Wells v. Sallie Mae (Wells)

380 B.R. 652, 2007 Bankr. LEXIS 3605, 2007 WL 3047107
CourtUnited States Bankruptcy Court, N.D. New York
DecidedOctober 18, 2007
Docket14-11814
StatusPublished
Cited by10 cases

This text of 380 B.R. 652 (Wells v. Sallie Mae (Wells)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells v. Sallie Mae (Wells), 380 B.R. 652, 2007 Bankr. LEXIS 3605, 2007 WL 3047107 (N.Y. 2007).

Opinion

MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

STEPHEN D. GERLING, Chief Judge.

Before this Court is an adversary proceeding commenced on July 6, 2006, by Larry W. Wells (“Debtor”) by the filing of a complaint against Educational Credit Management Corporation (“ECMC”), as assignee of New York State Higher Education Services Corporation and/or Sallie Mae, 1 seeking a discharge of student loans made to the Debtor pursuant to § 523(a)(8) of the Bankruptcy Code, 11 U.S.C. §§ 101-1532 (“Code”). Issue was joined by the filing of an answer on behalf of ECMC on July 19, 2006. On November 2, 2006, the Debtor filed an Amended Complaint to which an Answer was filed on behalf of ECMC on November 6, 2006.

A trial was held in Utica, New York, on July 16, 2007. 2 Following the trial, the Court reserved its decision and granted both parties the opportunity to file memo-randa of law in lieu of closing arguments. The matter was taken under submission on August 13, 2007.

JURISDICTIONAL STATEMENT

The Court has core jurisdiction over the parties and subject matter of this adversary proceeding pursuant to 28 U.S.C. §§ 1134(b), 157(a), (b)(1), and (b)(2)(I).

FACTS

The Debtor filed a voluntary petition (“Petition”) seeking relief pursuant to chapter 7 of the Code on October 7, 2005. In his schedules, the Debtor lists an obligation to Sallie Mae in the amount of $73,749. See Schedule F, attached to *655 Debtor’s Exhibit 3. As of July 1, 2007, the balance on the student loans amounted to $80,827.70. See ECMC’s Exhibit M at ¶ 13.

At the time of the trial, Debtor was fifty-three years of age and married to Penny Wells. 3 The Debtor testified that in 1999 he borrowed $10,000 from Sallie Mae to finance his son’s college education at the State University of New York at Alfred. 4 According to the Debtor, because his son was living with his parents, he was not eligible for an independent student loan. A second loan in the amount of $2,000 was made to the Debtor to cover the costs of a computer for his son. According to the Debtor, he began making payments on what he assumed was a consolidated loan of $12,000. He later discovered that the payments had been applied only to the $2,000 loan and that the $10,000 had been deferred.

The Debtor testified that after one year at the State University of New York at Alfred, his son transferred to Rochester Institute of Technology, and the Debtor borrowed additional monies on his son’s behalf. According to the Debtor, he was making payments on both the $2,000 loan and the latter loan. At the time, he was working for Anchor Glass Container Corporation (“Anchor Glass”) as a forklift operator, and his wife was working at Bob’s Honda as a title clerk/secretary. 5 In answer to interrogatories, the Debtor indicated that he made payments on the loans between January 19, 2001 and February 27, 2004. See ECMC’s Exhibit J, Response to Interrogatory No. 13.

According to his wife’s testimony, at the time that the original loan was taken out, she had been working for the U.S. Postal Service and as a substitute teacher. She testified that she had obtained a bachelor’s degree in elementary education in 1992 at the age of 32 but that her teaching certification had lapsed in 2003. According to her testimony, she had applied for a job as a postmaster and is also on a list for a clerk’s position should one become available at the local post office. She had also applied for a position with Head Start and with the local school district to be a teacher. She testified that she had also applied to be a teacher in school districts located in Tennessee and Georgia where she has relatives. Currently, she works less than 10 hours per week as a relief postmaster. She is guaranteed only four hours per week. She also works for Liberty Research, Inc. doing cleaning at a couple of local offices for approximately 5-13 hours every two weeks.

According to their Federal tax returns for 2003 and 2004, their combined gross *656 income totaled $52,384 and $57,204, respectively. See Debtor’s Exhibits 4 and 5. In December 2004 the Debtor’s spouse lost her full-time job at Bob’s Honda. On or about December 8, 2004, the Debtor signed a Federal Consolidation Loan Application and Promissory Note. See Debt- or’s Exhibit 1. At the time of consolidation, the amount financed totaled $51,818.10, including unpaid principal and capitalized interest. See Debtor’s Exhibit 2. The Debt- or explained that in December 2004 he was forced to give up the swing shift at Anchor Glass because he had been having problems falling asleep while driving to and from work. This resulted in an annual decrease in his income of $7,000. Then in March 2005 the Debtor ruptured a blood vessel in his spinal cord while at work, which left him temporarily paralyzed. Although his payments were to have begun on March 22, 2005 on the consolidated loan, in response to Interrogatory No. 2, the Debtor indicated that he made a telephone request and was granted a year’s forbearance. See ECMC’s Exhibit J. However, according to the Debtor, he had no paperwork to substantiate the forbearance. Id. On cross-examination he acknowledged that he had made no payments on the consolidated loan whatsoever despite having been granted the alleged deferment.

According to the Debtor, although he was to have been out of work for a year, he opted to return in September 2005 after only six months because Anchor Glass had filed for bankruptcy relief and there were rumors that the company was going to be sold. In November 2005 he fell and broke his ankle and was out of work until January 2006. He testified that he still experiences some weakness in one of his legs and is unable to sit for any length of time. He alleges that he is also blind in one eye.

According to their Federal tax returns for 2005 and 2006, their combined gross income totaled $30,241 and $37,871, respectively. See Debtor’s Exhibits 6 and 7. In addition, the Debtor received $4,653 in unemployment compensation in 2005. See Debtor’s Exhibit 6. Debtor’s weekly gross income is $753.04 and net income is $544.55 after deductions, including union dues, 401k contribution and insurance premiums. See Debtor’s Exhibit 10. He testified that he is unable to request overtime, but that in some instances it does become available and is assigned based on seniority. When asked on cross-examination about seeking other employment, the Debtor responded that his health prevented him from working a second job. He also testified that he had not sought out other positions with his current employer.

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380 B.R. 652, 2007 Bankr. LEXIS 3605, 2007 WL 3047107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-sallie-mae-wells-nynb-2007.