Smith v. New York State Higher Education Services Corp. (In re Smith)

45 B.R. 711, 1985 Bankr. LEXIS 6910
CourtDistrict Court, D. New York
DecidedJanuary 15, 1985
DocketBankruptcy Nos. 83-20173, 83-2146A
StatusPublished
Cited by1 cases

This text of 45 B.R. 711 (Smith v. New York State Higher Education Services Corp. (In re Smith)) is published on Counsel Stack Legal Research, covering District Court, D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. New York State Higher Education Services Corp. (In re Smith), 45 B.R. 711, 1985 Bankr. LEXIS 6910 (nyd 1985).

Opinion

MEMORANDUM AND DECISION

EDWARD D. HAYES, Bankruptcy Judge.

The debtor filed a complaint to have a student loan debt declared dischargeable as an undue hardship under § 523(a)(8)(B). The New York State Higher Education Services Corporation (NYSHESC) answered that the repayment of the student loan would not be an undue hardship. At a pretrial hearing, the parties stipulated that the only issue to be decided was the question of undue hardship. The hearing was held on October 5, 1983.

The facts are as follows. The debtor filed a petition in bankruptcy under Chapter 7 on February 25, 1983. On July 11, 1983, the debtor filed a complaint requesting that the Court declare his student loan debt dischargeable because of undue hardship. The loan was guaranteed by NYSH-ESC which purchased the loan from Marine Midland Bank upon the debtor’s default. The amount owing on the loan is $8,750 plus interest.

Mr. Smith studied psychology while he was able to attend college. In 1980, during his second semester, Mr. Smith had to take a medical leave from school. Since then he has been going to school as a part-time student. By May of 1983, he had earned enough credits to be classified as having completed one third of his junior year of college. No payments have been made on the student loan. NYSHESC filed a claim for $8,750 plus interest.

Peter J. Smith, the debtor, is twenty-six years old and has three dependents; a wife and two children. The older child is from a previous marriage and the younger child is a newborn baby. Smith receives no support payments from his former wife for the older child. The four Smiths live in a small rented two bedroom trailer in Mayo Trailer Park in Newark, New York. In order to make enough room for the baby’s crib in their bedroom, Mr. and Mrs. Smith got rid [713]*713of their full size bed and must now sleep in a twin bed. Additionally, the closets and dressers were removed from the bedroom. The trailer is sparsely furnished. There are no couches or chairs in the trailer, except for one rocking chair in the living room.

Prior to filing bankruptcy, Mr. Smith drove a 1973 Volkswagon bus and a 1977 Kowasaki motorcycle. After filing his petition, Marine Midland Bank obtained an Order of Abandonment and subsequently repossessed both vehicles. Mr. Smith then purchased a 1973 Ford Gran Torino for $100. The car is in terrible shape and, consequently, costs him more money in monthly maintenance and gasoline than many other cars.

Mr. Smith is 70% disabled and suffers from an active duodenal ulcer, a nerve condition, skin rash and acute hypertension. The ulcer may require surgery in the near future if medication does not correct the problem. He acquired these disabilities during his military service and has been receiving Veteran’s Administration disability pay since 1978. It is currently $625 a month.

Despite his disabilities, Mr. Smith is able to work. He has a job at the Newark Development Center, where he clothes, bathes, and cares for the mentally retarded. His take home pay is $644 a month. With his disability pay, Mr. Smith has a total monthly net income of $1,269.

The family’s monthly expenses are as follows: rent $251.51; utilities $130; food $322.50; clothing $80; medicine $20; automobile maintenance $20; nursery school $30; newborn baby’s food, diapers, medicine, etc. $200; insurance (trailer, auto, and life) $41; laundry $36; gasoline $100; and household supplies $40. These expenses total $1,271.01 a month.

In addition to the fact that the debtor’s monthly expenses exceed his monthly income, Mr. Smith has accumulated additional post-petition debts. According to Mr. Smith’s testimony, the birth of his second child was going to cost $1,000 for the doctor’s pre-natal and post-natal care, plus $1,500 for hospital expenses. Mr. Smith has no savings to cover these expenses. The debtor’s savings account was closed by the bank and there is only five dollars in his checking account.

The debtor’s employment history is as follows. Mr. Smith was in the Army for three years and then worked in the C.E. T.A. (Comprehensive Employment and Training Act) program for three months, but lost his job when the government funding fell through. He then worked at Perkins, a pancake house franchise, for two months before starting college. During the two summers while attending school, he worked at the Newark Development Center in his present capacity. Since June 30, 1983, he has worked at the Newark Development Center on a full time basis.

To improve his financial situation, Mr. Smith has been reading the want ads, visiting unemployment offices, and filling out job applications in search of a better paying job. With his present educational level and lack of special skills, he has been unable to find anything better.

The question presented is whether this student loan debt is dischargeable as an undue hardship pursuant to 11 U.S.C. § 523(a)(8)(B).

11 U.S.C. § 523(a)(8)(B) reads as follows: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (8) for an educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unity or a non-profit institution of higher education, unless—
(B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debt- or’s dependents;

In In re Ford, 22 B.R. 442, 9 B.C.D. 715 (Bankr.W.D.N.Y.1982), this Court set forth the legislative history, ease law definitions, and tests regarding the determination of undue hardship in student loan discharge [714]*714cases. This opinion will only highlight and reaffirm those principles.1

The legislative history to 11 U.S.C. § 523(a)(8) is important because the words undue hardship are not defined by the Bankruptcy Code. As this Court said in Ford, (supra):

It is clear, however, throughout this lengthy history, that Congressional policy focused on excepting the discharge in those inequitable situations where individuals with superior education and employment skills were abusing the relief afforded by the bankruptcy laws. This Court must, therefore, strike a balance between the concerns of Congress for those cases of extreme abuse of student loans and the principles of fresh start and equality associated with bankruptcy relief. 22 B.R. at 445, 9 B.C.D. at 716.

In addition to enforcing the legislative intent, courts have applied three tests to determine whether the facts of a particular case constitute undue hardship. The three tests are:

(i) the mechanical “undue hardship” test (focusing on debtor’s expenses and future financial resources); (ii) the good faith test (factors include debtor’s efforts to obtain employment, minimize expenditures, and maximize resources); and (iii) the underlying policy test (amount of student loan debt, percentage of indebtedness, and benefit from education). In re Clay, 12 B.R. 251, 254 (Bankr.N.D.Iowa 1981) citing In re Johnson, 5 B.C.D. 532, 544-45 (Bankr.E.D.Pa.1979).

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
45 B.R. 711, 1985 Bankr. LEXIS 6910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-new-york-state-higher-education-services-corp-in-re-smith-nyd-1985.