Shells v. United States Department of Education (In re Shells)

530 B.R. 758
CourtUnited States Bankruptcy Court, E.D. California
DecidedMay 7, 2015
DocketCase No. 11-26042-B-7; Adversary No. 14-2111
StatusPublished
Cited by1 cases

This text of 530 B.R. 758 (Shells v. United States Department of Education (In re Shells)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shells v. United States Department of Education (In re Shells), 530 B.R. 758 (Cal. 2015).

Opinion

MEMORANDUM DECISION ON MOTION FOR SUMMARY JUDGMENT

Christopher D. Jaime, UNITED STATES BANKRUPTCY JUDGE

INTRODUCTION

The defendant, the United States acting on behalf of its agency — the United States Department of Education, seeks summary judgment on plaintiff Tangerie Shells’ 11 U.S.C. § 523(a)(8) claim seeking to discharge a student loan. Plaintiff has filed a response to the motion for summary judgment.

Plaintiff is a 47 year-old social worker. She has a bachelor’s and a master’s degree in social work which .she financed with’ the subject student loan. Plaintiff filed a chapter 7 bankruptcy on March 11, 2011. She received a discharge on June 27, 2011. Plaintiffs student loan was not discharged under § 523(a)(8). Plaintiff reopened her chapter 7 case on April 8, 2014. She filed this adversary proceeding on April 24, 2014.

Because the material facts are not in dispute and because under those undisputed facts plaintiff cannot establish an “undue hardship” as a matter of law, the defendant’s motion for summary judgment will be granted.

STATEMENT OF FACTS

The subject of this- action is a student loan that plaintiff used to finance her education and obtain a bachelor’s and master’s degree in social work. In March of 2007, plaintiff consolidated private loans into one new $96,205.59 loan at 7.375 percent, from the United States Department of Education. Plaintiffs student loan has now grown to $137,545.82. The loan continues to accrue interest at 7.375 percent ($25.72) per day.

Plaintiff requested and received an Income Contingent Repayment (“ICR”) plan with an initial monthly payment of $772.33 beginning in December of 2008. The ICR payment plan required plaintiff to make loan payments based upon her income, family size, and total amount borrowed for a period of 25 years at which point any remaining balance would be forgiven. Plaintiff defaulted on her first payment, obtained a series of forbearances, and defaulted again.

Plaintiff made.no payments between December 2008 and March, of 2011. Plaintiff filed a chapter 7 bankruptcy on March 11, 2011. Plaintiff also made no student loan payments between March 11, 2011, to the time she received a discharge on June 27, 2011. .It was not until March 13, 2013, that plaintiff requested and received an Income Based Repayment (“IBR”) plan. The IBR plan required plaintiff to make loan payments based solely upon her income over 25 years at which time the balance of the loan would be forgiven. Plaintiffs initial monthly payment was either $316.62 or $321, but the difference is not material. Plaintiff made four payments totaling $1,266.48. She then stopped paying and defaulted again.

Plaintiff is married with three children. Her husband is disabled. Plaintiff is employed full-time by the County of Sacramento, Children’s Protective Services, and [762]*762has been since April 20, 1998. After taxes, plaintiff reports net monthly income of $5,902 — or $70,824 annually. She receives retirement and health benefits from her employer. As a county employee, plaintiff may also be eligible for a public service loan forgiveness program which would result in the forgiveness of her student loan in 10 years with no tax consequences.

Plaintiff reports monthly expenses of $5,861. Of those, the court takes special note of the following: a car payment of $568, cable/tv of $140, cell phone of $240, a children’s savings deposit of $50, “meals out” of $175, “entertainment” of $150, and “vacation” of $121. Together these monthly expenses total $1,444 and equal approximately 25 percent of plaintiffs reported monthly expenses. The reported monthly expenses for “children’s savings,” “meals out,” “entertainment,” and “vacation” alone total $496.

JURISDICTION, VENUE, AND NOTICE

Federal subject-matter jurisdiction is founded on 28 U.S.C. § 1384. This matter is a core proceeding that a bankruptcy judge may hear and determine. 28 U.S.C. § 157(b)(2)(A), (I), and (O). To the extent it may ever be determined to be a matter that a bankruptcy judge may not hear and determine without consent, the parties nevertheless consent to such determination by a bankruptcy judge. 28 U.S.C. § 157(c)(2). Venue is proper under 28 U.S.C. § 1409.

Notice of the motion and the hearing on the motion was given to required parties. Plaintiff responded on May 4, 2015. The matter was heard on May 5, 2015. Jeffrey J. Lodge, Esq., appeared telephonieally for the defendant. Plaintiff did not appear.

APPLICABLE LEGAL STANDARD

Federal Rule of Civil Procedure 56; made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7056, provides that summary judgment is appropriate if documents, depositions, answers to interrogatories, admissions on file, and declarations, if any, show that there is “no genuine issue of fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All reasonable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).

“The initial burden of showing the absence of a material factual issue is on the moving party. Once that burden is met, the opposing party must present specific facts, and not allegations, to show that a genuine factual issue remains for trial.” DeHorney v. Bank of America N.T. & S.A., 879 F.2d 459, 464 (9th Cir.1989); see also Celotex, 477 U.S. at 324-325, 106 S.Ct. 2548. Additionally, when the moving party does not bear the burden of proof of trial it may discharge its summary judgment burden of showing no genuine issue of material fact remains by demonstrating “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Summary judgment is appropriate if the nonmoving party fails to make a sufficient showing of an element of its case with respect to which it has the burden of proof. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir.2000).

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530 B.R. 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shells-v-united-states-department-of-education-in-re-shells-caeb-2015.