Dischargeability — 523(a)(8)

In re Lewis, 506 F.3d 927 (9th Cir. 2007)
    The 1998 amendments to § 523(a)(8) eliminating the seven-year exception to nondischargeability applied retroactively to student loans taken out prior to 1998 in a bankruptcy filed after the 1998 amendments.

In re Carnduff, 367 B.R. 120 (9th Cir. BAP 2007)
    A bankruptcy court has the power to grant a partial discharge of a student loan even when the debtor’s earning capacity is expected to improve, if that improvement will be insufficient for the debtor to pay the full balance without an undue hardship.  But the burden is upon the debtor to establish undue hardship as to any portion of the debt sought to be discharged.

In re McBurney, 357 B.R. 536 (9th Cir. BAP 2006)
    Postpetition consolidation loan extinguished the debtor’s liability on prepetition student loans and is not vulnerable to attack under § 523(a)(8).

In re Mason, 464 F.3d 878 (9th Cir. 2006)
    Debtor, who was an attorney, failed to meet the good faith branch of the Brunner test, where, among other things, he did not attempt to take the bar exam a second time.

In re Nys, 446 F.3d 938, 941 (9th Cir. 2006)
    Second prong of the Brunner test “does not require an exceptional circumstance beyond the inability to pay now and for a substantial portion of the loan’s repayment period.”  In addition, “. . .the debtor cannot purposely choose to live a lifestyle that prevents her from repaying her student loans.  Thus, the debtor cannot have a reasonable opportunity to improve her financial situation, yet choose not to do so.”  446 F.3d at 946.

In re Howe, 319 B.R. 886 (9th Cir. BAP 2004)
    Application of IRS collection standards for determining whether the debtor could maintain a minimal standard of living under the Brunner test was erroneous.

In re Hawkins, 317 B.R. 104 (9th Cir. B.A.P. 2004), aff’d, 469 F.3d 1316 (9th Cir. 2006)
    Contract of admission, whereby debtor agreed to practice medicine in Ohio in exchange for subsidies for her education, was not an educational loan or benefit.

In re Birrane, 287 B.R. 490 (9th Cir. BAP 2002)
    By failing to establish that she could not earn more money in future years, and failing to establish that she had maximized her income by seeking part time work and attempted to negotiate a repayment schedule under the Ford program, debtor failed to meet the second and third branches of the Brunner test.

In re Saxman, 325 F.3d 1168 (9th Cir. 2003)
    Bankruptcy court has the power under § 105 to partially discharge a student loan, but only the portion which the debtor has proven imposes an undue hardship.

In re Blair, 291 B.R. 514 (9th Cir. B.A.P. 2003)
    Court cannot grant partial discharge of a student loan unless it first finds undue hardship.

In re Rifino, 245 F.3d 1083 (9th Cir. 2001)
    Student loan not dischargeable where debtor failed to show that hardship would persist for a significant portion of the repayment period.

In re Drysdale, 248 B.R. 386 (9th Cir. B.A.P. 2000), aff’d, 2 Fed.Appx. 776 (9th Cir. 2001)
    Case law holding that student loan consolidation must be five years old to be eligible for discharge was applied retroactively.

In re Bernal, 207 F.3d 595 (9th Cir. 2000)
    Assignee of student loan could not intervene, either permissively or as of right, in student loan dischargeability action, where default was entered before assignment.  Assignee’s only remedy was to obtain a substitution under Rule 25(c).  

In re Nascimento, 241 B.R. 440 (9thCir. B.A.P. 1999)
    Repayment of student loans would not result in undue hardship where debtor’s budget retained ample room for “belt-tightening” and prospective child support obligation would last no more than several years.

In re Pena, 155 F.3d 1108 (9th Cir.  1998)
    Under Bankruptcy Code, impossibility of both repaying government-guaranteed student loan and maintaining minimal living standard suffices to establish “undue hardship” exception to non-dischargeability by debtor who has tried to pay off loan.

In re Manriquez, 207 B.R. 890 (9th Cir.  B.A.P. 1996)
    Retroactive forbearance obtained more than seven years after student loans became due did not render loans nondischargeable

In re Thorson, 195 B.R. 101 (9th Cir.  B.A.P. 1996)
    Post due-date student loan deferment constitutes suspension of repayment deductible from repayment period when determining dischargeability of student loan debt

In re Pilcher, 149 B.R. 595 (9th Cir.  B.A.P. 1993)
    Statute applies even though loan only partially-funded by non-profit institution

In re Gustafson, 934 F.2d 216 (9th Cir.  1991)
    State is immune from money damages for stay violation under the 11th Amendment.