EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Claimant-Appellant,
v.
Mark Allen JESPERSON, Debtor-Appellee.
United States Court of Appeals, Eighth Circuit.
*778 A.L. Brown, argued, St. Paul, MN, for appellant.
Monica Lynn Clark, argued, Douglas Paul, on the brief, Minneapolis, MN, for appellee.
Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.
LOKEN, Chief Judge.
Mark Allen Jesperson, a recently licensed Minnesota attorney, petitioned for Chapter 7 bankruptcy relief in October 2005 and commenced this core proceeding against his student loan creditors, seeking an undue hardship discharge of substantial student loan debts, which would otherwise be non-dischargeable under 11 U.S.C. § 523(a)(8). The bankruptcy court concluded that Jesperson's student loan debts "constitute an undue hardship ... and are accordingly discharged." In re Jesperson,
I.
Section 523(a)(8) of the Bankruptcy Code provides that debts for educational loans "made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit," may not be discharged unless "excepting such debt from discharge... would impose an undue hardship on the debtor and the debtor's dependents." Federal government student loan programs began in 1958. In 1973, to curb perceived abuses, the Commission on the Bankruptcy Laws of the United States recommended that "educational loans be nondischargeable unless the first payment falls due more than five years prior to the petition." H.R. Doc. No. 93-137 (1973), reprinted in B App. Collier on Bankruptcy, pt. 4(c), at 4-432 (15th rev. ed.2008). Congress enacted this recommendation in the Bankruptcy Reform Act of 1978. Pub.L. No. 95-598, § 523(a)(8), 92 Stat. 2549, 2591 (1978), codified at 11 U.S.C. § 523(a)(8). In 1990, Congress lengthened from five to seven years the period beyond which government-assisted student loans became automatically dischargeable. Pub.L. No. 101-647, § 3621, 104 Stat. 4789, 4964-65 (1990), amending 11 U.S.C. § 523(a)(8)(A). Then, in the Higher Education Amendments of 1998, Congress eliminated this time limitation, making "undue hardship" the only exception to non-dischargeability. Pub.L. No. 105-244, § 971(a), 112 Stat. 1581, 1837 (1998).
*779 We apply a totality-of-the-circumstances test in determining undue hardship under § 523(a)(8).[1] Reviewing courts must consider the debtor's past, present, and reasonably reliable future financial resources, the debtor's reasonable and necessary living expenses, and "any other relevant facts and circumstances." Long,
II.
When this case was tried in February 2007, Jesperson was forty-three years old, in good health, and unmarried, with two sons from different relationships living with their mothers. He began college in 1983, attended three schools over the next eleven years, and graduated from the University of Minnesota-Duluth in 1994. He began law school in 1996, changed schools in 1997, completed his legal education in 2000, and passed the bar on his first attempt in February 2002. At the time of trial, he owed ECMC $304,463.62 in principal, interest, and collection costs on eighteen student loans, and he owed Arrow Financial Services $58,755.26 on seven other student loans. He has never repaid any part of any loan.
The bankruptcy court found that Jesperson's "record of work experience is besmirched by a patent lack of ambition, cooperation and commitment."
Q It's true, Mr. Jesperson, that you think this debt should just go away, isn't that true:
A Yes.
Q And even if you had, Mr. Jesperson, an extra $500 per month, you don't think you should have to put that towards your student loans, do you?
A No.
Based on gross monthly income of $4,000, Jesperson stipulated that he was likely in the 33% combined federal and state income tax bracket. Using this inflated tax rate, the bankruptcy court found that his current after-tax income was *780 $2680 per month. Use of the inflated tax rate was clear error. Arguably, Jesperson's failure to make a good faith estimate of his applicable tax rate means that he failed to prove undue hardship. Alternatively, a reasonable estimate of the combined rate for gross income of $48,000 would be 17.5%, producing after-tax net income of $3300 per month rather than $2680 per month. The bankruptcy court estimated Jesperson's "basic necessary monthly expenses" as $2857$1000 for housing, $1000 for child support, $325 for food, $142 for auto maintenance and insurance, $250 for gasoline, and $140 for parking.
Based on these estimates, the bankruptcy court concluded that "Jesperson's current surplus is at best a trifle and more likely a fiction."
III.
Jesperson's young age, good health, number of degrees, marketable skills, and lack of substantial obligations to dependents or mental or physical impairments weigh in favor of not granting an undue hardship discharge. See, e.g., Oyler v. Educ. Credit Mgmt. Corp.,
it would be perverse to allow the debtor to benefit from [his] own inaction, delay and recalcitrance by automatically granting discharge simply because the debt is a sizeable one. This, of course, would benefit those who delay and obstruct the longest and could encourage other students to follow the [same] course.
United States v. Kephart,
When the size of the debts is the principal basis for a claim of undue hardship, the generous repayment plans Congress authorized the Secretary of Education *781 to design and offer under the William D. Ford Federal Direct Student Loan Program become more relevant to a totality-of-the-circumstances undue hardship analysis. See Student Loan Reform Act of 1993, Pub.L. No. 103-66, tit. IV, § 4021, 107 Stat. 312, 341, codified at 20 U.S.C. § 1087e(d); 34 C.F.R. § 685.208. The most generous plan is the Income Contingent Repayment Plan ("ICRP"), which permits an eligible borrower to make "varying annual repayment amounts based on the income of the borrower, paid over an extended period of time prescribed by the Secretary, not to exceed 25 years." § 1087e(d)(1)(D); see 34 C.F.R. § 685.209. Though the House and Senate bills initially provided that loans issued under the Direct Student Loan Program would not be dischargeable, the House Conference Report explained why this provision was deleted from the final bill:
The conferees believe that current provisions of the Bankruptcy Code are sufficient to protect against unnecessary discharge of direct student loans in bankruptcy. Section 523(a)(8) of the Bankruptcy Code operates to prevent the discharge of federally guaranteed education loans except in cases ... where failure to allow the discharge would impose an undue hardship.... It is the intent of the conferees that loans made pursuant to the Federal Direct Student Loan Program would be subject to these same limitations on discharge.
H.R. Conf. Rep. No. 103-213, at 448-49 (1993), reprinted in 1993 U.S.C.C.A.N. 1088, 1137-38. Thus, undue hardship under § 523(a)(8) continues to require separate analysis under which, in this circuit, the ICRP is "a factor" to consider in evaluating the totality of the debtor's circumstances. In re Lee,
Under the ICRP, an eligible debtor's annual loan payment is equal to twenty percent of the difference between his adjusted gross income and the poverty level for his family size, regardless of the amount of unpaid student loan debt. 34 C.F.R. § 685.209(a)(2)-(3). Repayments are made monthly. § 685.208(k). The Secretary recalculates the annual payment amount each year based on changes in the borrower's adjusted gross income and the HHS Poverty Guidelines and may adjust the obligation based upon special circumstances such as a loss of employment. §§ 685.209(a)(5), (c)(3). If the borrower has not repaid the loan at the end of twenty five years, "the Secretary cancels the unpaid portion of the loan." § 685.209(c)(4)(iv). The Secretary may require a borrower who has defaulted to repay the student loan pursuant to an ICRP, 20 U.S.C. § 1087e(d)(5)(B), confirming that the ICRP is an appropriate way for borrowers to avoid undue hardship while repaying their loans.[2]
ECMC presented undisputed evidence that its loans to Jesperson are eligible for the ICRP. Based on Jesperson's adjusted gross income at the time of trial, the bankruptcy court found that his 2008 monthly ICRP payments would be $629 per month for a family of one, $572 per *782 month for a family of two, and $514 per month for a family of three, without regard to the size of his unpaid student loan balance. Thus, with a current surplus of $900 per month, the record establishes that he can make ICRP payments on his ECMC loans without compromising a minimal standard of living. In these circumstances, "the debt should not be discharged." Long,
The bankruptcy court and the district court rejected reliance on the ICRP because "it does not offer a fresh start" and "might even be viewed as inimical to the goals of the fresh start because the ICRP allows for negative amortization of the student loan debt and a potentially significant tax bill if the student loan is ultimately forgiven after 25 years."
The bankruptcy court and the district court also relied on a flawed analysis of the ICRP. To demonstrate "negative amortization," the bankruptcy court presented a chart showing Jesperson's student loan debt to ECMC growing to $1,746,256 over the twenty-five-year ICRP repayment period on account of the capitalization of unpaid interest if he made $514 monthly ICRP payments. But the chart ignored the ICRP's explicit ten percent limit on the capitalization of unpaid interest. 34 C.F.R. § 685.209(c)(5). Likewise, the court's reference to "a potentially significant tax bill" when any unpaid balance is cancelled after twenty-five years ignored the fact that cancellation results in taxable income only if the borrower has assets exceeding the amount of debt being cancelled. See 26 U.S.C. § 108(a)(1)(B).
Jesperson is a paradigmatic example of a student loan debtor for whom ICRP eligibility combined with his other circumstances require a conclusion of no undue hardship. Near the start of his legal career, he seeks bankruptcy discharge of multiple student loan debts he never tried to repay. Recent employment is evidence that, if motivated, he will enjoy sustained legal employment in future years, profiting from his many years of loan-subsidized higher education. Based on Jesperson's "history of employment retention difficulty," the bankruptcy court thought it unlikely he would increase or even maintain his current rate of pay in the future. But this pessimistic speculation is unwarranted and inappropriate. A debtor is not entitled to an undue hardship discharge of student loan debts when his current income is the result of self-imposed limitations, rather than lack of job skills, and he has not made payments on his student loan debt despite the ability to do so. In re Loftus,
On this record, we conclude that, with the aid of an income contingent repayment plan, Mark Allen Jesperson can presently make student loan payments without compromising a minimal standard of living, *783 and he has the potential of repaying at least a substantial portion of his student loan debts during the ICRP repayment period. When a debtor is eligible for the ICRP, the court in determining undue hardship should be less concerned that future income may decline. The ICRP formula adjusts for such declines, without regard to the unpaid student loan balance, which in most cases will avoid undue hardship. Therefore, however unattractive or unfair Jesperson may find this situation, he is not entitled to an undue hardship discharge under § 523(a)(8). The judgment of the district court is reversed, and the case is remanded with directions to enter an order declaring that Jesperson's student loan debts to ECMC are not discharged.
SMITH, Circuit Judge, concurring.
I concur in the court's judgment that, applying de novo review, Jesperson is ineligible for an undue hardship discharge of his student loan debt under 11 U.S.C. § 523(a)(8). I write separately to emphasize that whether the debtor enrolled in the Income Contingent Repayment Plan (ICRP) remains merely "a factor" to consider when applying the totality-of-the-circumstances test. In the present case, even assuming that Jesperson's decision to forgo enrolling in the ICRP was reasonable, other relevant factors, such as "Jesperson's young age, good health, number of degrees, marketable skills, and lack of substantial obligations to dependents or mental or physical impairments," supra Part III, establish that Jesperson does not represent the type of debtor experiencing undue hardship that Congress envisioned receiving the benefit of § 523(a)(8).
Section 523(a)(8) states that a debtor's student loan is not dischargeable "unless excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor's dependents." In evaluating whether a debtor's student loans would impose an "undue hardship," we apply the totality-of-the-circumstances test. Long v. Educ. Credit Mgmt. Corp. (In re Long),
(1) the debtor's past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor's and her dependent's reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case.
Id. (emphasis added).The debtor has the burden of proving undue hardship. Reynolds v. Penn. Higher Educ. Assistance Agency (In re Reynolds),
Because the totality-of-the-circumstances test is "very broad," "courts in the Eighth Circuit have looked to a number of facts and circumstances to assist them in making this determination." McLaughlin v. U.S. Funds (In re McLaughlin),
(1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the ability of the debtor to obtain gainful employment in the area of the study; (7) *784 whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and (9) the ratio of student loan debt to total indebtedness.
Id. (citing VerMaas v. Student Loans of N.D. (In re VerMaas),
Thus, a "debtor's good faith effort to lower [his or] her monthly payment by qualifying for an income contingent repayment plan is a factor in the undue hardship analysis." Cumberworth v. U.S. Dep't of Educ. (In re Cumberworth),
Congress recently enacted "the most sweeping reform of bankruptcy law since the enactment of the Bankruptcy Code in 1978." Michael & Phelps, supra, at 77-78; see also Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (codified in various sections of 11 U.S.C.). Yet Congress left § 523(a)(8)'s "undue hardship" language intact. Had Congress intended participation in the ICRPimplemented in 1994to effectively repeal discharge under § 523(a)(8), it could have done so. In addition, requiring enrollment in the ICRP runs counter to the Bankruptcy Code's aim in providing debtors a "fresh start." The debtor is encumbered with the debt for an additional twenty-five years, regardless of the length of the student loans. If, at the end of the twenty-five years, the debtor has been unable to repay all the student loans, the remaining debt is canceled and that discharge of indebtedness is treated as taxable income. See Michael & Phelps, supra, at 105. The result, as the bankruptcy court noted, would be that [the debtor] would "be trading one nondischargeable debt for another."
Barrett,
But if a debtor merely refuses to enroll in the ICRP because he or she wants a "fresh start," indicating that the debtor has a "lack of interest in repaying [his or] her debt," then such factor certainly weighs in favor of not discharging the debt. Educ. Credit Mgmt. Corp. v. Frushour (In re Frushour),
In the present case, considering the totality of the circumstances, one of which is participation in the ICRP, Jesperson exemplifies the type of debtor who is not eligible for a discharge of his student loan debt under § 523(a)(8). Jesperson (1) is well-educated, (2) is skilled in a specific profession (the law), (3) is young, (4) is in good health, (5) suffers from no physical or mental impairments at the present time, *785 (6) is unmarried, (7) has the capacity to work, and (8) has made no payments toward his student loan debt, indicating a lack of interest in repaying his debt via the ICRP or otherwise. Jesperson's current situation seems to be the result of his own self-imposed limitations, evidenced by his routinely quitting jobs after a short period of time. Such a "patent lack of ambition, cooperation and commitment," Jesperson v. U.S. Dep't of Educ. (In re Jesperson),
Accordingly, based on the totality of the circumstances, I concur in the court's reversal of the judgment of the district court and its remand with directions to enter an order declaring that Jesperson's student loan debts to ECMC are not discharged.
BYE, Circuit Judge, joining, in part, Judge SMITH'S concurring opinion, and dissenting.
The court holds the bankruptcy court erred in discharging Mark Jesperson's student loans under 11 U.S.C. § 523(a)(8)'s undue hardship provision. I write separately to emphasize that, in accordance with the overwhelming majority of courts, a debtor is not ineligible for a hardship discharge if capable of making payments under the William D. Ford Federal Direct Student Loan Program's Income Contingent Repayment Plan (ICRP). 20 U.S.C. § 1087e(d)(1)(D); 34 C.F.R. § 685.208; see also 20 U.S.C. § 1087e(d) (authorizing the Secretary of Education to implement alternative plans for repayment of student loans). Additionally, I dissent from the majority's opinion denying Jesperson a hardship discharge, and its rejection of the bankruptcy court's findings of fact and application of those facts to its § 523(a)(8) analysis.
Under § 523(a)(8), student loans may be discharged for undue hardship. The debtor bears the burden of proof by a preponderance of the evidence, Ford v. Student Loan Guarantee Foundation of Ark.,
[I]f the debtor's reasonable future financial resources will sufficiently cover payment of the student loan debtwhile still allowing for a minimal standard of livingthen the debt should not be discharged. Certainly, this determination will require a special consideration of the debtor's present employment and financial situationincluding assets, expenses, and earningsalong with the prospect of future changespositive or adversein the debtor's financial position.
In re Long,
*787 Wholly separate from bankruptcy law and § 523(a)(8)'s undue hardship discharge provision is the ICRP, one of four student loan repayment options administered by the Department of Education. Under the ICRP, the annual amount owed by the borrower is the lesser of the amount that would be paid if the borrower repaid the loans in twelve years, multiplied by an annual percentage factor based on adjusted gross income, or 2) twenty percent of the borrower's discretionary income. 34 C.F.R. § 685.209(a)(2). Discretionary income is defined as adjusted gross income minus the poverty guidelines, with an adjustment for family size. Id. at 685.209(a)(3). The ICRP requires a minimum monthly payment of five dollars, unless the formula results in no discretionary income. In such cases, the monthly payment is zero. Id. at 685.209(a)(6). If the payment is less than accrued interest, the unpaid interest is capitalized until the outstanding principal is ten percent greater than the original principal amount, after which interest continues to accrue but is no longer capitalized. Id. at 685.209(c)(5). The repayment period lasts twenty-five years, after which any unpaid balance is cancelled and may be reported to the Internal Revenue Service as taxable income. See In re Korhonen,
A debtor's ability to qualify for the ICRP is only one factor to consider when undertaking the undue hardship inquiry. The availability of the ICRP does not trump our court's longstanding preference for case-by-case consideration of the "unique facts and circumstances that surround [each] particular bankruptcy," as embodied in our totality-of-the-circumstances test. In re Long,
The first provision making student loan debt nondischargeable was enacted as part of the Education Amendments of 1976. Pub.L. No. 94-482, § 127(a), 90 Stat.2081, 2141 (codified at 20 U.S.C. § 1087-3 (1976) (repealed 1978)). It was replaced by the Bankruptcy Reform Act of 1978, Pub.L. 95-598, § 523(a)(8), 92 Stat. 2549 (1978), under which student loan debt was nondischargeable for a five-year period following commencement of the repayment period, absent a showing of undue hardship. Congress later extended § 523(a)(8)'s period of nondischargeability to seven years, Pub.L. No. 101-647, § 3621(2), 104 Stat. 4789, 4965 (1990), and in 1998, eliminated any such provision from § 523(a)(8), Pub.L. No. 105-244, § 971(a), 112 Stat. 1581 (1998).
Prior to amending § 523(a)(8) in 1998, Congress implemented the William D. Ford Federal Direct Loan Program, Pub.L. No. 103-66, tit. IV(A) ch. 1, 107 Stat. 312 (1993) (codified at 20 U.S.C. § 1087a-h (2000)), which established four repayment options for student loan debtors, including the ICRP plan set forth at 34 C.F.R. § 685.208. Despite Congress' proven willingness to amend § 523(a)(8) to *788 further restrict the dischargability of student loan debt, and in spite of the availability of the ICRP option for repayment of student loans, Congress chose to continue the undue hardship exception to nondischargeability. Indeed, provisions in the House and Senate bills designed to make student loans conclusively nondischargeable were stripped from the bills in favor of maintaining § 523(a)(8)'s undue hardship exception to nondischargeability of student loan debt. Ante at 784.
Since 1976, Congress has demonstrated its willingness to restrict the ability to discharge student load debt, but has refused to abrogate § 523(a)(8)'s undue hardship provision. It expressly declined to do so when the ICRP was established, even though it offers a less onerous means by which student loan debt may be managed. Based on this legislative history, I conclude Congress' express refusal to further circumscribe or eliminate § 523(a)(8) demonstrates its continued viabilityeven when the ICRP is an available option. Notably,
Congress recently enacted the most sweeping reform of bankruptcy law since the enactment of the Bankruptcy Code in 1978. Yet Congress left § 523(a)(8)'s "undue hardship" language intact. Had Congress intended participation in the ICRPimplemented in 1994to effectively repeal discharge under § 523(a)(8), it could have done so. In addition, requiring enrollment in the ICRP runs counter to the Bankruptcy Code's aim in providing debtors a "fresh start." The debtor is encumbered with the debt for an additional twenty-five years, regardless of the length of the student loans.
In re Barrett,
This conclusion is also supported by decisions from every circuit to have addressed this issue. See, e.g., In re Mosley,
[T]he William D. Ford Program is no silver bullet for student loan creditors to avoid discharge of student loan debts owing to undue hardship if the creditors... demonstrate that a particular debtor did in fact know about and understand such alternatives for resolving student loan debts.
Cheney v. ECMC,
Similarly,
*789 The defendants' argument is nothing less than a per se rule that there can never be a discharge of a student loan for an undue hardship where the debtor is eligible for the Income Contingent Repayment Plan. This cannot be right. The Income Contingent Repayment Plan cannot trump the Congressionally mandated individualized determination of undue hardship. The Income Contingent Repayment Plan is but one factor to be considered in determining undue hardship, but it is not determinative.
In re Korhonen,
And finally,
"[W]hile consideration of the debtor's repayment options is one factor that a court may consider in determining "undue hardship" under the totality-of-the-circumstances, I am unaware of any decision which holds that the availability of the William D. Ford Federal Direct Loan Program to a debtorincluding its "income contingent repayment plan" option by itself requires a finding that it would not be an "undue hardship" to repay the student loan obligation."
In re Bettie,
The reasoning of these casescoupled with a dearth of contrary precedentconvinces me the ICRP is but one factor for consideration when applying the totality-of-the-circumstances test, and does not act as an absolute barrier to the discharge of student loan debt under § 523(a)(8). Further, overemphasizing the impact of the ICRP would be antithetical to the exercise of judicial discretion mandated by § 523(a)(8) and reflected in our totality-of-the-circumstances analysis. Accordingly, I concur in Judge Smith's conclusion that the ICRP is merely a factor to consider under our court's totality-of-the-circumstances test.
Applying these principles, I dissent from majority's rejection of the bankruptcy court's findings of fact and application of those facts to its § 523(a)(8) analysis.
In a bankruptcy appeal, this court sits as a second court of review; we therefore apply the same standards of review to the bankruptcy court's decision as the district court does. We review the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. The question of whether declining to discharge the debts would pose an undue hardship ... is a question of law, which we review de novo. Subsidiary findings of fact on which the legal conclusion is based are reviewed for clear error.
In re Reynolds,
For a finding to be clearly erroneous, it "must strike the reviewing court as more than just maybe or probably wrong; it must strike the court as wrong with the force of a five-week-old, unrefrigerated dead fish." In re Papio Keno Club,
The bankruptcy court found Jesperson had reasonable monthly expenses of $2857. This amount included $1000 for rent, $1000 in child support for two children, $325 for food, and $431.66 for vehicle maintenance, gas, and parking. To this amount, the court added $100 for vehicle insurance and *790 additional vehicle maintenance. With the exception of the extra $100 in vehicle-related costs, the expenses determined by the bankruptcy court find adequate record support and are not clearly erroneous.
Jesperson has previously paid $700 per month for rent, and, although at the time of trial he was living in a relative's basement and anticipated spending only $500, the court concluded his future rent expenses would increase, and in the relevant urban housing market, $1000 was reasonable. Further, Jesperson was court ordered to pay $500 in monthly child support for one child, and, though no order was in place as to the second child, when financially able, he voluntarily paid child support for the second. As for the vehicle expenses, Jesperson owned a 1988 truck with over 200,000 miles on the odometer. He used the vehicle to drive to work, for visiting his children (one in Duluth), and to regularly attend AA meetings several times per week. These undisputed findings are not clearly erroneous and demonstrate the reasonable nature of Jesperson's claimed expenses. I reject the majority's assertion that Jesperson failed to demonstrate good faith because he aspired to live somewhere other than his brother's basement. I also reject the majority's implicit conclusion that in the absence of a court order, Jesperson's contributions toward the support of his second child cannot be credited. Furthermore, the court noted Jesperson's projected monthly budget failed to account for medical or dental expenses, savings or retirement, and he owned no assets with more than nominal value. Thus, I conclude it was not clearly erroneous to find Jesperson proved reasonable monthly expenses of at least $2750. Indeed, the bankruptcy court's belief that the expenses were understated is almost certainly true.
The district court also considered Jesperson's past, current, and future earning capacity. At the time of trial Jesperson was enjoying an unprecedented period of prosperity. For approximately four months, he had been earning the annual equivalent of $48,000, working in a temporary legal position. Prior to that, Jesperson took and abandoned two full-time legal jobs, as well as a third through a temp agency, and proved a failure at starting his own law practice. His adjusted gross income for the years leading up to his bankruptcy petition included: $13,207 in 2003; $14,828 in 2004; $21,584 in 2005; and $13,692 in 2006. The bankruptcy court found "his employment history does not openly demonstrate substantive ineptitude, [but] his record of work experience is besmirched by a patent lack of ambition, cooperation and commitment." These facts are undisputed, and based thereon, it was not unreasonable for the court to conclude "the expectation that Jesperson maintain or increase his current rate of pay is one part rational to two parts imagination."
The bankruptcy court next factored the availability of the ICRP into its totality-of-the-circumstances analysis. Assuming Jesperson maintained his current level of earningsan assumption bordering on fancifulhis ICRP payment for a family of three (himself and two minor dependents) would be $514. The bankruptcy court, however, found, based on Jesperson's after-tax adjusted gross income and reasonable monthly expenses, his approximate monthly surplus was only $55. Thus, he was financially unable to make the ICRP payment. Moreover, even assuming Jesperson made a nominal monthly ICRP payment, i.e., $5 or even $0, the court concluded he would 1) never reduce the principal, 2) be unable to cover unexpected expenses, e.g., unfunded medical, dental, or vehicle replacement costs, and 3) never contribute to a savings or retirement plan. *791 Instead, Jesperson would remain saddled with the debt, "only to look forward to a quarter century of negative amortization, the burden of poor credit and a cash-only lifestyle...."
Once again, the bankruptcy courts findings are adequately supported by the record. But for a miscalculation with respect to the ICRP's ten percent cap on capitalization of unpaid interestwhich the majority seizes upon as if it has some material effect on Jesperson's dismal financial picturethe facts, and the court's analysis thereof, demonstrate that continuing to carry the undischarged student loan debt will relegate Jesperson and his two minor children to a life punctuated by constant financial crisis and impoverishment.
The court characterizes Jesperson as the "paradigmatic example of a student loan debtor for whom ICRP eligibility ... requires a conclusion of no hardship." Ante at 782. The opinion, however, suggests a broader holding that would draw into its net all student loan debtors who are eligible for ICRP participation. I understand the court's frustrationJesperson is not a sympathetic figure. After availing himself of the federal student loan program and amassing a large debt, he has failed to achieve any demonstrable success in his chosen profession, and has ignored his promise to repay the debt. Nonetheless, bankruptcy law does not only provide relief to the well-intentioned or to hapless victims of circumstance. Even malfeasants may seek a fresh start. Today's decision punishes Jesperson for his financial mismanagement and is the paradigmatic example of bad facts leading to bad law.
For the reasons stated herein, I respectfully dissent.
NOTES
Notes
[1] Most circuits apply a three-part undue hardship test adopted in Brunner v. N.Y. State Higher Educ. Servs. Corp.,
[2] The Department of Education describes the ICRP as a plan that allows a borrower "to meet your Direct Loan obligations without causing undue financial hardship." Repayment Plans, Federal Student Aid, http://www. ed.gov/offices/OSFAP/DirectLoan/RepayCalc/dlindex2.html (last visited May 11, 2009).
[3] Our totality-of-the-circumstances test differs from the three-prong test set forth in Brunner v. N.Y. State Higher Education Services Corporation,
[U]nder a Brunner analysis, if the bankruptcy Court finds against the Debtor on any of the three prongs of the test, the inquiry ends and the student loan is not dischargeable. We prefer a less restrictive approach to the "undue hardship" inquiry. We are convinced that requiring our bankruptcy courts to adhere to the strict parameters of a particular test would diminish the inherent discretion contained in § 523(a)(8)(B).