Susan Shaffer v. Iowa Student Loan Liquidity

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 12-6010
In re: *
*
Susan M. Shaffer, *
*
Debtor. *
*
Susan M. Shaffer, * Appeal from the United States
* Bankruptcy Court for the
Plaintiff-Appellee, * Southern District of Iowa
*
v. *
*
United States Department of *
Education, *
*
Defendant, *
*
Iowa Student Loan Liquidity *
Corporation, *
*
Defendant-Appellant, and *
*
Educational Credit Management *
Corporation, *
*
Intervenor-Defendant. *
Submitted: August 28, 2012
Filed: October 30, 2012
Before KRESSEL, Chief Judge, SCHERMER and NAIL, Bankruptcy Judges.
NAIL, Bankruptcy Judge.

Iowa Student Loan Liquidity Corporation ("Iowa Student Loan") appeals the
December 1, 2011 judgment of the bankruptcy court determining the educational1
loan debts Debtor Susan M. Shaffer ("Debtor") owed to the United States Department
of Education, Iowa Student Loan, and Educational Credit Management Corporation
were discharged. We affirm.2
BACKGROUND
Debtor is an unmarried woman in her mid-thirties. She has no dependents.
Since her mid-teens, Debtor has suffered from a variety of mental health issues,
including eating disorders, depression, self-harm (cutting), and anxiety. These mental
health issues have adversely affected both her academic endeavors and her ability to
maintain employment.
In 1994, Debtor enrolled at the University of Northern Iowa. At the end of the
school year, she returned to Iowa City to be closer to her family. In August 1995, she
enrolled at the University of Iowa. She attended that school, as either a full-time
student or a part-time student, until 2002, when she received a bachelor of arts degree
in psychology. Debtor also attended Kirkwood Community College from time to
time to obtain pre-pharmacy credits and to maintain her coverage under her parents’
health insurance. In March 2007, she enrolled at the Palmer College of Chiropractic
Medicine. She attended that school until June 2008. Debtor left without completing
her degree when she realized she would never be able to repay her outstanding
student loans. To fund her education at these various institutions, Debtor obtained
educational loans totaling approximately $204,525.00, which includes $57,489.11
The Honorable Anita L. Shodeen, United States Bankruptcy Judge for the1
Southern District of Iowa.
Neither the United States Department of Education nor Educational Credit2
Management Corporation appealed the bankruptcy court's judgment.
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Debtor owed to the United States Department of Education, $47,900.00 she owed to
Educational Credit Management Corporation, and $99,136.00 she owed to Iowa
Student Loan.3
After leaving the Palmer College of Chiropractic Medicine, Debtor again
returned to Iowa City to live with her mother. In November 2008, she began working
in the Women's Health Clinic at the University of Iowa. In August 2009, she left that
job and began working as an accounts receivable specialist for Precision Revenue
Strategies. While there, Debtor suffered from depression, which caused her to take
two medical leaves of absence. In 2010, following her second leave of absence,
Debtor believed she would eventually be fired, so she left that job, too. While she
sought another job, Debtor met her living expenses by taking temporary jobs, cashing
in her retirement funds, utilizing her disability insurance payments, and accepting
contributions from other members of her family. In July 2011, she began working in
the radiation oncology department at the University of Iowa.
Debtor filed a petition for relief under chapter 7 of the bankruptcy code on
April 15, 2010. On July 23, 2010, she filed a complaint to determine the
dischargeability of her educational loan debts. The matter was tried, and on
December 1, 2011, the bankruptcy court entered a memorandum decision in which
it concluded excepting the educational loan debts Debtor owed to the United States
Department of Education, Iowa Student Loan, and Educational Credit Management
Corporation from discharge would impose an undue hardship on Debtor and a
judgment determining those debts were discharged. On February 1, 2012, Iowa
Student Loan filed a timely notice of appeal.4
These figures do not include accruing interest.3
The time for all parties to appeal the bankruptcy court's judgment ran from4
January 18, 2012, the date on which the bankruptcy court entered an order denying
Educational Credit Management Corporation's timely motion to amend the
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STANDARD OF REVIEW
We review de novo the bankruptcy court's conclusion that excepting Debtor's
educational loan debts from discharge would impose an undue hardship on Debtor.
Walker v. Sallie Mae Servicing Corp. (In re Walker), 650 F.3d 1227, 1230 (8th Cir.
2011) (citing Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 553 (8th
Cir. 2003)). We review for clear error the findings of fact on which the bankruptcy
court based its conclusion. Id. (citing Reynolds v. Pa. Higher Educ. Assistance
Agency (In re Reynolds), 425 F.3d 526, 531 (8th Cir. 2005)). We will not overturn
the bankruptcy court's findings of fact "unless, after reviewing the entire record, we
are left with the definite and firm conviction that a mistake has been made." Id.
(citing Cumberworth v. U.S. Dept. of Educ. (In re Cumberworth), 347 B.R. 652, 657
(B.A.P. 8th Cir. 2006)).
DISCUSSION
If "excepting such debt from discharge . . . would impose an undue hardship
on the debtor and the debtor's dependents," a discharge under 11 U.S.C. § 727
discharges the debtor from a debt for an educational loan "made, insured, or
guaranteed by a governmental unit, or made under any program funded in whole or
in part by a governmental unit or nonprofit institution." 11 U.S.C. § 523(a)(8). The
debtor must establish undue hardship by a preponderance of the evidence. Walker,
650 F.3d at 1230. In determining whether the debtor has met this burden, the
bankruptcy court must consider the totality of the debtor's circumstances, taking into
account:
(1) the debtor's past, present, and reasonably reliable future
financial resources; (2) a calculation of the reasonable
bankruptcy court's judgment. Fed.R.Bankr.P. 8002(b).
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living expenses of the debtor and her dependents; and (3)
any other relevant facts and circumstances surrounding the
particular bankruptcy case.
Id. (citing Long, 322 F.3d at 554).
In its memorandum decision, the bankruptcy court carefully considered and
addressed each of the foregoing factors. On appeal, Iowa Student Loan raises three
issues: (1) whether the bankruptcy court erred in not separately evaluating each of
its 13 loans to determine whether each such loan imposed an undue hardship on
Debtor; (2) whether the bankruptcy court erred in finding Debtor's income limitations
were not self-imposed; and (3) whether the bankruptcy court erred in considering,
without the aid of expert testimony, the effect of Debtor's mental health issues on her
ability to obtain and maintain employment.5
With respect to the first issue, we have held where more than one educational
loan is involved, the bankruptcy court must separately evaluate each under §
523(a)(8): "We hold that the bankruptcy court's application of § 523(a)(8) to each of
[debtor's] educational loans separately was not only allowed, it was required."
Andresen v. Nebraska Student Loan Program, Inc. (In re Andresen), 232 B.R. 127,
137 (B.A.P. 8th Cir. 1999) (emphasis added). While the bankruptcy court's
memorandum decision does not clearly set forth a separate evaluation of each of
Debtor's educational loans, Iowa Student Loan did not raise this issue in the
bankruptcy court. Consequently, we will not consider it on appeal. Edwards v.6 7
We have listed the issues in the order in which Iowa Student Loan listed them5
in its Statement of the Issues, not in the order in which it discussed them in the
Argument portion of its briefs.
Educational Credit Management Corporation, which is not a party to this6
appeal, raised the issue of whether each of Debtor's educational loans needed to be
separately evaluated for the first time in its motion to amend the bankruptcy court's
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Edmondson (In re Edwards), 446 B.R. 276, 280 (B.A.P. 8th Cir. 2011) (citations
therein).
In discussing this issue in its briefs, however, Iowa Student Loan renews two
arguments it did make in the bankruptcy court. Both merit discussion regardless of
whether Debtor's educational loans are evaluated separately or collectively.
judgment. The bankruptcy court denied that motion, in part because no one raised the
issue at trial, and no one appealed the bankruptcy court's order denying it.
Were we to do so, however, the outcome in this case would likely be the same.7
While the bankruptcy court did not expressly state Debtor could not make any
payment on any of her educational loan debts, based on the evidence in the record,
that is the fairest reading of the bankruptcy court's memorandum decision. Debtor
testified her monthly take-home pay would be $1,500 to $1,600. This was the only
evidence of her take-home pay presented to the bankruptcy court: Debtor had not yet
been paid by her new employer and thus had not received a pay stub or an earnings
statement. Iowa Student Loan now characterizes Debtor's testimony as a "vague
guess[ ]," but it did not object to her testimony on this point on that or any other basis,
request a continuance until a pay stub or an earnings statement could be produced, or
offer any evidence to the contrary. Debtor also provided evidence–through her
testimony regarding an exhibit that was admitted by the bankruptcy court but was not
included in the record on appeal–supporting the bankruptcy court's finding that
Debtor's reasonable monthly living expenses comprised $310 for lot rent (increasing
to $320 in October 2011), $150 for utilities, $109 for cell phone and internet access,
$104 for automobile and renter's insurance, $100 for transportation costs, $400 for
food, $100 for medical and dental expenses, $75 for recreation, $50 for clothing, and
$300 for other regular expenses including personal care, housekeeping supplies,
home maintenance, furnishings, and pet care (a total of $1,708 beginning in October
2011). Iowa Student Loan has not challenged the bankruptcy court's finding that
Debtor's monthly living expenses are reasonable. Based on this evidence, the
bankruptcy court found Debtor's monthly disposable income was less than $100, a
sum the bankruptcy court subsequently described as "minimal" in its order denying
Educational Credit Management Corporation's motion to amend the bankruptcy
court's judgment. This finding is not clearly erroneous: By our reckoning, Debtor's
reasonable monthly expenses exceed her monthly disposable income by $100 to $200.
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Specifically, Iowa Student Loan argues Debtor admitted having the ability to
pay $350 to $400 per month on her student loans. This oversimplifies Debtor's
testimony. Debtor testified she could "probably" make such a payment, but even
without the benefit of observing her demeanor on the witness stand–a benefit the
bankruptcy court of course had–it is readily apparent from even the most casual
reading of the transcript she was not confident she could do so. Moreover, Debtor
was not asked to–and did not–explain how she could possibly make such a payment,
given her current monthly take-home pay and her current reasonable monthly living
expenses. Consequently, we do not view her "admission" as evidence that would
require the bankruptcy court to find Debtor could make such a payment without
undue hardship. Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564,
574 (1985) (citations therein) ("Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”).
Iowa Student Loan also argues Debtor's spending more in the past for clothing
and eating out than the amount the bankruptcy court found reasonable going forward
further demonstrates Debtor's ability to make payments on her educational loans. We
disagree. At most, what Iowa Student Loan describes as Debtor's "alarming[ly]
profligate" spending in the past demonstrates Debtor–like many, if not most, other
debtors–may have made unwise spending decisions and may have lived beyond her
means. This does not mean the bankruptcy court should have expected Debtor to
continue to live beyond her means to make payments on her educational loans in the
future. Consequently, we do not view Debtor's past spending for clothing and eating
out–even if "alarming[ly] profligate"–as evidence that would require the bankruptcy
court to find Debtor could make payments on her educational loans without undue
hardship in the future. Id.
With respect to the second issue Iowa Student Loan raises on appeal, the
Eighth Circuit Court of Appeals has held "[a] debtor is not entitled to an undue
hardship discharge of student loan debts when his current income is the result of self-
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imposed limitations, rather than lack of job skills[.]" Educ. Credit Mgmt. Corp. v.
Jesperson (In re Jesperson), 571 F.3d 775, 782 (8th Cir. 2009). Iowa Student Loan
argues Debtor's current income is the result of a self-imposed limitation, i.e., her
decision to drop out of chiropractic school. This argument fails for two reasons.8
First, it presupposes–with no support in the record– had Debtor not dropped out: (1)
she would have graduated; (2) she would have found employment as a chiropractor;
and (3) she would have earned enough as a chiropractor to generate sufficient net
income to pay off not only her current educational loan debts, but also the additional
educational loan debts she would have incurred in completing her degree. Second,
and more importantly, Debtor testified regarding both her decision to apply to
chiropractic school and her subsequent decision to drop out. Inasmuch as it found
Debtor's income limitations were not self-imposed, the bankruptcy court at least
implicitly accepted Debtor's explanation of her decisions. Giving due regard to the
opportunity of the bankruptcy court to judge Debtor's credibility, Fed.R.Bankr.P.
8013, we cannot say the bankruptcy court's finding was clearly erroneous.
Finally, with respect to the third issue Iowa Student Loan raises on appeal, we
have held expert testimony is not required in cases such as the one before us.
The bankruptcy court determined that [debtor] could
endure only work that was essentially ministerial and that
she suffered from the stress of increased responsibility due
to a lack of self-confidence. While there was no evidence
that the debtor was clinically disabled or maladjusted, the
bankruptcy court expressly found that [debtor] was not fit
for the higher responsibility and higher paying positions
Iowa Student Loan contends– contrary to the sage advice of both Will Rogers,8
who said, "When you find yourself in a hole, stop digging," and Kenny Rogers, who
sang, "You got to . . . know when to fold 'em"–Debtor should have taken out more
educational loans in the hope this would enable her to pay off her existing educational
loans.
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she tried and then left. There is no reason to view the trial
court's findings as unreliable merely because no expert
evidence was introduced. The record offers no reason to
suggest that the bankruptcy court made its decision without
due consideration. The bankruptcy court took evidence,
judged the debtor's credibility, and applied the proper
totality of the circumstances test. Its finding of undue
hardship is not clearly erroneous.
Cline v. Illinois Student Loan Assistance Ass'n (In re Cline), 248 B.R. 347, 350
(B.A.P. 8th Cir. 2000) (emphasis added). Iowa Student Loan argues the bankruptcy
court "speculated" about Debtor's mental health issues and insists the bankruptcy
court should not have considered Debtor's mental health issues without the aid of
expert testimony. For the reasons discussed in Cline, we disagree. The bankruptcy9
court heard Debtor's testimony, judged her credibility, and accepted her description
of her mental health issues and their effect on her ability to maintain employment.
Iowa Student Loan offered no testimony–expert or otherwise–or other evidence to the
contrary. Consequently, we cannot say the bankruptcy court's finding was clearly
erroneous.
CONCLUSION
Having reviewed de novo the bankruptcy court's conclusion that excepting
Debtor's student loan debts from discharge would constitute an undue hardship and
having reviewed for clear error the findings of fact on which the bankruptcy court
based its conclusion, we affirm the judgment of the bankruptcy court determining the
In support of its position, Iowa Student Loan cites us to two bankruptcy cases,9
one from the Northern District of Ohio and the other from the Western District of
Michigan. While we respect the opinions of bankruptcy courts from other circuits,
we are not bound by them. We are, however, bound by our own opinions, including
Cline.
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educational loan debts Debtor owed to the United States Department of Education,
Iowa Student Loan, and Educational Credit Management Corporation were
discharged.
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