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 when you look at the evaluation of discharging academic financial obligation, (2) the goal of the Bankruptcy Code, and (3) the necessity for persistence and fairness into the court system. Research on individual cognition demonstrates that judges bring different impacts, such as for example age, sex, generation, faith, and values together with them to the decision-making process when cons 193 Negowetti, supra note 179, at 722–23. While there are lots of methods uniformity and persistence when you look at the standard is possible, this Comment takes the positioning that tools of statutory interpretation offer an opportunity for reconceptualizing “undue difficulty” in light regarding the use within the present bulk test. By reconceptualizing the typical in a manner that is in line with making use of the conventional throughout other sourced elements of federal legislation, my hope is the fact that bankruptcy courts will employ a typical that acknowledges the worth in acquiring advanced schooling and delivers an opportunity that is equal a “fresh begin” from burdensome debt burden to people who pursue advanced schooling.
1 Zack Friedman, Have Figuratively Speaking 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 Information 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 conclusion to Judicial Lawmaking: Abolishing the Hardship that is undue Exception student education loans in Bankruptcy, 34 U.C. Davis L. Rev. 221, 224 (2000).
8 11 U.S.C. § 523(a)(8) (2018).
9 Roger Roots, The scholar 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 Student Loan Debt, 53 Santa Clara L. Rev. 329, 330–31 (2013).
13 Roots, supra note 9, at 512.
18 11 U.S.C. § 523(a)(8).
20 Rafael I. Pardo & Michelle R. Lacey, Undue Hardship within the Bankruptcy Courts: An Empirical Assessment associated with 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. 27, 1979), Brunner v. N. Y june. 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. Greater Educ. Assistance Discovered. (In re Simons), 119 B.R. 589, 592–93 (Bankr. S.D. Ohio 1990) ( going for a totality-of-the-circumstances-approach); see additionally Robert F. Salvin, figuratively speaking, 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 student education loans, 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 and even though “both the Tenth and Eleventh Circuits” have purportedly “adopted identical variations for the Brunner test, ” “the Brunner test as used by the Eleventh Circuit will not are the exact exact exact 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” difficulty 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 regarding the circumstances approach does, however, contemplate the existence of unique and extraordinary circumstances, for the fact payment would just 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 pecuniary hardship or current economic adversity”); In re Lohman, 79 B.R. 576, 584 (D. Vt. 1987) (debtor’s circumstances must certanly 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 extra, excellent circumstances, highly suggestive of continuing failure to settle over a prolonged 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 near future it could be impossible for him to come up with sufficient earnings to “pay down” the mortgage and keep 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 an exceptional situation by having a certainty of hopelessness as to virtually any possibility for payment when it comes to indefinite future. Mere inconvenience, austere spending plan, monetary trouble and insufficient current work are not grounds for discharging academic debts for undue difficulty”); In re Mathews, 166 B.R. At 943, 945 (Bankr. D. Kan. 1994) (by utilizing that is“undue a modifier, Congress “meant that ordinary ‘garden variety’ hardship wouldn’t normally suffice, ” the debtor “must show that the blend of this low earnings and excellent circumstances is really so serious and oppressive that there surely is absolutely no way that the debtor is ever going to have the ability to repay your debt and continue maintaining a minor standard of living”); In re Rappaport, 16 B.R. 615, 617 (Bankr. D.N.J. ) (needing “total incapacity now as well as in the long term to cover one’s debts for reasons maybe perhaps maybe not inside the control of the average person debtor”). See additionally Pa. Greater Educ. Assistance Agency v. Faish (In re Faish), 72 F. installment loans iowa 3d 298, 305–06 (third Cir. 1995) (debtor eligible to reside in something significantly more than “abject poverty, ” must show “she cannot keep a minor quality lifestyle if forced to repay 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 stringent that is most of terms, concentrating perhaps perhaps maybe not upon if the debtor possesses an ‘adequate’ earnings but alternatively if the debtor is scraping by for 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 most near-future that is probable a debtor”).
30 Robert C. Cloud & Richard Fossey, Facing the learning student Debt Crisis: Restoring the Integrity for the Federal scholar Loan Program, 40 J. C. & U. L. 467, 496 (2014).