Even if you declare bankruptcy, every court agrees that you will always remain responsible for the payment of your student loans. Fact or Fiction?

FICTION



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2-105 Collier on Bankruptcy-15th Edition Rev. P 105.04


Several courts have used section 105 to delay the finality of an undue hardship determination with respect to nondischargeable student loans.86 Beginning with Cheesman v. Tennessee Student Assistance Corp. (In re Cheesman) ,87 and continuing with Tennessee Student Assistance Corp. v. Hornsby (In re Hornsby) ,88 the Court of Appeals for the Sixth Circuit has held that even after a finding of undue hardship a court may use section 105 to stay the finality of that determination, allowing time to provide more facts with which to determine whether the educational loan is ultimately dischargeable.89

Although this reasoning was rejected by the Court of Appeals for the Eleventh Circuit and other courts,90 the Court of Appeals for the Ninth Circuit followed Cheesman and Hornsby in Saxman v. Educational Credit Management BJR Corp. (In re Saxman) .91 Whereas Cheesman might be read to offer the debtor the benefit of a partial discharge if undue hardship is not present,92 Saxman takes a decidedly different tact: It prohibits a partial discharge via section 105 for anything less than undue hardship, holding that a ''preliminary finding of 'undue hardship' is necessary before a bankruptcy court can exercise its equitable powers in granting a partial discharge of student loan debts.''93


Footnote 86. For a description of the nondischargeability of certain student loans, see P 523.14 infra.

Footnote 87. 25 F.3d 356, 31 C.B.C.2d 140 (6th Cir.), cert. denied, 513 U.S. 1081, 115 S. Ct. 731, 130 L. Ed. 2d 634 (1994).

Footnote 88. 144 F.3d 433 (6th Cir. 1998).

Footnote 89. Cheesman and Hornsby have been followed by lower courts in other circuits. Kapinos v. Graduate Loan Ctr. (In re Kapinos) , 243 B.R. 271, 275 (W.D. Va. 2000); Great Lakes Higher Educ. Corp. v. Brown (In re Brown), 239 B.R. 204 (S.D. Cal. 1999) .

Footnote 90. Hemar Ins. Corp. of Am. v. Cox (In re Cox), 338 F.3d 1238, 1243 (11th Cir. 2003) ; see also United States Dep't of Educ. v. Blair (In re Blair), 301 B.R. 181, 186 (D. Md. 2003) ; Salinas v. United Student Aid Funds, Inc. (In re Salinas), 258 B.R. 913 (Bankr. W.D. Wis. 2001) ; Skaggs v. Great Lakes Higher Educ. Corp. (In re Skaggs), 196 B.R. 865 (Bankr. W.D. Okla. 1996) .

Footnote 91. 325 F.3d 1168, 1173 (9th Cir. 2003).

Footnote 92. See, e.g., Mason v. Help Servs. Group, Inc. (In re Mason), 303 B.R. 459, 470 (Bankr. D. Idaho 2004) .

Footnote 93. Educational Credit Management Corp. v. Blair (In re Blair), 291 B.R. 514, 519-20 (B.A.P. 9th Cir. 2003) ; see also Educational Credit Management Corp. v. Pope, 2004 WL 557206 (N.D. Cal. Mar. 4, 2004) .

4-523 Collier on Bankruptcy-15th Edition Rev. P 523.14

Chapter 5 BANKRUPTCY CODE, Creditors, the Debtor, and the Estate

Subchapter II Debtor's Duties and Benefits

Chapter 523: Exceptions to Discharge


4-523 Collier on Bankruptcy-15th Edition Rev. P 523.14

P 523.14. Discharge Exception for Educational Loans; ╖ 523(a)(8).

[1] Types of Obligations Within Scope of Section 523(a)(8).

Section 523(a)(8) restricts the dischargeability of educational benefits or loans which were insured or guaranteed by a governmental unit or under any program funded by a governmental unit or nonprofit institution. In addition, as a result of the 2005 Act, the discharge of any education loan that is qualified for a tax deduction is similarly restricted.1 The 2005 Act extended the nondischargeability of educational loan to some loans that are not insured or guaranteed by a governmental unit or under a program funded by a governmental unit or nonprofit institution.

Typically, the participants in government insured or guaranteed educational loan programs (whether lenders or guarantors) grant credit to persons who might not qualify for credit under traditional credit standards, in order to foster the government's policy of promoting access to educational opportunities.1a

In delineating the boundaries of section 523(a)(8), courts have focused on two purposes of this exception to discharge:
- preventing abuses of the educational loan system by restricting the ability to discharge a student loan shortly after a student's graduation, and

- safeguarding the financial integrity of governmental entities and nonprofit institutions that participate in educational loan programs.1b


Based on these purposes, some courts have held that the liability of a non-student co-obligor of a guaranteed education loan (such as the student's parent) is not dischargeable under section 523(a)(8).2 A loan made by a debtor's employer for the express purpose of repaying the debtor's educational debt is not itself a nondischargeable educational loan.3

To fall within the discharge exception, an obligation must meet the literal criteria of section 523(a)(8) and be either an ''overpayment of an educational benefit'' or a ''loan.'' To constitute a ''loan,'' the creditor must have actually transferred funds to the debtor or the parties must have entered into an agreement for the extension of credit. Thus, the mere fact that the school has permitted a student to attend classes despite the student's unilateral decision not to timely pay the tuition does not transform the student's obligation to pay the tuition into a loan subject to the section 523(a)(8) discharge exception. Courts will treat the debt as a loan only if there is a formal, express agreement between the student and the school, such as a written loan agreement or a promissory note.3a

[2] Discharge Based on Undue Hardship; ╖ 523(a)(8).

Section 523(a)(8) is the ''hardship'' provision, which allows the court to discharge an otherwise nondischargeable student loan if excepting the debt from discharge will impose an undue hardship on the debtor or the debtor's dependents. This exemption from the exception to discharge requires the bankruptcy judge to exercise discretion in determining whether payment of the debt will cause undue hardship on the debtor and his dependents, thus defeating the ''fresh start'' concept of the bankruptcy laws. There may well be circumstances that justify failure to repay a student loan, such as illness or incapacity. When the court finds that such circumstances exist, it may order the debt discharged.

The Supreme Court has stated that section 523(a)(8) is ''self-executing'' and that ''[u]nless the debtor affirmatively secures a hardship determination, the discharge order will not include a student loan debt.''3b In other words, student loan debt remains due until there is a determination that the loan is dischargeable.3c

There has been a wide range of judicial reaction to the undue hardship claims of debtors. The most widely used test for evaluating the dischargeability of a student loan under section 523(a)(8) states that the debt is dischargeable if three conditions are met:
-- The debtor cannot maintain, based on current income and expenses, a ''minimal'' standard of living if forced to repay the loans;

-- There are indications that the state of affairs is likely to persist for a significant portion of the repayment period; and

-- The debtor made good faith efforts to repay the loans.4


In the first inquiry, the court will consider the debtor's income, living expenses and standard of living. A debtor is not expected to live in ''abject poverty'' in order to repay a student loan.4a Accordingly, the federal poverty level is too strict a standard for measuring whether the debtor's standard of living is at a minimal level and should not be employed for that purpose. Nor is it appropriate for the court to go through a debtor's budget dollar-for-dollar in order to find every possible way to create or increase a surplus if the overall expense level and living standard remains minimal.4b Rather, the court should examine the debtor's income and expenses in a manner that is sensitive to the particular circumstances of the case, taking into account the debtor's needs for care, including food, shelter, clothing, transportation medical treatment and a small source of recreation.4c

The second prong of the test, sometimes referred to as ''the additional circumstances test,'' requires that the court make a predictive judgment as to the likelihood that the debtor's financial hardship will continue for a significant portion of the repayment period. There are two elements to the second prong. The first is whether the debtor's financial difficulties are ''likely'' to continue. Under this standard, a debtor must establish by a preponderance of the evidence that the debtor's financial situation is not likely to improve. The debtor is not required to prove with certainty that the financial situation will not improve and the court's determination must be based on a realistic, factual assessment of the debtor's financial prospects, not on unfounded optimism.4d Nor is the debtor required to prove that the his or her financial distress will continue due to a serious illness, psychological problem, disability of the debtor or a dependent or some other exceptional circumstances. It is sufficient for the debtor to establish any circumstances that show that the inability to pay is likely to persist for a significant portion of the repayment period.4e The court's judgment on this question necessarily must be based on a consideration of the debtor's education, work history, health and other relevant circumstances.

The second element of the second prong is that the financial difficulties must be likely to persist for a significant portion of the repayment period. There is little judicial discussion of the meaning of the term ''significant portion of the repayment period,'' perhaps because courts are able to make judgments whether the factors causing a debtor's financial hardship are likely to persist indefinitely without the need for more precision. One court concluded that, for a 10-year loan, five years constituted a significant portion of the repayment period and evaluated the debtor's financial prospects within that time frame.4f

The good faith inquiry is guided by the understanding that ''undue hardship'' encompasses a notion that the debtor's bad financial condition and default should not have been caused by the debtor's own willfulness or negligence, but rather by factors beyond the debtor's control.5 Therefore, if the debtor has not made payments on the loans because, through no fault of the debtor, he or she has never had the ability to pay, the good faith effort test is met.5a

One circumstance that some courts have considered is the potential availability, in certain cases, of an income-contingent repayment plan pursuant to which the monthly payment due on a student loan is dependent on the debtor's income and, after a 25-year repayment period, any remaining unpaid balance is canceled.5b Creditors have argued that a debtor who has not applied for an income-contingent repayment plan cannot meet the good faith test. A more ambitious argument is that the existence of an option to repay based on the debtor's income establishes that there is no undue hardship and that, therefore, the student loan should not be discharged.5c

These arguments overstate the role that an income-contingent repayment plan should play in determining dischargeability. The U.S. Department of Education regulations provide that under an income-contingent repayment plan, a debtor is obliged to make some payment once the debtor's income exceeds the federal poverty level.5d However, the federal poverty level is below a ''minimal'' standard of living. Therefore, the repayment program is based on a standard different from that found in section 523(a)(8) and cannot be determinative.5e Courts must also be careful not to treat the enactment of the statute authorizing the U.S. Department of Education to accept an income-contingent repayment plan as an implied repeal of section 523(a)(8) of the Bankruptcy Code.

If there is a meaningful prospect for an improvement in the debtor's financial condition, an income-contingent repayment plan could provide relief to the debtor until the improved circumstances exist. However, if the debtor's prospects are not likely to improve, a mechanical finding that the existence of an income-contingent repayment precludes an undue hardship may prejudice the debtor. During the repayment program, which could last up to 25 years, interest continues to accrue on the debt. If, after the expiration of a lengthy repayment period, a large student loan is forgiven under the program, the debtor may incur a large tax debt due to taxable income arising from the debt forgiveness. Such a result would be inconsistent with the fresh start purposes of the Bankruptcy Code. Thus, the availability, by itself, of the income-contingent repayment plan should not preclude hardship discharge under section 523(a)(8). At most, its existence is one factor that may be considered by the court.5f

Despite the courts' best efforts to formulate objective criteria for evaluating undue hardship, the application of the articulated standards necessarily requires each court to apply its own intuitive sense of what is a ''minimal'' standard of living and what is ''good faith.'' At bottom, the Bankruptcy Code requires bankruptcy courts to decide how much personal sacrifice society expects from individuals who accepted the benefits of guaranteed student loans but who have not obtained the financial rewards they had expected to receive as a result of their educational expenditures.

[3] Partial Discharge of Student Loan; ╖ 523(a)(8).

The plain language of section 523(a)(8) provides for the nondischargeability of any debt falling within its terms unless certain conditions exist. The statutory text appears absolute on its face; it does not provide that a debt is nondischargeable ''to the extent'' that repayment would impose an undue hardship on the debtor. Nonetheless, some courts have found the ''all or nothing'' approach to student loan dischargeability dictated by the plain language to be inconsistent with the purpose of the provision and have held that section 105 of the Bankruptcy Code5g empowers the court to grant a discharge of that portion of the student loan obligation which would impose an undue hardship on the debtor.5h Other courts have rejected the partial discharge doctrine as unauthorized by the statute.5i

[4] Timing of Filing of Dischargeability Complaint in Chapter 13 Cases; ╖ 523(a)(8).

In 1990, Congress amended section 1328(a) to incorporate the section 523(a)(8) discharge exception in chapter 13 cases.5j Since a dischargeability determination under section 523(a)(8) requires an examination of the debtor's current and future financial situation, the question arises as to whether the dischargeability determination may be made prior to the end of a chapter 13 case. This is not an issue which arises in chapter 7 cases. As one court has explained,
In a Chapter 7 case, the bankruptcy proceeding is short-lived and the debtor achieves a quick discharge of his unsecured, dischargeable debts. Thus, predicting whether the debtor's current inability to maintain a minimal standard of living will persist throughout a significant portion of the repayment period is based upon a known, current situation. Where an adversary proceeding seeking a discharge of student loan obligations is brought early in a Chapter 13 case, however, the question of whether the debtor will be unable to maintain a minimal standard of living throughout a significant portion of the repayment period must be premised upon a prediction of what the debtor's situation will be at the conclusion of the Chapter 13 plan which, as here, may extend up to five years.5k


Some courts have held that, in a chapter 13 case, a dischargeability determination is not ripe until the completion of the chapter 13.5l Other courts have held that where circumstances exist that would permit the court to determine the debtor's future financial condition in advance of the conclusion of the chapter 13 case, a dischargeability determination under section 523(a)(8) may be made prior to the completion of the debtor's chapter 13 plan.5m

[5] Postpetition Interest on Nondischargeable Student Loans in Chapter 13 Cases; ╖ 523(a)(8).

Under section 502(b)(2) of the Bankruptcy Code,5n unmatured interest on an unsecured claim is not allowable. Thus, the bankruptcy estate is not liable for postpetition interest on an unsecured claim. Since the Supreme Court's decision in Bruning v. United States ,5o it has been settled that the estate's freedom from liability does not relieve the debtor from personal liability for postpetition interest on a nondischargeable tax debt.5p This principle applies to nondischargeable student loan debts in chapter 13 cases. Thus, unless the chapter 13 plan provides otherwise,5q the debtor will remain liable for postpetition interest on a student loan claim which is nondischargeable under section 523(a)(8) after the conclusion of the chapter 13 case, even if the chapter 13 plan provided for full payment of the prepetition claim.5r

[6] Repealed Seven-Year Rule; Consolidation Loans; Former ╖ 523(a)(8)(A)

[Repealed]

Prior to October 7, 1998, section 523(a)(8) provided for the dischargeability of an educational loan or benefit if the debtor's repayment obligation ''first became due more'' than seven years (exclusive of any applicable suspension period) before the date of the filing of the petition.6 Former section 523(a)(8)(A) reflected a legislative judgment that after a seven year repayment period has expired, the public policy concerns about potential abuse of the educational loan system and the risks to the system's fiscal integrity are outweighed by the fresh start policy of the Code.

In 1998, Congress deleted section 523(a)(8)(A) from the Code, leaving ''undue hardship'' as the sole basis for discharging an educational loan or benefit.7 The elimination of the ''seven year rule'' applies to all cases commenced after October 7, 1998.8

Under former section 523(a)(8)(A), the term ''first became due'' was measured from the date the first installment payment on the loan fell due.9 Further, any time period in which repayment of the student loan was ''suspended'' was disregarded in computing whether seven years elapsed between the date repayment first fell due and the commencement of the bankruptcy case. An improper deferment, such as an unrequested unemployment deferment or one that was not authorized by the applicable regulations, did not suspend the running of the seven year period.10

It is not uncommon for a debtor to sign a single note that consolidates the series of smaller notes that were signed when the debtor was in school. In some cases, the debtor has signed the consolidation note some time after repayment fell due on the original notes. In such cases, some courts have held that the seven-year period is measured from the execution of the consolidation note, not the earlier date on which the debtor's repayment obligation began.11 This result was questionable because it effectively expanded the seven-year repayment period established by Congress for the dischargeability of student loans.

[7] Health Education Loans; 42 U.S.C. ╖ 292f(g) (HEAL); 42 U.S.C. ╖ 254o(c)(3) (NHSC).

Separate dischargeability rules apply to certain health educational loan programs. The most well known are loans provided under the Health Education Assistance Loan Act (HEAL).12 HEAL provides in pertinent part:
(g) A debt which is a loan insured under the authority of this subpart may be released by a discharge in bankruptcy under any chapter of title 11, United States Code ... , only if such discharge is granted--
(1) after the expiration of the 5-year period beginning on the first date, as specified in subparagraphs (B) and (C) of section 731(a)(2) ... , when repayment of such loan is required;

(2) upon a finding by the Bankruptcy Court that the nondischarge of such debt would be unconscionable; and

(3) upon the condition that the Secretary shall not have waived the Secretary's right to apply subsection (f) to the borrower and the discharged debt.


The dischargeability of a HEAL loan under all chapters of the Code is controlled by 42 U.S.C. ╖ 292f(g), the more specific and later enacted statute, rather than section 523(a)(8).13 The ''unconscionability'' standard for discharging HEAL loans is stricter than the ''undue hardship'' standard under section 523(a)(8).14 However, in evaluating whether a debtor can establish that requiring repayment of the debt would be unconscionable, a court should consider the same factors used in determining whether a debt is dischargeable under the undue hardship standard.15

The National Health Service Corps (NHSC) Scholarship Program awards students scholarships in return for a commitment to serve for two years in the Public Health Service or as a civilian member of the NHSC. If a student does not receive a degree, the amount of the scholarship must be repaid. The NHSC statute bars the discharge of NHSC repayment obligations in bankruptcy cases except in certain circumstances.16

FOOTNOTES:
Footnote 1. 11 U.S.C. ╖ 523(a)(8)(B), as amended by Pub L. No. 109-8, ╖ 220 2005), effective in cases commenced on or after October 17, 2005, reprinted in App. Pt. 10(a) infra.

Footnote 1a. See Santa Fe Medical Services, Inc. v. Segal (In re Segal), 57 F.3d 342, 33 C.B.C.2d 1496 (3d Cir. 1995) .

Footnote 1b. E.g., In re Renshaw, 222 F.3d 82 (2d Cir. 2000) . However, the National Bankruptcy Review Commission concluded that the anecdotal concerns about abuse of the educational loan system are not supported by empirical evidence. National Bank. Rev. Comm'n, Bankruptcy: The Next Twenty Years, ╖1.4.5 (Oct. 20, 1997), cited in In re Hornsby, 144 F.3d 433, 40 C.B.C.2d 313 (6th Cir. 1998) .

Footnote 2. In re Pelkowski, 990 F.2d 737, 28 C.B.C.2d 1023 (3d Cir. 1993) .

Footnote 3. Santa Fe Medical Services, Inc. v. Segal (In re Segal), 57 F.3d 342 (3d Cir. 1995) .

Footnote 3a. In re Chambers, 348 F.3d 650 (7th Cir. 2003) ; Boston Univ. v. Mehta (In re Mehta), 310 F.3d 308 (3d Cir. 2002) ; Cazenovia College v. Renshaw (In re Renshaw), 222 F.3d 82 (2d Cir. 2000) .

Footnote 3b. Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 124 S. Ct. 1905, 1912, 158 L. Ed. 2d 764, 51 C.B.C.2d 627 (2004) .

Footnote 3c. Underwood v. United Student Aid Funds, Inc. (In re Underwood), 299 B.R. 471 (Bankr. S.D. Ohio 2003) .

Footnote 4. Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir. 1987) ; see also Educational Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302, 1309 (10th Cir. 2004) (adopting Brunner framework with qualification that it ''must be applied such that debtors who truly cannot afford to repay their loans may have their loans discharged''); Hemar Ins. Corp. of Am. v. Cox (In re Cox), 338 F.3d 1238 (11th Cir. 2003) ; In re Pena, 155 F.3d 1108, 40 C.B.C.2d 848 (9th Cir. 1998) ; Pennsylvania Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298 (3d Cir. 1995) ; Cheesman v. Tennessee Student Assistance Corp. (In re Cheesman, 25 F.3d 356 (6th Cir. 1994), cert. denied, 513 U.S. 1081, 115 S. Ct. 731, 130 L. Ed. 2d 634 (1995) ; In re Roberson, 999 F.2d 1132, 29 C.B.C.2d 561 (7th Cir. 1993) . Cf. Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549 (8th Cir. 2003) (adopting ''less restrictive'' totality of the circumstances test focusing on (1) the debtor's past, present and reasonably reliable future financial resources, (2) the reasonable, necessary living of expenses of the debtor and the debtor's dependents and (3) any other relevant facts and circumstances).

Footnote 4a. Pennsylvania Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298 (3d Cir. 1995) .

Footnote 4b. Cline v. Illinois Student Loan Assistance Ass'n (In re Cline), 248 B.R. 347 (B.A.P. 8th Cir. 2000) .

Footnote 4c. See Ivory v. United States (In re Ivory), 269 B.R. 890 (Bankr. N.D. Ala. 2001) ; Salinas v. United Student Aid Funds, Inc. (In re Salinas), 258 B.R. 913 (Bankr. W.D. Wis. 2001) .

Footnote 4d. Educational Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302 (10th Cir. 2004) .

Footnote 4e. Nys v. Educational Credit Mgmt. Corp. (In re Nys), 308 B.R. 436, 444 (B.A.P. 9th Cir. 2004) (''The circumstances need be 'exceptional' only in the sense that they demonstrate insurmountable barriers to the debtor's financial recovery and ability to pay.'').

Footnote 4f. Mayer v. Pennsylvania Higher Educ. Assistance Agency (In re Mayer), 198 B.R. 116 (Bankr. E.D. Pa. 1996) .

Footnote 5. Educational Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302 (10th Cir. 2004) ; Pennsylvania Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 305, 34 C.B.C.2d 1312, 1324 (3d Cir. 1995) (citations omitted).

Footnote 5a. Alderete v. Educational Credit Mgmt. Corp. (In re Alderete), 308 B.R. 495 (B.A.P. 10th Cir. 2004) ; Great Lakes Higher Education Corp. v. Brown (In re Brown), 239 B.R. 204 (S.D. Cal. 1999) ; Clevenger v. Nebraska Student Loan Program (In re Clevenger), 212 B.R. 139 (Bankr. W.D. Mo. 1997) .

Footnote 5b. See 20 U.S.C. ╖ 1087e(d)(1); 34 C.F.R. ╖╖ 685.208-685.209 (William D. Ford Federal Direct Loan Program).

Footnote 5c. See Long v. Educ. Credit Mgmt. Corp. (In re Long), 292 B.R. 635 (B.A.P. 8th Cir. 2003) .

Footnote 5d. 34 C.F.R. ╖ 685.209.

Footnote 5e. Alderete v. Educational Credit Management Corp. (In re Alderete), 308 B.R. 495 (B.A.P. 10th Cir. 2004) (little weight given to the debtor's failure to investigate eligibility for an income contingent repayment plan where evidence showed that, if eligible, the debtor could not have afforded the minimum program payments).

Footnote 5f. Ford v. Student Loan Guar. Found. of Ark. (In re Ford), 269 B.R. 673 (B.A.P. 8th Cir. 2001) .

Footnote 5g. 11 U.S.C. ╖ 105.

Footnote 5h. E.g., Saxman v. Educational Credit Management BJR Corp. (In re Saxman), 325 F.3d 1168 (9th Cir. 2003) ; Tennessee Student Assistance Corp. v. Hornsby (In re Hornsby), 144 F.3d 433 (6th Cir. 1998) ; see also Miller v. Pennsylvania Higher Educ. Assistance Agency (In re Miller), 377 F.3d 616 (6th Cir. 2004) (clarifying Hornsby and holding that the section 105 does not provide an independent basis for a partial discharge; the section 105 power to grant a partial discharge can only be made upon a showing of undue hardship under section 523(a)(8) as to the partial amount to be discharged).

Footnote 5i. E.g., Salinas v. United Student Aid Funds, Inc. (In re Salinas), 258 B.R. 913 (Bankr. W.D. Wis. 2001) ; Skaggs v. Great Lakes Higher Educ. Corp. (In re Skaggs), 196 B.R. 865 (Bankr. W.D. Okla. 1996) .

Footnote 5j. See P 1328.02[3][d] infra.

Footnote 5k. Ekenasi v. Education Resources Institute (In re Ekenasi), 325 F.3d 541, 547 (4th Cir. 2003) .

Footnote 5l. E.g., Soler v. United States (In re Soler), 250 B.R. 694 (Bankr. D. Minn. 2000) .

Footnote 5m. Ekenasi v. Education Resources Institute (In re Ekenasi), 325 F.3d 541, 547 (4th Cir. 2003) ; see also Goranson v. Pennsylvania Higher Educ. Assistance Agency (In re Goranson), 183 B.R. 52 (Bankr. W.D.N.Y. 1995) .

Footnote 5n. 11 U.S.C. ╖ 502(b)(2); see P 502.03[3] supra.

Footnote 5o. 376 U.S. 358, 84 S. Ct. 906, 11 L. Ed. 2d 772 (1964).

Footnote 5p. See P 523.07[7] supra.

Footnote 5q. Great Lakes Higher Education Corporation v. Pardee (In re Pardee), 193 F.3d 1083 (9th Cir. 1999) (even if statute provides for nondischargeability of debt, the debt was discharged by the creditor's failure to challenge the plan during the bankruptcy proceedings); Andersen v. UNIPAC-NEBHELP (In re Andersen), 179 F.3d 1253 (10th Cir. 1999) (same). But see Banks v. Sallie Mae Servicing Corp. (In re Banks), 299 F.3d 296 (4th Cir. 2002) (confirmation order held not binding on creditor because dischargeability must be determined by adversary proceeding).

Footnote 5r. Kielisch v. Educational Credit Mgmt. Corp. (In re Kielisch), 258 F.3d 315 (4th Cir. 2001) ; Leeper v. Pennsylvania Higher Educ. Assistance Agency (In re Leeper), 49 F.3d 98 (3d Cir. 1995) .

Footnote 6. Section 523(a)(8)(A) originally required that an educational loan or benefit be due and owing for a five-year period before that debt could be discharged. The five-year period was increased to seven years in 1990. Pub. L. No. 101-647, ╖ 3621(1) (1990).

Footnote 7. Higher Education Amendments of 1998, Pub. L. No. 105-244, ╖ 971(a) (1998), reprinted in App. Pt. 41(o)(iii) infra.

Footnote 8. Higher Education Amendments of 1998, Pub. L. No. 105-244, ╖ 971(b) (1998), reprinted in App. Pt. 41(o)(iii) infra.

Footnote 9. Nunn v. State of Washington (In re Nunn), 788 F.2d 617, 14 C.B.C.2d 892 (9th Cir. 1986) ; see also Woodcock v. Chemical Bank, NYSHESC (In re Woodcock), 45 F.3d 363, 32 C.B.C.2d 1341 (10th Cir. 1995), cert. denied, 516 U.S. 828, 116 S. Ct. 97, 133 L. Ed. 2d 52 (1995) .

Footnote 10. Connecticut Student Loan Found. v. Keenan (In re Keenan), 14 C.B.C.2d 1344, 53 B.R. 913 (Bankr. D. Conn. 1985) .

Footnote 11. See, e.g., Hiatt v. Indiana State Student Assistance Commission, 36 F.3d 21 (7th Cir. 1994) ; United States v. McGrath, 143 B.R. 820 (D. Md. 1992) ; In re Martin, 137 B.R. 770 (Bankr. W.D. Mo. 1992) .

Footnote 12. 42 U.S.C. ╖ 292f(g).

Footnote 13. United States v. Rice, 182 B.R. 759 (N.D. Ohio 1994), aff'd, 78 F.3d 1144 (6th Cir. 1996) ; Hines v. United States (In re Hines), 15 C.B.C.2d 959, 63 B.R. 731 (Bankr. D.S.D. 1986) .

Footnote 14. U.S. Dep't of Health & Human Servs. v. Smitley, 347 F.3d 109 (4th Cir. 2003) ; Rice v. United States (In re Rice), 78 F.3d 1144 (6th Cir. 1996) ; In re Lawrence, 32 C.B.C.2d 1903 (Bankr. S.D. Fla. 1995) .

Footnote 15. Rice v. United States (In re Rice), 78 F.3d 1144 (6th Cir. 1996) ; see also U.S. Dep't of Health & Human Servs. v. Smitley, 347 F.3d 109 (4th Cir. 2003) (considering, inter alia, the debtor's age, income, earning ability, health, educational background, dependents, standard of living, the likelihood that the debtor's situation will improve, the debtor's previous efforts to repay the loan).

Footnote 16. 42 U.S.C. ╖ 254o(c)(3); see United States v. Brown (In re Brown), 79 B.R. 789 (Bankr. N.D. Ill. 1987) .