Sess. 135, 140 (1977), reprinted in 1978 U.S.C.C.A.N. *740 5787, 5963, 6096, 6101. If the borrower fails to make repayments because of death or disability, or is relieved of the obligation to pay through discharge in bankruptcy, the lender is entitled to repayment from the federal government. 20 U.S.C. § 1087; see H.R.Rep. No. 595, at 135, 140, reprinted in 1978 U.S.C.C.A.N. at 6096, 6101.

Initially, loans made under the Program were fully dischargeable in bankruptcy. A major change in this regard was effected by the Bankruptcy Reform Act of 1978 which severely restricted dischargeability of student loans. 5 That provision, section 523(a)(8), in the form applicable to Pelkow-ski, reads:

(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt—
(8) for an educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution of higher education, unless—
(A) such loan first became due before five years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition; or
(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) (1988). 6

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Bluebook (online)
990 F.2d 737, 120 A.L.R. Fed. 853, 28 Collier Bankr. Cas. 2d 1023, 1993 U.S. App. LEXIS 5798, 1993 WL 80714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-virginia-m-pelkowski-aka-virginia-m-dodd-debtor-ohio-student-ca3-1993.