Zibura v. Academic Financial Services Ass'n (In Re Zibura)

128 B.R. 129, 1991 Bankr. LEXIS 793, 1991 WL 101145
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedMay 29, 1991
Docket14-70081
StatusPublished
Cited by6 cases

This text of 128 B.R. 129 (Zibura v. Academic Financial Services Ass'n (In Re Zibura)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zibura v. Academic Financial Services Ass'n (In Re Zibura), 128 B.R. 129, 1991 Bankr. LEXIS 793, 1991 WL 101145 (Pa. 1991).

Opinion

MEMORANDUM OPINION

BERNARD MARKOVITZ, Bankruptcy Judge.

Debtor Joseph E. Zibura has brought the above-captioned adversary action seeking determination that two (2) education loans are dischargeable pursuant to 11 U.S.C. § 523(a)(8). He maintains that excepting the two loans from discharge would impose an undue hardship upon him and his family-

The Court finds, in accordance with the reasoning set forth below, that the two debts at issue are not dischargeable.

I

FACTUAL BACKGROUND

Debtors Joseph E. Zibura and Susan E. Zibura, husband and wife, filed a voluntary Chapter 7 petition on July 11, 1990. A total of $19,461.19 in debt, all of it unsecured, was listed by debtors. They listed an education loan in the amount of $1,110.00 from defendant Academic Financial Services Association; an education loan in the amount of $7,500.00 from defendant USSCO Johnstown FCU; various open charge accounts totaling $8,661.19; and a personal loan in the amount of $2,200.00 from Catherine Stupi for the purchase of an automobile. Debtors also listed a total of $5,471.49 in personal property, all of which was claimed as exempt. The Chapter 7 trustee filed a report of no assets in the case on September 12, 1990.

Mr. Zibura is the sole source of support for the family. Mrs. Zibura has chosen not to be employed. Debtors have three (3) children, all of whom attend school during the day. Mr. Zibura is also the father of another child, and contributes $150.00 per month in child support pursuant to a court order.

Mr. Zibura previously had been employed at United States Steel Corporation in *131 Johnstown, Pennsylvania, until he was permanently laid off in August of 1981. He collected unemployment compensation for approximately two (2) years and then received public assistance benefits for himself and his family until 1989.

Mr. Zibura underwent various types of training in order to find gainful employment. He graduated from barber school in 1985 but determined not to find work as a barber. He then took course work to be a nurse’s aide in 1986 but again determined not to find employment as a nurse’s aide.

In 1986, Mr. Zibura undertook a course of study in occupational therapy at Mt. Aloysius Junior College. It was during this time that debtor incurred the two debts at issue to complete his course of study. Mr. Zibura graduated in May of 1988 as an occupational therapy assistant. He then completed various internships after graduating and became a licensed occupational therapy assistant.

In November of 1989, debtor obtained employment as a licensed occupational therapy assistant at City-County Clinic in Johnstown, Pennsylvania.

On September 17, 1990, Mr. Zibura obtained his present employment as a licensed occupational therapy assistant at Warren State Hospital in Warren, Pennsylvania. Because Warren State Hospital is approximately 150 miles from the family residence in Beaverdale, Pennsylvania, Mr. Zibura maintains a second residence for himself in Warren, Pennsylvania. He communicates with his family by telephone virtually every day and returns to Beaverdale every weekend to be with the family.

Mr. Zibura’s gross monthly salary from his job, as of March 15, 1991, was $1,514.93. He advises that his net monthly income, which includes $120.00 in food stamps, is $1,187.41.

Debtor’s monthly expenses, which total $1,388.00, contain the obvious necessities, but also include a stipend for two residences, a $60.00 per month telephone bill, cable TV, $150.00 per month transportation expense, and $50.00 per month for books, magazines and recreation. In addition, debtors pay close relatives $40.00 per month in relocation expenses. Were debtors to offer to pay defendant a sum comparable to any of the above as a payment on the debt in question, the court is led to believe said payment would be acceptable.

II

ANALYSIS

Debtor seeks to have the indebtedness arising out of his student loans held dis-chargeable under the exception set forth at 11 U.S.C. § 523(a)(8)(B), which provides in pertinent part 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—
(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 unit or a nonprofit institution, unless—
(B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents.

When it is the debtor bringing a complaint to determine dischargeability under the “undue hardship” exception, the burden of proof is split between the parties as to issues. Matter of Coleman, 98 B.R. 443, 446 (Bankr.S.D.Ind.1989).

The creditor has the initial burden of proving the existence of the debt; that it is owed to or insured or guaranteed by a governmental agency or non-profit institution of higher education; and that it first became due less than five (5) years prior to the date the bankruptcy petition was filed. Matter of Coleman, 98 B.R. at 447 (citing In re Norman, 25 B.R. 545, 548 (Bankr.S.D.Cal.1982)).

The burden of proof as to “undue hardship” is on the debtor. Binder v. U.S. Dept. of Education, 54 B.R. 736, 739 (Bankr.D.N.D.1985). This is so because a claim of undue hardship is in the nature of an affirmative defense or an exception to *132 the exception of such a debt from discharge. Matter of Coleman, 98 B.R. at 447.

Mr. Zibura does not now dispute that he owes debts which were guaranteed by governmental agencies and which became due less than five (5) years prior to the date on which he filed his Chapter 7 petition. Consequently, the burden is upon debtor to prove “undue hardship” if he is to prevail in this action.

“Undue hardship” is not defined in the Code. It is a term of art to be interpreted in the discretion and judgment of the court. Whether undue hardship would occur is a question of fact which is to be determined on the basis of the particular circumstances of each case. Andrews v. South Dakota Student Loan Assistance Corp. (In re Andrews), 661 F.2d 702, 704 (8th Cir.1981).

The fact that a debtor’s budget may be tight for the foreseeable future is the norm rather than the exception when one files for bankruptcy. U.S. v. Collier (In re Collier), 8 B.R. 909, 911 (Bankr.S.D.Ohio 1982). Undue hardship is not established by proof that repayment of a student loan would merely bring about unpleasantness or garden variety hardship. Lezer v. New York State Higher Education Services Corp. (In re Lezer), 21 B.R. 783, 787 (Bankr.S.D.N.Y.1982).

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Bluebook (online)
128 B.R. 129, 1991 Bankr. LEXIS 793, 1991 WL 101145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zibura-v-academic-financial-services-assn-in-re-zibura-pawb-1991.