Uterhark v. Great Lakes Higher Education Corp. (In Re Uterhark)

185 B.R. 39, 34 Collier Bankr. Cas. 2d 51, 1995 Bankr. LEXIS 1042, 1995 WL 456023
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedJuly 27, 1995
Docket19-30064
StatusPublished
Cited by4 cases

This text of 185 B.R. 39 (Uterhark v. Great Lakes Higher Education Corp. (In Re Uterhark)) 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
Uterhark v. Great Lakes Higher Education Corp. (In Re Uterhark), 185 B.R. 39, 34 Collier Bankr. Cas. 2d 51, 1995 Bankr. LEXIS 1042, 1995 WL 456023 (Ohio 1995).

Opinion

MEMORANDUM OF OPINION

DAVID F. SNOW, Bankruptcy Judge.

Plaintiff filed this adversary proceeding to determine dischargeability of loans which were used to finance his son’s college education. He acknowledges that educational loans are generally nondischargeable under section 523(a)(8) but asserts that this exception to discharge is not applicable in this case for two reasons — first, because the exception to discharge is limited to students who receive educational benefits from the loans and, second, because repayment of the loans would impose undue hardship on him. Plaintiffs first argument stands or falls on the basis of statutory construction and involves no disputed factual issues. Plaintiff filed his motion for summary judgment in the hope that resolution of this issue would result in the determination that the loan is discharge-able. But for the reasons set forth below plaintiffs motion for summary judgment must be denied.

Background

Plaintiff, Gary M. Uterhark (“Uterhark”) obtained two loans totaling $8,000 from National City Bank (“National City”) to finance his son Christopher’s college education. Uterhark signed a promissory note for $4,000 on August 5, 1991, and signed a second note for an additional $4,000 on August 28, 1992. Christopher is not obligated under either note. After the loans were made, National City assigned all of its rights to defendant, Great Lakes Higher Education Corporation (“Great Lakes”). Uterhark made four payments totaling $416.16 before defaulting on the loans, which had become due and payable in June 1993. He filed his chapter 7 petition on March 18, 1994.

Analysis

11 U.S.C. section 523 provides that:

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
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(8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless—
(A) such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition; or
(B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents.

The loans were obtained under the PLUS program. PLUS loans are authorized by Title 4, Part B of the Higher Education Act of 1965 (codified as amended at 20 U.S.C. 1078-2). The PLUS program was enacted to encourage parents to bear a share of a student’s undergraduate educational costs, In re Reid, 39 B.R. 24, 25-26 (Bankr.E.D.Tenn.1984) (citations omitted). Loans made under the PLUS program are unusual, if not unique, in imposing sole liability for repayment of the loan on the parent. Uterhark concedes that PLUS loans are “made, insured or guaranteed by a governmental unit” but argues that section 523(a)(8) should be limited to student borrowers and should not apply to him since he received no educational benefit from the loans.

There is nothing in the language of section 523(a)(8) which limits its application to the recipient of educational benefits as opposed to others liable on educational loans. Section 523(a)(8) is expressed in technical legal language which the drafters obviously intended to be as precise as possible. Two exceptions to nondischargeability are carefully delineated in subsections (A) and (B). In view of this care and precision, it appears unlikely that the drafters intended to exclude parent-borrowers from section 523(a)(8) but failed to say so. Nevertheless, a number of courts have accepted the argument that section *41 523(a)(8) was directed at students and not at parents, at least in the context of loans where both the student and the parent or other co-signor are liable. In re Kirkish, 144 B.R. 367 (Bankr.W.D.Mich.1992); In re Behr, 80 B.R. 124 (Bankr.N.D.Iowa 1987); In re Meier, 85 B.R. 805 (Bankr.W.D.Wis.1986); In re Zobel, 80 B.R. 950 (Bankr.N.D.Iowa 1986); In re Bawden, 55 B.R. 459 (Bankr.M.D.Ala.1985); In re Washington, 41 B.R. 211 (E.D.Va.1984); In re Boylen, 29 B.R. 924 (Bankr.N.D.Ohio 1983) (all holding such debt dischargeable as to eo-signor). But the majority of eases, including the one Circuit case that has considered the issue, have held that the parent’s liability is nondischargeable under section 523(a)(8) even where the student who actually receives the education is liable on the loan. In re Pelkowski, 990 F.2d 737 (3d Cir.1993); In re Garelli, 162 B.R. 552 (Bankr.D.Or.1994); In re Palmer, 153 B.R. 888 (Bankr.D.S.D.1993); In re Wilcon, 143 B.R. 4 (D.Mass.1992); In re Varma, 149 B.R. 817 (N.D.Tex.1992); In re Dull, 144 B.R. 370 (Bankr.N.D.Ohio 1992); In re Hawkins, 139 B.R. 651 (Bankr.N.D.Ohio 1991); In re Martin, 119 B.R. 259 (Bankr.E.D.Okla.1990); In re Hudak, 113 B.R. 923 (Bankr.W.D.Pa.1990); In re Taylor, 95 B.R. 550 (Bankr.E.D.Tenn.1989); In re Hammarstrom, 95 B.R. 160 (Bankr.N.D.Cal.1989); In re Barth, 86 B.R. 146 (Bankr.W.D.Wis.1988); In re Feenstra, 51 B.R. 107 (Bankr.W.D.N.Y.1985).

No reported case appears to have held that section 523(a)(8) does not apply to an educational loan where, as here, only the parent is liable. See Pelkowski, 990 F.2d 737; Garelli 162 B.R. 552; Wilcon, 143 B.R. 4; Varma, 149 B.R. 817; Hawkins, 139 B.R. 651; Martin, 119 B.R. 259; Hudak, 113 B.R. 923; Hammarstrom, 95 B.R. 160; Feenstra, 51 B.R. 107. Therefore, Uterhark is requesting that the Court break new ground. Uter-hark’s support for this request is a statement made by a sponsor of section 523(a)(8) when it was enacted as part of the Bankruptcy Reform Act of 1978. 1 This statement criticizes what the sponsor felt was the fraudulent use of the Bankruptcy Courts by debtors who

... not having assets to pledge [as security for educational loans, are pledging their] future earning power. Having pledged that future earning power, if, shortly after graduation and before having an opportunity to get assets to repay the debt, [they] seek to discharge that obligation, I say that is tantamount to fraud.

124 Cong.Rec.

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185 B.R. 39, 34 Collier Bankr. Cas. 2d 51, 1995 Bankr. LEXIS 1042, 1995 WL 456023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/uterhark-v-great-lakes-higher-education-corp-in-re-uterhark-ohnb-1995.