Dеbtor-appellant Craig Hanson filed for Chapter 13 bankruptcy relief in November 1992, listing only his unsecured student loan debt of approximately $31,500 on his Chapter 13 schedules. After Hanson’s Chapter 13 plan was confirmed without objection, Hanson made monthly payments of $135 ovеr 60 months on his student loan, and the bankruptcy court entered an order discharging his debt in September 1997. The discharge order was erroneous because the Bankruptcy Code makes student loan debt nondischargeable absent a showing of undue hardship by the debtor, and Hansоn had made no such showing. Despite the error, the order went unchallenged until May 2003, when creditor Educational Credit Management Corporation (“ECMC”) filed a motion for relief from the discharge order in the bankruptcy court. The bankruptcy court granted ECMC’s motion, and the district court affirmed. We affirm.
I. Background
Between 1980 and 1987, Hanson borrowed money from Great Lakes Higher Education Corporation (“Great Lakes”) to finance his undergraduate and graduate education at the University of Wiseonsin-River Falls. Hanson defaulted on the student loan debt in July 1989, and Grеat Lakes obtained a default money judgment against him in December 1992 in the amount of $31,583.77. In November 1992, Hanson filed a voluntary petition (the “Petition”) for Chapter 13 relief. After receiving notice of the Petition, Great Lakes moved to vacate the default judgment against him, with the right to reopen if the bankruptcy was dismissed. The state court granted Great Lakes’ motion.
Great Lakes timely filed a proof of claim in the amount of $35,531.08. Hanson’s Chapter 13 Plan (the “Plan”) proposed to pay $135 monthly to Great Lakes over 60 months, which was 19% of the clаim. The Plan was confirmed without objection. At no time did Hanson file an adversary pro *484 ceeding to determine the dischargeability of his student loan.
Hanson completed payments under the Plan, and the bankruptcy court entered a discharge order on September 11, 1997. The order provided, in relevant part:
1. Pursuant to 11 U.S.C. Section 1328(a), the debtor is discharged from all debts provided for by the plan or disallowed under 11 U.S.C. Section 502, except any debt:
(c) for a student loan or educational benefit overpayment as specified in 11 U.S.C. Section 523(a)(8) in any case in which discharge is granted prior to October 1, 1996.
Pursuant to the terms of the order, Hanson’s student loan debt was discharged because the discharge was granted after October 1, 1996. Unfortunately, the discharge order reflected an October 1, 1996 sunset provision that already had been repealed by Congress. The result of the error was that Hanson’s student loan debt was discharged without any showing of undue hardship, which is required by 11 U.S.C. § 523(a)(8) prior to the discharge of student loan debt.
No objection to the error was raised until May 2003, when ECMC, Great Lakes’ successor-in-interest, filed a motion for relief from the order under Rule 60(b)(4) of the Federal Rules of Civil Procedure. The bankruptcy court granted ECMC’s motion on the ground that the discharge order was void because it violated ECMC’s due process rights. 1 The district court affirmed.
II. Discussion
A. Standard of Review
Although we generally review a lower court’s Rule 60(b) decisions for abuse of discretion,
Blaney v. West,
B. Discharge of Student Loans
Student loan debts are presumptively nondischargeable in bankruptcy proceedings. 11 U.S.C. § 523(a)(8). Debtors can ovеrcome this presumption by making an affirmative showing that excepting the student loan debt from discharge would impose an undue hardship on the debtor or the debtor’s dependents.
Id.
The Bankruptcy Rules require the debtor to file an “adversary proceeding” against the hоlder of the student loan debt to make such a showing. Fed. R. BiírtCY. P. 4007(d), 7001(6);
Tennessee Student Assistance Corp. v. Hood,
A number of student loan debtors have circumvented this process by inserting undue hardship findings or student loan or loan interest dischargе provisions in their proposed plans.
See, e.g., In re Banks,
Hanson falls into the latter category. His attorney did not include an undue hardship finding or mention the discharge of Hanson’s student loan debt in the proposed plan.. Nevertheless, Hanson’s failure to file an adversary proceeding in conjunction with his bankruptcy is puzzling. The only debt listed was his presumptively nondischargeable student loan debt and he did not initiate an adversary proceeding in an effort to overcome the presumption. It may be that Hanson’s attorney was unaware that student loan debt is nondis-chargeable in the absence of a showing of undue hardship at an adversary proceeding or, as the district court surmised, that the Plan was proposed in the hope that Congress would repeal § 523(a)(8) and render Hanson’s debt dischargeable. Regardless of his intentions, Hanson received a windfall: The bankruptcy court discharged his student loan debt without any showing of undue hardship.
We must decide whether Hanson gets to keep his windfall due to the passage of time without any challenge from ECMC or whether entry of the discharge order violated ECMC’s due process rights so that the passage of time is immaterial. Fed. R. Crv. P. 60(b) (no time limit on relief from judgment or order if judgment or order is void);
Robinson Eng’g Co. Pension Plan & Trust v. George,
In a recent student loan discharge by declaration case, the Tenth Circuit retreаted from its holding in Andersen and opined that Andersen was wrongly decided and should be reconsidered. Poland v. Educ. Credit Mgmt. Corp., 382-F.3d 1185 (10th Cir.2004). The debtor in Poland proposed a plan that purported to discharge her student loan debt if no.timely proof of claim was filed. Id. at 1187. The plan was confirmed, the creditor filed its proof of claim one day late, the-untimely *486 claim was disallowed, and the student loаn debt was discharged without a showing of undue hardship. Id. The Tenth Circuit reversed, distinguishing Andersen because the plan under consideration did not contain a finding of undue hardship. Id. at 1188. Though the court did not overrule Andersen, it recognized the decision’s problematic consequences and questionable rationale:
The panel is of the view that Andersen was wrongly decided and should be reсonsidered. The unfortunate result of Andersen is that astute attorneys now insert student loan discharge language (after today, complete with a finding of undue hardship) hoping to achieve pre-clusive effect, notwithstanding: (1) Bankruptcy Code § 523(a)(8) explicitly precludes the dischаrge of a debtor’s student loan absent a showing of undue hardship, (2) Bankruptcy Rules specifically require a successful adversary proceeding, complete with individualized service of process, to establish undue hardship and discharge a student loan, and (3) lack оf the required notice under the Bankruptcy Rules proscribes preclu-sive effect.
Id. at 1189 n. 2.
We embrace the analysis and holding of the Fourth Circuit in
Banks
and the Tenth Circuit in
Poland,
and we respectfully disagree with the Ninth Circuit's decision in
Pardee.
The decisions in
Banks
and
Poland
have greater persuasive force because they are cоnsistent with Congress’ unmistakable intent to make student loan debt nondischargeable absent a showing of undue hardship. Moreover, cases like
Andersen
and
Pardee
permit debtors to flout both substantive and procedural provisions of the Bankruptcy Code and Rules through a meaningless incantatiоn of undue hardship in their proposed plans. Although we recognize the strong policy favoring finality of confirmation orders, due process entitles creditors to the heightened notice provided for by the Bankruptcy Code and Rules, and the dictates of due prоcess trump policy arguments about finality.
See Mullane v. Central Hanover Bank & Trust Co.,
The instant case is arguably distinguishable from the cases discussed above because Hanson benefitted from the bankruptcy court’s error rather than a discharge by declaration provision. However, the focus of our inquiry is on the process afforded to ECMC, and ECMC received as little process in this case as the creditors in
Banks
and
Poland.
Hanson’s failure to serve ECMC with a summons and an adversary proceeding complaint effectively denied ECMC the opportunity of presenting an objection prior to the adjudication of its rights.
See Mullane,
Hanson criticizes ECMC for sitting on its rights and failing to timely challenge the discharge order. However, student loan creditors justifiably rely on the explicit notice provisions of the Bankruptcy Code and Rules and have no reason to act until the service of a summons for an adversary proceeding apprises them that their property rights may bе affected. As noted by the Supreme Court in
Mullane,
due process requires “notice and the opportunity for hearing appropriate to the nature of the case” prior to deprivation of
*487
property rights, and the creditor in this case was denied the prе-deprivation notice and hearing that are required in bankruptcies involving student loans.
Mullane,
The recent Supreme Court decision in
Hood
does not compel a different result.
Hood,
We wish to emphasize that our holding is a narrow one. We do not hold that the due process clause requires the sеrvice of a summons and adversary proceeding prior to the discharge of student loan debt. Rather, “we merely confirm that where the Bankruptcy Code and Bankruptcy Rules require a heightened degree of notice, due process entitles a party to rеceive such notice before an order binding the party will be afforded preclusive effect.”
Banks,
III. Conclusion
For the foregoing reasons, we Affirm the decision of the bankruptcy court.
Notes
. Although Great Lakes was Hanson's initial student loan creditor, ECMC currently holds the student loan note and, for the sake of simplicity, we will refer to ECMC as the creditor throughout this opinion.