Manion v. Modeen (In re Modeen)

586 B.R. 298
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJune 8, 2018
DocketCase No.: 17–11954–7; Adversary No.: 17–71
StatusPublished
Cited by3 cases

This text of 586 B.R. 298 (Manion v. Modeen (In re Modeen)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manion v. Modeen (In re Modeen), 586 B.R. 298 (Wis. 2018).

Opinion

(3) That the debtor has made good faith efforts to repay the loans.

In re Roberson , 999 F.2d 1132, 1135 (7th Cir. 1993).

The debtor has the burden of establishing each element of the test by a preponderance of the evidence. Goulet v. Educ. Credit Mgmt. Corp. , 284 F.3d 773, 777 (7th Cir. 2002).

1. Minimal Standard of Living

The Court must first address whether Defendant would still be able to maintain a "minimal" standard of living if she is compelled to pay the Manion Loan. This first prong "should serve as the starting point ... since information regarding the debtor's current financial situation generally will be concrete and readily obtainable." Roberson , 999 F.2d at 1135. Put simply, the basic question is whether the Defendant's present income and expenses permit repayment. See Nelsen v. Educ. Credit Mgmt. Corp. (In re Nelson) , 404 B.R. 892, 894 (Bankr. E.D. Wis. 2009).

The Manion Loan Agreement provides that upon default Manion may declare the entire balance due and payable. He has done so. He says that as of January 23, 2017, the balance due was $34,231.55.

The Court finds that Defendant cannot maintain a minimal standard of living if compelled to pay the Manion Loan by its terms when it is now due in full and, as discussed below, not subject to any of the federal student loan repayment programs. Neither can Modeen maintain a minimal standard of living if compelled to resume monthly payments of $694.47. Defendant's expenses are $3,010.29 per month, not including payment on the student loan. Her net income is $3,010.29, including a child support payment that will stop within a year. She can barely cover her living expenses. While some reductions in expenses may be possible, they would not be enough to pay off the Manion Loan. It would be impossible for her to cover an additional payment in satisfaction of the Manion Loan.

2. Additional, Exceptional Circumstances

The second prong requires Plaintiff to show she is presently unable to repay the debt and that there are "additional, *303exceptional circumstances" making it improbable she will ever be able to pay. Roberson , 999 F.2d at 1136. This requirement "properly recognizes the potential continuing benefit of an education, and imputes to the meaning of 'undue hardship' a requirement that the debtor show [her] dire financial condition is likely to exist for a significant portion of the repayment period." Id. at 1135. Modeen must show there is a "certainty of hopelessness" in that she will not be able to fulfill her commitment at any point. Id. at 1136. Bankruptcy courts have interpreted this to require "additional circumstances which make it reasonably certain that the debtor's circumstances are unlikely to improve." Nelsen , 404 B.R. at 894-95 (quoting Hoskins v. Educ. Credit Mgmt. Corp. (In re Hoskins ), 292 B.R. 883, 887 (Bankr. C.D. Ill. 2003) ).

In earlier cases, the Seventh Circuit set the bar of the second prong high. In Roberson , the court listed the factors it believed showed a debtor would lack the ability to repay. Roberson , 999 F.2d at 1137 ; see also Goulet , 284 F.3d at 778. Such factors included psychiatric problems, lack of usable job skills, and severely limited education. Goulet , 284 F.3d at 778. In Goulet , a convicted felon with alcohol and substance abuse problems did not establish "additional, exceptional circumstances" necessary to satisfy this prong. Instead, he was "an intelligent man" who did not lack usable job skills and could "apply himself when he desire[d]." Id. at 779. He had "simply failed to diligently pursue employment such that he would be able to alleviate his financial burdens." Id. In Roberson , the debtor had "a bleak forecast for the near future" as he was unemployed, had lost his driver's license after a second drunk driving conviction, and had wrist and back injuries. Roberson , 999 F.2d at 1137. However, those circumstances were only temporary, as his medical condition was not "insurmountable," he would be able to regain his driver's license, and neither the injuries nor the loss of license prevented him from finding employment in the future. Id.

More recently, the Seventh Circuit has relented on this prong. In Krieger , the Court of Appeals reinstated the discharge of a student loan. The debtor was a 53-year-old living in a rural area who had not held a job since 1986. Krieger v. Educ. Credit Mgmt. Corp. , 713 F.3d 882, 884 (7th Cir. 2013). As the Krieger Court put it, "[t]hat's not the sort of background employers are looking for. There is no reason to think that a brighter future is in store."

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
586 B.R. 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manion-v-modeen-in-re-modeen-wiwb-2018.