Kuhns v. Pennsylvania Higher Education Assistance Agency (In re Kuhns)

33 B.R. 759, 1983 Bankr. LEXIS 5219
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedOctober 18, 1983
DocketBankruptcy No. 3-82-01211; Adv. No. 3-82-0358
StatusPublished
Cited by1 cases

This text of 33 B.R. 759 (Kuhns v. Pennsylvania Higher Education Assistance Agency (In re Kuhns)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuhns v. Pennsylvania Higher Education Assistance Agency (In re Kuhns), 33 B.R. 759, 1983 Bankr. LEXIS 5219 (Ohio 1983).

Opinion

PRELIMINARY PROCEDURE

CHARLES A. ANDERSON, Bankruptcy Judge.

This matter is before the Court for disposition of Plaintiff-Debtor’s Complaint seeking to have his obligation to Defendant-Creditor determined dischargeable pursuant to 11 U.S.C. § 523(a)(8)(A) and (B). The Court held a continued pretrial conference on August 30, 1982. On July 14, 1983 the parties filed an agreed joint Pretrial Order with the Court. The matter was tried on August 24,1983. The Plaintiff submitted a post trial memorandum on 1 September 1983; and, the Defendant on 2 September 1983. The following decision is based upon the Pretrial Order, the pleadings, the evidence adduced at trial and the post trial memoranda of the parties.

FINDINGS OF FACT

Plaintiff-Debtor filed a Petition for relief under 11 U.S.C. Chapter 7 on April 26,1982 listing obligations of $6,587.19, of which, at the time the Petition was filed, $3,327.19 was alleged by Plaintiff-Debtor to be due Defendant-Creditor. Defendant-Creditor avers the sum of $3,393.35 to be due. Both sums apparently include interest accrued to an unspecified date, not completely clarified by the evidence adduced.

The Proof of Claim filed in the case on 12 July 1982 by the Defendant is the only definite evidence. It claims a principal amount due in the amount of $2,618.18, plus accrued interest of $775.17, prima facie established.

The $2,000.00 note provided for repayment, in pertinent part, as follows:

“I/We agree to repay the principal and interest of this loan over a period commencing nine months from the date on which the student borrower ceases to be enrolled on at least a half time basis (as determined by the educational institution) at an institution of higher education approved by the United States Commissioner of Education and extending over a period of not less than five (5) or more than ten (10) years after such date but in no event over a period in excess of fifteen (15) years from the execution of this note, and the total of of the payments during any year of the repayment period with respect to the aggregate amount of all loans of the student borrower insured or guaranteed under the provisions of the Higher Education Act of 1965, as amended, shall not be less than $360 or the balance of all loans insured or guaranteed under the provisions of the Higher Education Act of 1965, as amended, (together with interest thereon) whichever amount is less. I/We further agree to execute a new promissory installment note on PHEAA Form 600R covering all unpaid principal and interest prior to the commencement of the repayment period.
I/We further agree to pay in addition to the principal and interest due any insurance premiums that the lending insti-tuís required to pay PHEAA in order to obtain insurance coverage on the principal amount and interest due on this note.
The due date of this note shall be extended for a period not in excess of three years during which the student borrower is a member of the Armed Forces of the United States, serves as a volunteer under the Peace Corps Actor serves as a full-time volunteer in service to America under Title VIII of the Economic Opportunity Act of 1964, and extension of this note during such periods shall not be included in determining the period during which repayment must be completed. This note may also be extended by mutual agreement of the Lending Institution and PHEAA if the student borrower becomes sick or is temporarily disabled. It is further agreed that during all periods that principal payments are not required, interest shall accrue and be paid.
In the event of the death or permanent and total disability of the student borrower, PHEAA shall discharge the stu[761]*761dent borrower’s liability by paying to the holder the amount of principal and interest due on this note.
No extensions of time for the payment of all or any part of the amount owing hereunder at any time shall effect my/our liability with respect hereto. Demand and presentment for payment and dishonor of this note are hereby expressly waived.

The $1,000.00 note provided for repayment in essential part the same as the foregoing, with minor modifications.

The amount due was derived from two Notes executed by the Plaintiff-Debtor in favor of Second Federal Savings and Loan Association of Pittsburg, Pa. One note dated November 21,1975 was for two thousand dollars ($2,000.00) and the other, dated August 12, 1977, was for one thousand dollars ($1,000.00). Both bear interest at 7% per annum, computed as simple interest. Plaintiff-Debtor’s obligation to Defendant-Creditor, as claimed by both parties, includes interest accrued to the date of filing and, according to Plaintiff-Debtor, reflects principal payments previously made in the amount of $381.82.

Both notes represented the loan of funds to the Plaintiff-Debtor, used for educational expenses at the Art Institution of Pitts-burg, where Defendant enrolled in a photography program. The Debtor obtained an Associate’s Degree and after graduation was periodically employed in the photographic field without marked financial success. He enlisted in the Navy as one way to make his income more assured. Plaintiff-Debtor ceased to be enrolled at the Art Institution of Pittsburg in September, 1977, and both parties agree the Notes are in default.

Plaintiff-Debtor has been serving in the United States Navy for several years and recently reinlisted for an enlistment period expiring in January 1987. He holds a rating relating to photography work and is stationed in the Washington D.C. Area. According to his testimony, which is uncon-tradicted, his specialty in the area of photography is one which does not command special service grades or additional income.

At the time of filing his Chapter 7 petition, Plaintiff-Debtor was married and had a small child. He also has a child from a former marriage and makes monthly payments to his ex-wife for support of that child.

Plaintiff-Debtor’s monthly take-home pay is approximately $920.00. His living expenses are in the range of $600.00 to $1,000.00 per month based on trial testimony which is imprecise and somewhat contradictory. The living expenses, which appear to total around $800.00 to $900.00 monthly, include $300.00 for rent, $146.00 for current and arrearage child support, and other usual and basic living costs. Therefore, the income at least covers Plaintiff-Debtor’s expenses.

Plaintiff-Debtor filed the instant complaint on June 9, 1982. Plaintiff-Debtor alleges that his debt to Defendant-Creditor does not qualify for an exemption from dischargeability pursuant to 11 U.S.C. § 523(a)(8)(A) and in the alternative said debt should be discharged pursuant to 11 U.S.C. § 523(a)(8)(B).

In response, Defendant-Creditor asserts that Plaintiff-Debtor is not entitled to a discharge under 11 U.S.C. § 523

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33 B.R. 759, 1983 Bankr. LEXIS 5219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuhns-v-pennsylvania-higher-education-assistance-agency-in-re-kuhns-ohsb-1983.