The courts in the united states must follow a standard that is unified reflects three things: (1) Congress’s intent in placing the “undue difficulty” standard into the evaluation of discharging academic financial obligation, (2) the purpose of the Bankruptcy Code, and (3) the necessity for persistence and fairness within the court system. Research on individual cognition shows that judges bring different impacts, such as for example age, sex, generation, faith, and values together with them into the decision-making process when cons 193 Negowetti, supra note 179, at 722–23. While there are numerous means uniformity and persistence when you look at the standard is possible, this remark takes the positioning that tools of statutory interpretation offer a opportunity for reconceptualizing “undue difficulty” in light for the use within the majority test that is current. By reconceptualizing the typical in a fashion that is in line with making use of the typical throughout other types of federal legislation, my hope is bankruptcy courts will employ a typical that acknowledges the worth in acquiring advanced schooling and provides the same chance of a “fresh begin” from burdensome debt burden to those that pursue degree.
1 Zack Friedman, Have Student Education Loans Caused A Drop In Home Ownership? , F orbes, https: //www. Forbes.com/sites/zackfriedman/2019/01/18/student-loans-home-ownership/8d2596c3d22 (Jan. 18, 2019, 8:32 have always been).
2 Anthony Cilluffo, 5 Factual Statements About Figuratively Speaking, Pew Analysis Center (Aug. 24, 2017), http: //www. Pewresearch.org/fact-tank/2017/08/24/5-facts-about-student-loans/.
3 Danielle Douglas-Gabriel, university expenses increasing quicker than Financial A Washington Post (Oct. 26, 2016), https: //www. Washingtonpost.com/news/grade-point/wp/2016/10/26/college-costs-rising-faster-than-financial-a
4 news release, U.S. Department of Education Releases National scholar Loan FY 2014 Cohort Default speed (Sept. 27, 2017); see additionally William Elliott & Melinda Lewis, Student Debt Results on Financial Well-Being: Research and Policy Implications, 29 J. Econ. Survs. 614, 624 (2015).
5 Robert B. Milligan, placing a finish to Judicial Lawmaking: Abolishing the Undue Hardship Exception for figuratively speaking in Bankruptcy, 34 U.C. Davis L. Rev. 221, 224 (2000).
6 id that is see at 225.
8 11 U.S.C. § 523(a)(8) (2018).
9 Roger Roots, the learning student Loan Debt Crisis: A Lesson in Unintended Consequences, 29 Sw. U. L. Rev. 501, 504 (2000).
12 Daniel A. Austin, The Indentured Generation: Bankruptcy and scholar Loan Debt, 53 Santa Clara L. Rev. 329, 330–31 (2013).
13 Roots, supra note 9, at 512.
14 Austin, supra https://speedyloan.net/installment-loans-hi note 12, at 363.
18 11 U.S.C. § 523(a)(8).
20 Rafael I. Pardo & Michelle R. Lacey, Undue Hardship within the Bankruptcy Courts: An Empirical Assessment regarding the Discharge of Educational Debt, 74 U. Cin. L. Rev. 487, 419–28 (2005).
21 See Johnson v. Pennsylvania Higher Educ. Assistance Agency (In re Johnson), 1979 U.S. Dist. LEXIS 11428 (Bankr. E.D. Pa. June 27, 1979), Brunner v. N.Y. State Higher Educ. Services Corp. (In re Brunner), 46 B.R. 752 (1985), Bryant v. Pennsylvania Higher Educ. Assistance Agency (In re Bryant), 72 B.R. 913 (Bankr. E.D. Pa. 1987), Simons v. Higher Educ. Assistance Discovered. (In re Simons), 119 B.R. 589, 592–93 (Bankr. S.D. Ohio 1990) ( using a totality-of-the-circumstances-approach); see additionally Robert F. Salvin, student education loans, Bankruptcy while the Fresh Start Policy: Must Debtors be Impoverished to Discharge Educational Loans? , 71 Tul. L. Rev. 139, 149 (1996) (saying you will find as numerous tests for undue difficulty as you will find bankruptcy courts).
22 Kevin Lewis, Bankruptcy and figuratively speaking, Congressional Research provider Report 1 (Feb. 22, 2018).
23 Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F. 2d at 396.
24 Barrett v. Educ. Credit Mgmt. Corp. (In re Barrett), 487 F. 3d 353, 358–59 (6th Cir. 2007); Educ. Credit Mgmt. Corp. V. Mosley (In re Mosley), 494 F. 3d 1320, 1324 (11th Cir. 2007).
25 Educ. Credit Mgmt. Corp. V. Buchanan, 276 B.R. 744, 752 (N.D. W. Va. 2002); see Hicks v. Educ. Credit Mgmt. Corp. (In re Hicks), 331 B.R. 18, 30 (Bankr. D. Mass. 2005) (arguing that despite the fact that “both the Tenth and Eleventh Circuits” have purportedly “adopted identical variations regarding the Brunner test, ” “the Brunner test as used because of the Eleventh Circuit will not are the same factors because the Brunner test used by the Tenth Circuit”).
26 Kopf v. U.S. Dep’t of Educ., 245 B.R. 731, 743 (2000) (citing United Student Aid Funds v. Pena (In re Pena), 155 F. 3d 1108, 1111 (9th Cir. 1998)) (“garden variety” hardship not enough); legislation v. Educ. Res. Inst. (In re Law), 159 B.R. 287, 291 (Bankr. D.S.D. 1993) (“Despite its discretionary nature, the interpretation of undue difficulty under a totality of this circumstances approach does, nevertheless, consider the existence of unique and extraordinary circumstances, for the truth that payment would simply impose a hardship is insufficient”); Ford v. Tenn. Scholar Assistance Corp. (In re Ford), 151 B.R. 135, 138–40 (M.D. Tenn. 1993) (“describing criteria of difficulty which go beyond “mere monetaray hardship or current economic adversity”); In re Lohman, 79 B.R. 576, 584 (D. Vt. 1987) (debtor’s circumstances needs to be extreme” and“exceptional).
27 Kopf v. U.S. Dep’t of Educ., 245 B.R. At 743 (citing Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F. 2d 395, 396 (“Requiring evidence not just of present failure to pay for but additionally of additional, exemplary circumstances, strongly suggestive of continuing failure to settle over a protracted time period, more reliably guarantees that the difficulty presented is ‘undue. ’”); accord Barrows v. Ill. Pupil Assistance Comm’n (In re Bush Barrows), 182 B.R. 640, 648 (Bankr. D.N.H. 1994); see also Dresser v. Univ. Of me personally. (In re Dresser), 33 B.R. 63, 65 (Bankr. D. Me personally. 1983) (debtor must show that for the future that is foreseeable will be impossible for him to come up with sufficient earnings to “pay down” the mortgage and continue maintaining their home “above the poverty level”).
28 Kopf v. U.S. Dep’t of Educ., 245 B.R. At 743 (citing Wetzel v. New York State Higher Educ. Servs. Corp. (In re Wetzel), 213 B.R. 220, 225 (Bankr. N.D.N.Y. 1996) (“There should be a fantastic situation by having a certainty of hopelessness as to your chance for payment for the future that is indefinite. Mere inconvenience, austere spending plan, financial trouble and insufficient current work aren’t grounds for discharging academic debts for undue difficulty”); In re Mathews, 166 B.R. At 943, 945 (Bankr. D. Kan. 1994) (simply by using “undue” as a modifier, Congress “meant that ordinary ‘garden variety’ hardship wouldn’t normally suffice, ” the debtor “must show that the blend associated with low earnings and excellent circumstances is really so serious and oppressive that there surely is not a way that the debtor is ever going to have the ability to repay your debt and continue maintaining a small standard of living”); In re Rappaport, 16 B.R. 615, 617 (Bankr. D.N.J. ) (needing “total incapacity now plus in the long run to pay for one’s debts for reasons maybe perhaps not in the control of the patient debtor”). See additionally Pa. Greater Educ. Assistance Agency v. Faish (In re Faish), 72 F. 3d 298, 305–06 (third Cir. 1995) (debtor eligible to reside in something a lot more than “abject poverty, ” must show “she cannot keep a standard that is minimal of if forced to settle her loans” which can be a showing of something significantly more than “tight finances”)).
29 Kopf v. U.S. Dep’t of Educ., 245 B.R. At 744 (citing Peel v. Salliemae Servicing-Heal Loan (In re Peel), 240 B.R. 387, 394–95 (1999)); Salinas v. United Student Aid Funds, Inc. (In re Salinas), 240 B.R. 305, 313 (lamenting that too many courts “discuss ‘undue hardship’ in the many stringent of terms, concentrating maybe not upon if the debtor possesses an ‘adequate’ earnings but instead if the debtor is scraping by on a ‘minimal’ quality lifestyle); see additionally Doherty v. United States Aid Funds, Inc. (In re Doherty), 219 B.R. 665, 671 (Bankr. W.D.N.Y. 1998) (arguing that In re Brunner will not need a “certainty of hopelessness” standard, basing its choosing on “the many likely near-future for a debtor”).
30 Robert C. Cloud & Richard Fossey, Facing the pupil Debt Crisis: Restoring the Integrity regarding the Federal scholar Loan Program, 40 J. C. & U. L. 467, 496 (2014).
