The courts in the united states must follow an unified standard that reflects three things: (1) Congress’s intent in placing the “undue difficulty” standard within the evaluation of discharging academic debt, (2) the goal of the Bankruptcy Code, and (3) the necessity for persistence and fairness within the court system. Research on individual cognition demonstrates that judges bring different impacts, such as for instance age, sex, generation, faith, and values using them to the process that is decision-making cons 193 Negowetti, supra note 179, at 722–23. While there are numerous means uniformity and consistency within the standard may be accomplished, this Comment takes the positioning that tools of statutory interpretation offer an opportunity for reconceptualizing “undue difficulty” in light for the used in the present bulk test. By reconceptualizing the conventional in a fashion that is in keeping with the utilization of the conventional throughout other types of federal legislation, my hope is the fact that bankruptcy courts will employ a regular that acknowledges the worth in getting advanced schooling and provides an equal chance for 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 Student Education Loans, 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 pr release, U.S. Department of Education Releases National scholar Loan FY 2014 Cohort Default Rate (Sept. 27, 2017); see additionally William Elliott & Melinda Lewis, Student Debt Impacts 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 Undue Hardship Exception for student education loans in Bankruptcy, 34 U.C. Davis L. Rev. 221, 224 (2000).
6 id that is see at 225.
8 11 U.S.C. § 523(a)(8) (2018).
9 Roger Roots, the learning student 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 scholar Loan Debt, 53 Santa Clara L. Rev. 329, 330–31 (2013).
13 Roots, supra note 9, at 512.
14 Austin, supra note 12, at 363.
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) ( taking a totality-of-the-circumstances-approach); see additionally Robert F. Salvin, student education loans, Bankruptcy while the Fresh Start Policy: Must Debtors be Impoverished to Discharge Educational Loans? , 71 Tul. L. Rev. 139, 149 (1996) (saying you can find as numerous tests for undue difficulty as you can 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 even though “both the Tenth and Eleventh Circuits” have purportedly “adopted identical variations of this Brunner test, ” “the Brunner test as adopted by the Eleventh Circuit will not are the 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 nature that is discretionary interpretation of undue difficulty under a totality of this circumstances approach does, nevertheless, consider 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 needs to be “exceptional and extreme”).
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 merely of present failure to cover but in addition of extra, exemplary circumstances, highly suggestive of continuing incapacity to settle over a long 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 build sufficient earnings to “pay off” the mortgage and keep 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 with a certainty of hopelessness as to your possibility for payment for the future that is indefinite. Mere inconvenience, austere spending plan, economic trouble and insufficient current work aren’t grounds for discharging academic debts for undue difficulty”); In re Mathews, 166 B.R. At 943, 945 (Bankr. D. Kan. 1994) (by making use of that is“undue a modifier, Congress “meant that ordinary ‘garden variety’ hardship wouldn’t normally suffice, ” the debtor “must show that the mixture associated with the low earnings and exemplary circumstances is really serious and principal site oppressive that there surely is not a way that the debtor will ever have the ability to repay your debt and keep maintaining a small standard of living”); In re Rappaport, 16 B.R. 615, 617 (Bankr. D.N.J. ) (needing “total incapacity now plus in the near future to pay for one’s debts for reasons perhaps maybe perhaps maybe not in the control over the patient debtor”). See additionally Pa. Greater Educ. Assistance Agency v. Faish (In re Faish), 72 F. 3d 298, 305–06 (third Cir. 1995) (debtor entitled to inhabit something significantly more than “abject poverty, ” must show “she cannot keep a small quality lifestyle if forced to settle her loans” which will be a showing of something a lot 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 not upon whether or not the debtor possesses an ‘adequate’ earnings but instead perhaps 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 many likely near-future for a debtor”).
30 Robert C. Cloud & Richard Fossey, Facing the learning student Debt Crisis: Restoring the Integrity regarding the Federal scholar Loan Program, 40 J. C. & U. L. 467, 496 (2014).