Nightingale v. North Carolina State Education Assistance Authority (In re Nightingale)

548 B.R. 431
United States Bankruptcy Court, M.D. North Carolina·Decided April 14, 2016·No. Case No. 13-10834; Adversary No. 13-02060·Published·Cited by 1 cases

Opinion

MEMORANDUM OPINION REGARDING JUDGMENT DISCHARGING DEBT

BENJAMIN A. KAHN, UNITED STATES BANKRUPTCY JUDGE

This adversary proceeding came before the Court for further trial and reopening of the evidence pursuant to the Court’s Order and Notice of Trial Hearing [Doc. #51] (the “Order and Notice of Trial Hearing”). The case initially came on for trial on October 21, 2015. Following the trial, the Court entered an Order and Memorandum of Opinion and an Order and Notice of Trial Hearing [Doc. #46, 51] (together, “Orders to Reopen the Evidence”), determining that it was appropriate to reopen the trial for the sole purpose of allowing the Plaintiff to offer corroborative evidence as to her medical conditions about which she testified at trial, and giving the Defendant the opportunity to examine any witnesses or to present any rebuttal evidence related to such corroborative evidence. The Defendant filed a limited objection to the Court’s Order to Reopen the Evidence [Doc. # 49] (the “Defendant’s Objection”), and the Plaintiff filed a Response to the Objection and Order to Reopen the Evidence [Doc. #50] (the “Plaintiff’s Response”).

Having considered the Defendant’s Objection and the Plaintiffs Response, the Court entered an Order and Notice of Trial Hearing, allowing thirty (30) days for the Plaintiff to submit to the Defendant any additional evidence to be offered and providing the Defendant fourteen (14) days [433]*433within which to object to or otherwise respond to Plaintiffs additional evidence. With no objections having been filed, the Court reopened the evidence and scheduled a further trial for April 7, 2016.

At the April 7th trial, Phillip E. Bolton appeared on behalf of the Plaintiff, and Brent D. Kiziah appeared on behalf of the Defendant. The Plaintiff offered four documents relating to her medical treatment since approximately 2008, tending to corroborate the Plaintiffs previous extensive testimony. These documents were marked Exhibits 1 through 4, and the Court admitted the documents into evidence without objection. Plaintiffs Exhibit 2 is a Medical Report for Disability Eligibility Review of the Plaintiff performed by Dr. Elizabeth A. Wanek on May 7, 2012. Plaintiffs Exhibit 3 is a letter dated August 15, 2013, from Dr. Michael T. Gross to the Plaintiffs attorney, acknowledging Dr. Gross was treating the Plaintiff and briefly describing the care provided. Plaintiffs Exhibit 4 is a letter from Dr. Wanek to Plaintiffs attorney dated March 30, 2014, documenting the then current medical status of the Plaintiff concerning the illnesses for which Dr. Wanek had been providing ongoing treatment to the Plaintiff. Plaintiffs Exhibit 1 is a Patient Medical Report printed on February 26, 2016, from the office of Dr. Wanek listing the prescriptions which Dr. Wanek has prescribed for the Plaintiff from July 7, 2008, through November 8, 2015. The Plaintiff also provided additional testimony concerning her past and current health status.

FINDINGS OF FACT

The Court incorporates herein the findings of fact made in its Order and Memorandum Opinion [Doc. #46], which, together with this Memorandum Opinion, shall constitute the Court’s findings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding by Bankruptcy Rule 7052. Having considered all evidence presented at trial, the Court makes the following additional findings of fact.

At the inception of this trial, Alice Nightingale was 67 years old. She has been diagnosed with, and has been receiving treatment for, intractable pain in both feet since prior to 2013. The Plaintiffs intractable foot pain limits her ability to walk and stand, causing a debilitating effect on her quality of life. As of the date of the hearing, the Plaintiffs pain has not subsided, and she now must walk with a cane.

The Plaintiff has a history of obstructive sleep apnea, hypothyroidism, and fatigue, and she continues to suffer from these issues, which have only gotten worse over the course of this bankruptcy case since 2012. The Plaintiff was determined to be completely disabled in 2012 by competent medical diagnosis, and she was granted full disability by the ¡Guilford County School Board as a result of this evaluation. The Plaintiffs evaluation for disability eligibility review in 2012 demonstrates that her conditions prevented her from having the strength, energy, endurance, and cognitive ability to be able to perform work.

By March 30, 2014, the Plaintiffs chronic fatigue, obstructive sleep apnea, and hypothyroidism, for which she was previously found to be eligible for total disability from her teaching job, made it hard to manage the activities of daily living, much less engage in productive employment. Although by 2014 she had made some progress from her initial diagnosis, even after two years of treatment by various caregivers, she did not have the energy, the strength, or the stamina to manage material employment.

[434]*434As of November, 2015, the Plaintiff still is receiving and taking prescription medications from Dr. Wanek, whom she last visited for treatment in October, 2015. The Plaintiff continues to suffer from sleep apnea, chronic fatigue, and hypothyroidism. These ailments combine to significantly limit her cognitive and physical abilities. After two years of treatment, the symptoms have not improved and the Plaintiff is still unable to manage any kind of employment. With the unrebutted record and evidence of the Plaintiffs disabilities in this case now spanning over eight years since 2008, it is unlikely that the Plaintiffs health will materially improve with respect to her capacity for employment.

Through her testimony and the Court’s ability to observe the Plaintiff, she exhibited significantly diminished ability to concentrate and keep thoughts without confusion. She struggled to keep focus while answering questions and appeared to be significantly tired, speaking slowly and with noticeable difficulty.

ANALYSIS

The sole issue remaining for the Court is whether the Plaintiff met the second prong of the Brunner test, a three prong test created by the Second Circuit, which the Fourth Circuit adopted, in order to evaluate whether repaying a student loan will cause undue hardship on a debt- or, pursuant to 11 U.S.C. § 523(a)(8). See Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir.1987); Educ. Credit Mgmt. Corp. v. Frushour (In re Frushour), 433 F.3d 393, 398 (4th Cir.2005). The second prong of the Brunner test requires the debtor to show. by a preponderance of the evidence the presence of “additional, exceptional circumstances, strongly suggestive of continuing inability to repay [the debt] over an extended period of time,” which demonstrates that the Plaintiffs present hardship was “undue.” Brunner, 831 F.2d at 396. The determination of the second prong is performed on a case-by-case basis, and there are no required or dispositive circumstances. In re Frushour,

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Nightingale v. North Carolina State Education Assistance Authority (In re Nightingale), 548 B.R. 431 (N.C. 2016).

548 B.R. 431 (Nightingale v. North Carolina State Education Assistance Authority (In re Nightingale)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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