Lamento v. U.S. Dept. of Education (In re Lamento)

520 B.R. 667
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedOctober 29, 2014
DocketBankruptcy No. 13-18398; Adversary No. 14-1054
StatusPublished
Cited by3 cases

This text of 520 B.R. 667 (Lamento v. U.S. Dept. of Education (In re Lamento)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamento v. U.S. Dept. of Education (In re Lamento), 520 B.R. 667 (Ohio 2014).

Opinion

MEMORANDUM OF OPINION

PAT E. MORGENSTERN-CLARREN, Chief Judge.

The plaintiff-chapter 7 debtor Alethea Lamento brought this adversary proceeding seeking a determination that her student loan debt of about $72,000.00 is dis-chargeable under 11 U.S.C. § 523(a)(8) because repaying the loans would be an undue hardship. The two defendants, the United States of America, on behalf of the U.S: Department of Education, and Educational Credit Management Corporation, contest the complaint. For the reasons stated, the debtor proved that the loans are dischargeable.

JURISDICTION

This court has jurisdiction under 28 U.S.C. § 1334 and General Order No. 2012-7 entered by the United States District Court for the Northern District of Ohio on April 4, 2012. The debtor’s complaint to determine the dischargeability of her student loan debt is a core proceeding under 28 U.S.C. § 157(b)(2)(I) and is within the court's constitutional authority as analyzed by the United States Supreme Court in Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011).

THE TRIAL

The plaintiff presented her case through her own testimony, stipulated facts, and agreed exhibits. The defendants presented their cases through cross-examination, together with the stipulated facts and agreed exhibits.

The findings of fact are based on that evidence and reflect the court’s weighing of the evidence presented, including determining the credibility of the witness. “In doing so, the Court considered the witness’s demeanor, the substance of the testimony, and the context in which the statements were made, recognizing that a transcript does not convey tone, attitude, body language or nuance of expression.” In re The V Companies, 274 B.R. 721, 726 (Bankr.N.D.Ohio 2002). See Fed. R. BANKR.P. 7052 (incorporating Fed.R.Civ.P. 52). The court found the debtor’s testimony to be credible.

FACTS

The Debtor’s Education and Marriage History

The debtor Alethea Lamento married Carmen Lamento in 2000 when she was 21 years old. She had attended Notre Dame College for the three years before that, intending to major in psychology. Car[671]*671men1 did not want Alethea to continue to go to college, instead saying that she should stay home and take care of her family. Alethea left college at. that point and in November 2001 gave birth to their daughter. In addition to forbidding Aleth-ea from continuing with college, Carmen would not let her get a job.

Alethea described Carmen as “very controlling” and as mentally, emotionally, and psychologically abusive. She made police reports about some of his behavior, but did not take them further. Alethea gave birth to their son in August 2003. Again, Carmen would not let her return to college and said that she should stay home and take care of their children.

In about 2004, Alethea enrolled in the Academy of Court Reporting to learn court reporter skills. Her marriage continued to be difficult and she could not do the required daily practice. As a result, she dropped out within the year. She also started to work part-time at Giant Eagle, but then had to quit at Carmen’s insistence.

In 2006, Alethea enrolled in night classes at Stautzenberger College to become a paralegal. She encountered the same resistance from Carmen and gave the effort up after one year.2

Alethea and Carmen separated in 2007 and Alethea filed for divorce in July of that year. Alethea and the children moved in with her mother and the mother’s husband. Carmen did not at that time help with the children.

The two reconciled later in 2007 based on Carmen’s promise that he would change and everything would be different. In the meantime, Alethea had been getting medical help and had gone on anti-depressants. Because Alethea wanted to try to keep her family together for the children’s sake, she dismissed the divorce petition in December 2007.3 Carmen then broke all of his promises. In 2008, Alethea filed for divorce for the second time.4 She also began working at Giant Eagle, which is where she still works today. The court entered a divorce decree in May 2009.

Alethea and Carmen reconciled again and remarried, again because Alethea thought it would be best for the children. Three months later — in March 2010 — she filed for divorce and the court entered the decree soon thereafter.5

Each time that Alethea and Carmen separated, Alethea and the children moved in with Alethea’s mother and her mother’s husband. Her mother and stepfather did not charge her rent or for utilities because they were trying to help her get back on her feet. Alethea and the children have been living with these relatives continuously for the last four years with the same agreement. Alethea testified without contradiction that if she did not live rent-free with her mother and stepfather, she and the children would either be on the street or in Section 8 (government subsidized) housing.

Carmen does not have an obligation to pay child support for reasons that are not in the record. He does on occasion pick the children up from school, and he takes them every other weekend and every other holiday. When the children are with him, he feeds them and might buy them some clothes, but the testimony on the latter point was vague. A state court order directed him to pay one-half of the expenses [672]*672for the children’s braces, glasses, and activity fees. He paid his share of the activity fees, but refused to pay his share of the braces or glasses.

Alethea does not have health insurance; she is not eligible for Giant Eagle’s insurance and she was refused under the Affordable Care Act.6 She does not have a medical disability. Carmen pays for the children’s health insurance. Neither child has a medical disability.

Alethea’'s Employment at Giant Eagle

Alethea has continued to work part-time at Giant Eagle (32 hours a week) where she is now paid $10.15 an hour, slightly over the minimum wage. She has received raises over the years at the -rate of about 25 cents every four to five months. She tries to get extra hours, but they are only available on the days surrounding Thanksgiving, Christmas, and Easter.

In 2011 or 2012, Alethea took a second job as a waitress at a restaurant. When she worked those three nights, her mother watched the children. Alethea earned $2.13 an hour plus tips. She quit this job after about a year because it was too much for her mother- — who worked full time during the day — to take care of the children at night.

Alethea’'s Efforts to Find Better Employment

Alethea has been trying for the last three years to find a better job. She has applied twice at Giant Eagle for full-time positions, once as a health and beauty department manager and the second time as a front end team leader. She did not get either position.

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520 B.R. 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamento-v-us-dept-of-education-in-re-lamento-ohnb-2014.