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Defining the Brunner test's three parts: time to set a national standard for all three parts to determine when to allow the discharge of federal student loans.

I. INTRODUCTION

Since the origin of the modern Bankruptcy Code, (1) when federal student loans were dischargeable in bankruptcy, it has become increasingly more difficult to discharge those loans in any bankruptcy proceeding. Federal student loans have become essentially non-dischargeable, absent the showing of undue hardship on the part of debtor to repay those loans. (2)

Most bankruptcy jurisdictions have incorporated a test in determining whether undue hardship exists from a case out of New York: Brunner v. New York Higher Education Services Corporation (In re Brunner). (3) The Brunner Test has since been adopted by most of the Circuit Courts as the undue hardship standard to determine whether a student/debtor can have their federal student loans discharged in a bankruptcy proceeding. (4) Congress has chosen never to define what exactly undue hardship means, even with all of the changes Congress has made to the Bankruptcy Code over the last forty years, and has decided to leave it for the bankruptcy courts to determine. (5) This has been the major reason, or cause, for the problems with the bankruptcy system regarding the discharge of federal student loans.

The current standard of determining whether a debtor can discharge their federal student loans has been judicially defined too harshly by most of the bankruptcy courts. The Brunner Test has to be both loosened and clearly defined by the Bankruptcy Code to accommodate the reality of the economic situation in this country. Taking the definition of "undue hardship" away from the judges and courts and clearly stating a standard within the Bankruptcy Code allows a uniform approach to the concept of discharging debtor's federal student loans. This article is not advocating a blanket-discharge policy, but one that will consider the original intent of the Bankruptcy Code, along with the reality of the country's situation.

This country is headed for a major problem with the amount of federal student loan debt that exists and we must prepare ourselves, as a nation, for what is going to be the reality of the situation. All of the present plans, as discussed below, are attempts to delay, avoid, or ignore the immense situation that is the federal student loan debt in this country. Federal student loan debt is not going away, nor is it shrinking, and it is only going to get worse if we continue to ignore the fact that the massive debt exists and many debtors cannot pay the federal student loans back.

II. FEDERAL STUDENT LOAN DEBTS AND PLANS TO REPAY THEM

Federal student loans have been around for a very long time, but not as they exist today. The federal student loan program began with the National Defense Education Act of 1958, which established the currently named Perkins Loans program. (6) Later, the Higher Education Act of 1965 established the Stafford Loan program, which provides federal funds for low-interest loans to students to attend college, and is the commonly known federal student loan program today. (7) Under these loan programs, the federal government insures or guarantees the lenders that the federal government will reimburse them for the student loans in the event of a student/debtor's default. (8) Over the decades, the amount of student loan debt students have been borrowing has increased at a dramatic pace. (9)

The federal student loan debt problem is ever-increasing and only getting worse. Every year the amount of student loan debt is growing and, along with it, the default rate on student loans is rising. (10) We, as a society, have to prepare for the eventual reality of the federal student loan default issue and the impact that it will have on our economy if the debts are not made dischargeable in bankruptcy proceedings. This could result in economic situations where people are not able to spend on consumer goods because they cannot relieve themselves of their federal student loan burden. (11) For example, some believe that this situation has already hindered the housing market recovery in this country. (12)

The current federal student loan debt is an astonishing one trillion dollars and growing. (13) This amount is greater than the debt on auto loans or even credit cards. (14) It is second only to the amount of mortgage debt in this country. (15) With the costs of higher education continuing to increase faster than the inflation rate, (16) this debt problem is not going to get better with the existing policies in place. The intent of the current policies is to appease, not to directly address, the situation. Granted, there are public policy concerns in allowing federal student loan discharges in bankruptcy--for example, that people would be getting free college educations--but nonetheless, we are going to be forced to address the Issue. (17)

There are many options and plans that have been presented to the American public, but they appear to be attempts to delay the inevitable federal student loan debt crisis that is looming. Politically, it seems to be a subject matter that no one politician wants to be the first to address. However, one promising recent plan that has been offered is the Income Contingent Repayment ("ICR") plan. (18) The ICR plan, which is only available for those whose student loans are with the federal government, (19) is designed to reduce the normal payment to an amount that can be affordable for the student/debtor. (20) If the debtor's adjusted gross income falls below the federal poverty level, the payment for their student loan would be zero for example. (21)

The maximum period for this particular plan is twenty-five years and any amount left after that time period would be forgiven or discharged without the need for a bankruptcy proceeding. (22) The twenty-five year period excludes any time for deferments, forbearances, and other approved situations that may apply. (23) Thus, there has to have been twenty-five years of actual payments made before any amount will be forgiven or discharged. However, after this period is completed, the balance of the federal student loans would be extinguished as if it had gone through a bankruptcy proceeding. Nonetheless, this ICR plan has affected bankruptcy courts' determinations of whether a debtor can have his or her federal student loans discharged as an "undue hardship."

For example, under the current "undue hardship" standard of the Brunner Test, failure to pursue the ICR repayment option when it would have lowered payments is cause for denying the discharge of federal student loans. (24) However, other courts have noted that a debtor being eligible for the ICR, and not participating, does not automatically prevent them from getting their federal student loans discharged through bankruptcy. (25) It seems to be, however, a strong determining factor that the courts have considered in determining "undue hardship." (26)

Another plan is called the Public Service Loan Forgiveness ("PSLF") Program. (27) This program will discharge any remaining debt the student/debtor may have after ten years of full-time employment in a public service job. (28) During this ten-year or 120 month payment period, the debtor has to have made payments consecutively and without default. (29) The remaining balance is forgiven without tax implications. (30)

The courts have held that if the debtor does not attempt to use this-plan, if available to the debtor, it shows a lack of good faith in attempting to repay their federal student loans. (31) The PSLF plan is different from the ICR in that the PSLF is specifically for those in public service. (32) The ICR plan is essentially for anyone who has federal student loans currently being held by the federal government.

Yet another repayment plan, and the most recent, is the Income-Based Repayment ("IBR") plan. (33) This plan is very similar to the ICR plan in that both programs cap the monthly payment at a percentage of the debtor's discretionary income. (34) The difference is the definition of discretionary income. (35) There is no minimum payment under the IBR plan. (36) For most borrowers, the IBR plan is better than the ICR plan because the IBR's definition of discretionary income caps the monthly payments at a much lower percentage of the debtor's income. (37) However, it must be noted that under the ICR or IBR plans, the debtor has to pay taxes on the amount of their federal student loans being discharged. (38) Furthermore, failure to apply for the IBR plan may be considered a lack of good faith efforts to repay federal student loans. (39)

The IBR plan is an excellent option for debtors that are having problems paying their federal student loans. The possibility of paying zero dollars each month will help those that need this option. There have been plenty of bankruptcy petitioners that qualified for zero dollars monthly payments under the IBR plan. (40) As with the other plans, failure on the debtor's part in attempting to establish a repayment plan using the IBR plan could cause the court not to discharge the student loans. (41) Nonetheless, this plan does allow the debtor to avoid paying their federal students loans, possibly in their entirety. This result sounds similar to the result of having them discharged in a bankruptcy proceeding.

While the plans mentioned above provide some relief, they are essentially trying to "mask" what the Bankruptcy Code could provide: relief from paying back the federal student loans. No matter what plan we adopt, or which new plan Congress or the President may introduce, we have essentially two options as a society. The first option is to reduce the amounts provided in the federal student loan program, which may force schools to control their costs. This approach would be very unpopular. The second option is to provide a way for student/debtors that need the help, to discharge their student loans in a bankruptcy proceeding. We should do the latter of these options first, and then address the former with more accountability. In the long term, our country has to address the rising cost of higher education. However, first we must address the out-of-control federal student loan debt.

This article proposes a way that may assist in the needed effort to allow federal student loans to be dischargeable in bankruptcy proceedings. This proposal would consider both sides of the discharge debate and find a middle ground that would address both sides' concerns. However, this article will first discuss the Brunner Test, a standard used by most courts, because using the existing model will create a more fair and reasonable standard. (42)

III. THE BRUNNER TEST

Under the Brunner standard, the only way a student/debtor can have their student loans discharged is if they pass the three part test:

   (1) that the debtor cannot maintain, based on current income and
   expenses, a 'minimal' standard of living for [themselves and any]
   dependents if forced to repay the loans; (2) that additional
   circumstances exist indicating that this state of affairs is likely
   to persist for a significant portion of the repayment period of the
   student loans; and (3) that the debtor has made good faith efforts
   to repay the loans [before the filing of the bankruptcy petition] .
   (43)


The courts have established that it is the debtor's burden to prove, by a preponderance of the evidence, (44) that all three parts of the Brunner Test have been satisfied. (45) Only satisfying one or two of the parts of the Brunner Test is not enough to have the federal student loans discharged. (46)

This test has been construed so strictly that it has led to the belief that federal student loans are never dischargeable. Therefore, each of the three parts of the Brunner Test must be discussed in order to examine how to change them. Presently, all three parts of the test are very fact intensive, leading to conclusions at every end of the spectrum. (47) Thus, each of the three parts will be discussed separately in detail and followed by a discussion on how to change them.

A. PART I OF THE BRUNNER TEST: THE MINIMAL STANDARD OF LIVING INQUIRY

Part I of Brunner, determining whether a debtor can maintain a minimal standard of living, has been construed very harshly. The courts consider the debtor's financial situation in order to determine whether repaying the federal student loans would cause the debtor to have less than a minimal standard of living. (48) To obtain this "minimal standard of living," the courts have determined that this test requires more than just showing that a debtor's finances are "tight." (49) However, the debtor does not have to show that repaying the federal student loans would cause their family to live at or below the poverty line. (50) Furthermore, the debtor does not need to show, or prove, utter hopelessness, but close to it. (51) Over time, the courts have made a list of elements to be considered while applying Part I of the Brunner Test.

There are six specific elements that the courts have adopted to establish a minimal standard of living. They are listed in In re Douglas: (52)

   1. People need shelter, shelter that must be furnished, maintained,
   kept clean, and free of pests. In most climates, it also must be
   heated and cooled[;] 2. People need basic utilities such as
   electricity, water, and natural gas. People need to operate
   electrical lights, to cook, and to refrigerate. People need water
   for drinking, bathing, washing, cooking, and sewer. They need
   telephones to communicate[;] 3. People need food and personal
   hygiene products. They need decent clothing and footwear and the
   ability to clean those items when those items are dirty. They need
   the ability to replace them when they are worn[;] 4. People need
   vehicles to go to work, to go to stores, and to go to doctors. They
   must have insurance for and the ability to buy tags for those
   vehicles. They must pay for gasoline. They must have the ability to
   pay for routine maintenance such as oil changes and tire
   replacements and they must be able to pay for unexpected repairs[;]
   5. People must have health insurance or have the ability to pay for
   medical and dental expenses when they arise. People must have at
   least small amounts of life insurance or other financial savings
   for burials and other final expenses[;] 6. People must have the
   ability to pay for some small diversion or source of recreation,
   even if it is just watching television or keeping a pet. (53)


These elements attempt to establish that a "debtor's extremely low income, compared with the cost of basic necessities, demonstrates that a debtor is unable to maintain a minimal standard of living if forced to repay the obligations." (54) Thus, the court is determining if there is enough extra income, after the debtor has maximized their income, to make theft student loan payments while maintaining a minimal living. (55) This determination is accomplished by first accounting for the debtor's basic needs and then seeing if there is anything left over to pay towards their federal student loans. (56) In essence, the court looks at the income and expenses of the debtor using a common sense approach. (57) This common sense approach, however, is too undefined, and thus leaves the courts on their own to determine the expenses and income of each debtor based on a case-by-case analysis. This is an inefficient and costly means for determining one's need for bankruptcy protection.

Some of the bankruptcy courts have looked at the past income of the debtor, which includes the average and highest yearly amount, to get an indication of what the future income would be. (58) In Chapter 13 bankruptcy petitions, determining the debtor's income becomes a little more complicated. (59) Here, the courts not only consider the debtor's income at the time of constructing the reorganization payment plan, but also what the debtor's income might be at the plan's conclusion. (60) In any situation, the court is determining what the future income for the debtor(s) could be, which in reality, is little more than an educated guess.

Other courts, however, only consider the current debtor's income at the time of the bankruptcy reorganization plan's hearing. (61) This approach follows the language of the Brunner Test in considering the "current income" of the debtor. (62) One court rejected the lender's request that the court consider the debtor's income at the end of the repayment plan. (63) The court rejected the lender's reasoning that since the debtors were capable of making their monthly payments under the reorganization plan, then they would be able to contribute that much each month towards their federal student loans once the bankruptcy reorganization plan was concluded. (64) The basis for this decision was that if the court would consider this lender's approach, then no debtor would ever be able to satisfy the first part of the Brunner Test. (65)

When the bankruptcy courts have scrutinized the expenses of the debtor (66) to see if they could maintain a minimal standard of living, the courts have looked at the necessity of the debtor's expenses and contemplated whether the amounts are too much or if the expenses could be eliminated completely. (67) For example, courts will look at the debtor's transportation costs to determine if they can be reduced or eliminated. (68) Other courts have looked at telephone expenses to see if debtors could have reduced these costs. (69) In one case, the court found the debtor did not satisfy Part I of the Brunner Test partly because the debtor had continued to contribute money to charity. (70) The courts will simply consider whether the debt is necessary and if the debtor has done everything possible to reduce those expenses.

This part of the Brunner Test basically requires the bankruptcy court to examine the debtor's current income and expenses to determine, through the application of common sense (whatever that may mean), what a minimal standard of living level would be on a case by case determination. (71) This approach prevents the bankruptcy system from developing a clear standard, or one that any reasonable person could discern. This test is literally allotted to a court, each with its own definitions of reasonable and what expenses are necessary to determine whether a debtor's actions are acceptable. The result is varying definitions, which is not how our country should be determining who gets a debt discharged and who does not. If the bankruptcy court does determine that after paying for the debtor's basic needs there would be no resources to pay for the federal student loans, then an undue hardship may exist. All this means, however, is that the debtor has satisfied the first part of the Brunner Test. (72)

In conclusion, on Part I of the Brunner Test, a uniform standard is easily within reach. Congress could easily define the standard using the examples above to take judicial discretion out of the equation, make it easier for practitioners to advise their clients, and allow the system to work more efficiently. The examples discussed above lead to the conclusion that another test already used in the Bankruptcy Code should be the standard. I suggest using the current "means test" (73) for both the Chapter 7 (74) and 13 (75) bankruptcy petitions in order to determine a debtor's ability to maintain a minimal standard of living. The "means test" has worked very well in the bankruptcy system thus far, and can be incorporated in place of the current judicial discretion in the present Brunner Test, Part I. The "means test" is a requirement of the Bankruptcy Code to determining whether the debtor can file a Chapter 7 or 13 bankruptcy. (76)

Using the "means test" approach would simplify the process of Brunner Part I by creating an easy test for anyone to understand and follow. If the bankruptcy petitioner qualifies under the "means test" to proceed with either a Chapter 7 or 13 bankruptcy petition for example, then the petitioner would also qualify for potential discharge of their federal student loans. This would allow bankruptcy attorneys and the courts to be able to determine the minimal standard of living without complicated calculations and personal court biases that currently exist in the Brunner Test. There would be no need to create any new "table of values" of income and expenses. The current numbers already used to determine the means testing for bankruptcy could be used; if the debtor makes less than the limit allowed under the "'means test"' to file bankruptcy, then he or she satisfies this Part.

The "means test" approach would eliminate the varying discretion of the bankruptcy judges in determining Part I of the Brunner Test. All of the examples of court decisions discussed above demonstrate how the courts are scattered in their approaches to this part of the Brunner Test. This change to the Bankruptcy Code would make the definition of whether a debtor can discharge their federal student loans uniform and easy to interpret. With that change, it would eliminate the need to litigate the matter and reduce costs to the court system and the debtor. Federal student loans would not automatically be discharged, nor would it indicate whether the debtor would satisfy the remaining two parts of the Brunner Test, but it would simplify the process in determining the other two parts of the Brunner Test.

Using this approach would simply mean that if the petitioner can file for bankruptcy by passing the "means test" for that chapter of the Bankruptcy Code, then the petitioner also passes Part I of the Brunner Test. This would use the median income that is applicable to each state instead of using the federal poverty level that has been the standard in the Brunner Test. (77) The "means test" could easily become statutory law by updating the Bankruptcy Code. However, this is only the first part of the Brunner Test; there are two more parts to discuss that can be simplified. Thus, even if the debtor satisfied the minimal standard of living part of Brunner (Part I) by using the means test already being used in the bankruptcy proceedings, the debtor would still not qualify for a discharge without satisfying each of the remaining parts of the Brunner Test. (78)

B. PART II OF THE BRUNNER TEST

If the court finds that a debtor cannot maintain a minimal standard of living, then it must determine the likelihood of the situation to exist in the future. (79) Part II has been described as the "heart of the Brunner Test." (80) Part II is "often difficult to prove because it requires the debtor to show that she will be unable to pay her student loan debt in the future for reasons outside her control." (81) The court looks for a "certainty of hopelessness" or rare circumstances that show the debtor's inability to ever repay the federal student loans. (82) However, as with the other parts of the Brunner Test, Part II has been interpreted differently by various courts.

The courts are supposed to take a "realistic look''83 into the debtor's future circumstances, but the term "realistic" has not been defined. It is hard to believe that anyone, much less a judge, has the ability to predict twenty years into the future and make a final determination about one's income and expenses. Looking back twenty years, no one could have predicted where anyone would be at today. Nevertheless, this part of the Brunner Test requires a showing of circumstances that would provide the court with the ability to predict how long the debtor's financial hardship will last, on a case-by-case basis. (84)

Part II of the Brunner Test essentially asserts that the debtor is required to show, in addition to the First part of the test, the existence of unique and/or exceptional circumstances that demonstrate the inability to make payments on their federal student loans in the future including such circumstances as illnesses, lack of job skills, a large number of dependents, and more. (85) These are factors generally considered to be beyond the debtor's control. (86) These factors will vary depending on the factual situation of the debtor(s) in each bankruptcy case. Other factors have been presented in numerous cases and are discussed below.

In the case, In re Nys, (87) the court listed "additional circumstances" from prior cases, but noted that this list is non-exhaustive. (88) The compiled list is as follows: "1. Serious mental or physical disability of the debtor or the debtor's dependents which prevents employment or advancement; 2. The debtor's obligations to care for dependents; 3. Lack of, or severely limited education; 4. Poor quality of education; 5. Lack of usable or marketable job skills; 6. Underemployment." (89) For the purposes of this article, serious mental and physical disabilities will be discussed separately, and points 3 through 6 will be discussed together. (90)

Physical illnesses are a leading factor, or cause, the courts consider for this part of the Brunner Test. (91) It is possible courts like this factor because physical illnesses can be easily shown to a court without much speculation. Nonetheless, if health difficulties contribute significantly to the sub-minimal standard of living for the debtor, these difficulties become highly relevant to the discussion of whether the conditions are likely to exist for a significant period of the loan. (92) If the illness affects the debtor's ability to pay on their federal student loans for the extended period as required, then the possibility of having those discharged in bankruptcy for illness is more likely than any other possible reason. (93)

Illnesses are not limited to physical ailments, but also include mental and emotional afflictions, as considered under Part II of the Brunner Test. (94) As with physical illnesses, mental and emotional illnesses have to be prolonged with little hope of ever being alleviated. For example in In re Buckland, (95) the debtors lost their daughter the previous spring and suffered from "significant stress," but still could not have their federal student loans discharged because the stress from their daughter's death was temporary. (96) For mental or emotional issues, the illness must be "sufficiently debilitating and unlikely to improve" in order for the court to discharge the federal student loans owed by the debtor. (97)

One mental illness that has seemed to be sufficiently debilitating is bipolar disorder. (98) However, much like every aspect of the Brunner Test, the debtor has the burden of proof to show the mental illness is severe enough to qualify for the discharge. (99) The most important factor when considering any mental illness under the Brunner Test is whether the medical condition is long-term, or extends into the future long enough, to prevent employment possibilities and thus render the ability to repay the federal student loan impossible. (100)

Another often-stated consideration under Part II of the Brunner Test is whether the debtor is unemployed or underemployed. (101) However, the debtor's situation of being unemployed or underemployed is not undue hardship per se. (102) When the situation of underemployment exists, the court must assess the debtor's future prospects for full-employment. (103) In addition, the court considers the amount of income the debtor is currently making in relation to the poverty level for his or her family situation, and whether that circumstance will continue for a significant period of the student repayment plan. (104) Again, the courts engage in pure guess work; it is simply an act of predicting something the court has no way of ascertaining. Who could have predicted the housing collapse of 2008 and, if anyone could have, would that event have had any impact on discharges of federal student loans in bankruptcy proceedings? Stated simply, nobody, including the courts, can predict the future in any direction, and it is a disservice to the bankruptcy system to require the court to do it.

Lastly, as far as employment situations are concerned, the court considers whether the debtor chose a lower paying job instead of a higher paying job for which the debtor was qualified. (105) The courts are not likely to be sympathetic to debtors who chose a lower paying job in a field that is not related to the debtors' college degree or situations where the debtors could be earning more money. (106) Furthermore, there is little sympathy for debtors who are forced into lower paying jobs because of their own illegal activities, which have prevented them from working in their higher-paying former professions. (107) This reluctance by the courts is based on the general policy against allowing debtors to file for bankruptcy to discharge their federal student loans and then move onto higher paying jobs. (108) Not all case examples are this easy to understand.

This employment circumstance has been decided very strictly also. For example, one debtor's current income was sixty-nine percent of the poverty level at the time of the case and the court stated that fact alone was not enough to satisfy Part II of the Brunner Test. (109) The court noted that the debtor still could repay a large portion of the federal student loan debt. (110) If not for the debtor's illness and age, the court would not have stated he satisfied this Part of the Brunner Test. (111) Again, illnesses seem to be the main factor in this part of the Brunner Test. This case, however, is a good example of how ridiculous some courts have been in applying the Brunner Test.

One last factor under Part II of the Brunner Test is the ability to discharge federal student loans based upon a large number of dependents. This factor has been typically determined based upon when the dependents became dependents. In the case In re Goodman, (112) the court stated:

   The Debtors' current inability to maintain a minimal standard of
   living is based primarily on their family size. As a consequence,
   it is appropriate to determine if the Debtors will be required to
   provide for their seven dependent children for an extended period
   of time. Although the Debtors' children will always be their
   children, the children will not always be dependents of the
   Debtors. It is a common occurrence that children grow up and become
   independent. (113)


Thus, it is the opinion of the courts that a large number of dependents will not always result in a discharge of federal student loans unless the debtor can show that he or she would be required to care for the dependents longer than normally expected. (114) Furthermore, the debtor must also prove that these expenses are not normal expenses. (115)

As mentioned above, Part II of the Brunner Test requires the examination of these circumstances over the duration of a "significant portion" of the repayment period of the loan. (116) What is a "significant portion" of the loan? Again, courts have disputed and defined on their own, while it could easily be defined within the Bankruptcy Code. The courts have stated that this period does not include the "entire period" of the student loan, (117) but beyond this parameter, the courts have been vague. Even in situations where the debtor is trying to reduce the amount of the federal student loan, not discharging it entirely, the courts have been equally as strict. (118)

A suggestion is also to use the "means test" for bankruptcy as a method of determining this part of the Brunner Test. As with Part I of the Brunner Test, Part II can be easily determined by using the same means testing for a debtor to file a bankruptcy petition. Take the court's guesswork out of the equation and return to the original intent of the Bankruptcy Code by asking, "What is the current situation of the debtor in relation to their ability to pay their debts?" (119) By incorporating this approach for the second part of the Brunner Test, it makes the proceeding more streamlined and eliminates costly court time. No one person or court can properly guess the future. The approach I suggest would also place more emphasis on the third part of the Brunner Test, where I believe the court's time should be focused.

C. PART III OF THE BRUNNER TEST

Part III, or the last part of the Brunner Test, considers whether the debtor has shown good faith in attempting to repay his or her federal student loans. This is not a lack of bad faith test, but a test to see if the debtor has made the required efforts to attempt to repay the federal student loans. (120) The court will first look at the time period between when the federal student loans first became due until the filing of the bankruptcy protection. (121) The third part should be the first and main question to be addressed in the bankruptcy proceedings to determine whether a debtor's federal student loans should be discharged.

Federal student loans become due typically after a six-month grace period. (122) The six-month period begins once the student has graduated or left school. (123) The purpose of the grace period is to allow the debtor time to find employment before having to worry about repaying his or her federal student loans. Thus, it is after this grace period that the loans actually are due for repayment and the clock begins for the possible discharging of the federal student loans. Nevertheless, the longer the time it has been between the debtor/student's graduation, or leaving school, and the filing of a bankruptcy petition, the better it would look for the debtor. (124) This determination is very important in the consideration of possible discharge of the federal student loans, and should continue to be considered in any possible change to the Bankruptcy Code.

The final Good Faith Part of the Brunner Test ensures that the debtor's plight is caused by financial factors beyond the debtor's ability to control, not because of negligent or willful intent, including the motivation to obtain a free education. (125) Thus, the amount of time between graduation, or leaving school, and the bankruptcy petition is and should be an important part of that consideration. In the approach I suggest, this period is the pivotal point in the determination of the ability of the debtor to discharge his or her federal student loans.

The Good Faith Part of the Brunner Test should be the focus of the determination of whether a debtor can discharge his or her federal student loans. Good faith, if used properly, is the real determining factor in deciding the fate of the debtor. Furthermore, if formulated correctly, both sides of the debate of whether to allow the discharge of federal student loans can be satisfied with this Part's determination alone. The main concern has always been that people should not get students loans and then bankrupt themselves to get a free education. (126) A time requirement would prevent that situation.

In recent years lenders have made the argument that since the creation of the ICR and IBR payment options for federal student loans, there should be no more hearings for undue hardship. (127) The lenders present a very good argument. (128) However, it still is contradictory to the basic principle of giving debtors a fresh start as established in the Bankruptcy Code. Even with these various repayment plans in place, Congress has left the undue hardship language in the Bankruptcy Code after the changes in 2005. (129)

Even with the various plans in place providing debtors with a possible payment of zero dollars each month, there has been resistance to using the plans by debtors. The primary reason debtors give for avoiding establishing a payment plan with either the ICR or IBR plans is the potential tax liability for the amount given. (130) Regardless of that concern, courts have made it very clear that if the debtor does not attempt to repay his or her federal student loans through either of these repayment plans it is almost prima facie evidence that it will be considered a lack of good faith. (131)

With the potential tax liability associated with the plans, it again makes it more sensible to include the federal student loans in the debts that can be discharged through bankruptcy. Yes, the federal student loans could be discharged after twenty-five years, but yet there could be a possible bankruptcy filing because of the potential tax liability. All of these plans, which are better than nothing, really only achieve a delay in the inevitable--another bankruptcy filing. Furthermore, the drain on the overall economy is significant, with the student loan debt looming on everyone's credit reports.

How do we achieve a balance in the how we approach the concept of discharging federal student loans and not providing free educations to everyone? We should focus on restructuring good faith repayment efforts in Part III of the Brunner Test so they are practical and reasonable at the same time. This can be accomplished by instituting the following rules within the definition of "undue hardship" of the Brunner Test.

The main change to the current interpretation of the good faith requirement of the Brunner Test is time. As currently construed, there is a time requirement to qualify as a good faith effort to repay the federal student loans, but it is vague and left to each court to determine on its own. It is only necessary to determine good faith; all other aspects of the Brunner Test are unnecessary. To satisfy this part of the Brunner Test, Congress should return to earlier versions of the Bankruptcy Code when a time requirement existed before a debtor could file for bankruptcy on federal student loans, but Congress should make the time requirements just a little longer than previously enacted.

In 1978, the Bankruptcy Code stated that a debtor must wait five years to be able to discharge his or her student loans through a bankruptcy petition. (132) The exception applied if there was a showing of undue hardship; otherwise, the debtor must wait the five-year period. (133) This addition was a result of a five-year study into the perceived abuses of students bankrupting their student loans. (134) One of the concerns was that in certain unnamed areas of the country, student/debtors were actually being counseled by their educational institutions about filing for bankruptcy to discharge their federal student loans. (135) Another concern noted was the fact that when most student/debtors graduated from college they had large amounts of debt and no assets, which made them eligible for bankruptcy protection. (136) Thus, the addition to the Bankruptcy Code was to make the debtor wait for a period before being able to discharge the federal student loans in a bankruptcy proceeding. (137) This approach would work today if the time period was longer.

The legislative history of the time period requirement indicated a congressional intent to allow the discharge of federal student loans after they have been due and owing for more than five years. (138) Congress believed that the five-year waiting period would provide a better analysis of the debtor's ability to repay the loans. (139) In addition, the five-year waiting period meant that the federal student loans had to be in actual repayment status. Thus, any period of deferment, or some form of suspension, could not be included in the five-year determination for the possible discharge. (140) The theory behind this five-year waiting period is that the student/debtor would have been given sufficient time to start working, make enough money, and have had acquired enough assets to repay his or her federal student loans. (141) Using a time requirement serves both debtors and society at large.

The issue, however, is coming up with the right period of time to wait before the debtor would be allowed to file for bankruptcy protection. Congress has had the same problem in determining the proper time requirement. Thus, in 1990, Congress lengthened the waiting period to discharge federal student loans from five years to seven years of actual repayment. (142) The same year, Congress added these restrictions to Chapter 13 petitions. (143)

Then, in the Higher Education Amendments of 1998, Congress eliminated any time requirement, making "undue hardship" the only exception to the non-dischargeability of federal student loans. (144) Part of reason for eliminating the time requirement was because it was easier for Congress to "pass-the-buck" to the courts rather than have Congress take responsibility. The proof is in articles like this one, which are trying to get some standardized approach in the possible discharge of federal student loans. Nevertheless, a standard period of time, defined within the Bankruptcy Code, to make the debtor wait before the possible discharge of the federal student loans is very appropriate and necessary.

A ten-year waiting period would be sufficient to determine whether the debtor has made good faith efforts to repay his or her federal student loans. Requiring a debtor to wait ten years would be sufficient to see whether a debtor would need the bankruptcy protections. As the previous versions of the Bankruptcy Code required, this ten-year period should only include periods of actual repayment. Furthermore, this new approach should retain the current payment plans, such as the ICR and IBR, for debtors to use before that ten-year period has expired.

If these changes would be made to the Bankruptcy Code, it would cause the Federal Government to readdress the amounts given in federal student loans. If the Federal Government made colleges and universities more responsible for the results of their students, then maybe we would see a reduction of federal loan amounts. Part of the problem is the fact that schools are not held accountable for their students' success. Thus, schools feel free to keep providing more and more in federal student loans to their students.

Some courts have tried to reach a middle point, allowing a partial discharge of the debtor's federal student loans. As with many repayment plan options available to debtor, this is only a partial fix to the real problem. However, it must also be briefly discussed.

D. THE BRUNNER TEST AND PARTIAL DISCHARGE.

Under the current standard, the debtor must satisfy all three parts of the Brunner Test for federal student loans to be discharged. (145) An example of the extreme situations that debtors have had to endure to have their federal student loans discharged is Education Resources Institute v. Ekenasi. (146) In Education Resources Institute, a debtor had to show that he tried to lower his cost of living, find a better paying job, and drive his vehicle until it no longer functioned. (147) Furthermore, he never dined out with his family and even purchased all of their clothing from thrift stores. (148) Under these circumstances, the court's failure to discharge "some" of the federal student loan debt would have subjected the debtor to undue hardship and prevented him from providing in any reasonable way for the medical costs, nurturing, and necessities of his children. (149) However, even in this extreme case, the verdict was overturned on appeal. (150) This lead to the concept of partial discharges of federal student loans.

Even in situations where the debtor is trying to reduce the amount of the federal student loan, not discharging it entirely, the courts have been equally as strict on the Brunner Test interpretation. (151) A partial discharge of federal student loans, which is better than nothing, still does not accomplish the purpose and intent of the Bankruptcy Code. If a jurisdiction considers a partial discharge for federal student loans, it still should only consider the good faith time requirement, as suggested above, as the determination of dischargeability.

Thus, we should eliminate partial discharges of federal student loans entirely. As with other debts considered in bankruptcy proceedings, the possible discharge of federal student loans would simply be a determination of whether the debtor can afford to pay the debt or not. Allowing partial discharges would complicate the proceeding, not streamline it--the purpose of the approach suggested in this article. As a result, the partial discharge idea is an improvised measure, not a solution.

IV. CONCLUSION

When the Brunner Test is changed to the standard proposed and discussed in this article, the true intent of the Bankruptcy Code and the national desire to make student bankruptcies difficult, but not impossible, can both be accomplished. Both the first and second part of the Brunner Test should be combined to a simple test: did the debtor meet the means test for filing bankruptcy as provided for within the Bankruptcy Code? This approach will take all of the guesswork by the courts out of the equation and simplify the proceedings. Additionally, the means test will reduce associated court costs. These costs include those to the taxpayers in paying for the courts and to the debtors for the fees associated with bringing such adversarial actions. Thus, costs and time would be saved as a result because the emphasis now would be placed on the third part of the Brunner Test or good faith.

The good faith part of the Brunner Test should be reduced to a simple question: has the debtor attempted to pay his or her federal student loan for at least ten years? This ten-year period would have to consist of actual repayment periods, just as the Bankruptcy Code used to require in the past. Thus, any suspension of payments, for any reason, would not be included. We could still keep the undue hardship part of the equation, but only if applied to those debtors filing for bankruptcy prior to the ten-year waiting period.

This approach would require the debtor to make a real effort to repay on the federal student loans. Thus, a balance forms between those who do not want to see federal student loans discharged and those who want them included in bankruptcy proceedings like any other debt. Those who want to limit the dischargeability of student loans argue it serves two purposes: "[1] preventing abuses of the educational loan system by restricting the ability to discharge a student loan shortly after a student's graduation; and [2] safeguarding the financial integrity of governmental entities and nonprofit institutions that participate in educational loan programs." (152) This approach would follow the original intent of the Bankruptcy Code to give the debtor a fresh start, and also address the concerns of those who want to limit the discharge of the federal student loans.

Something has to be done with the federal student loan debt problem. The various plans being introduced are just delaying the inevitable conclusion that federal student loans have to be dischargeable again in bankruptcy. The plan in this article is a real bridge between the various views on the dischargeability of federal student loans. We can keep the various repayment plans that exist, however, we should add a ten-year waiting period. Just ask the simple question: has the debtor been paying on his or her federal student loans for at least ten years? If the debtor has been paying on the federal student loans for the ten years, then the debtor can file for the federal student loans to be discharged in bankruptcy just like any other debt.

(1.) See Stephen R. Bentfield, Note, Determining the Dischargeability of Fraudulent Claim Settlement Agreements in Bankruptcy, 8 SUFFOLK J. TRIAL & APP. ADVOC. 111, 115 n. 33 (2003) (containing the citation for the modern Bankruptcy Code and the citation for the pre-1978 Bankruptcy Act which is considered the modern Bankruptcy Code); see also Robert P. Wasson, Jr., Remedying Violations of the Discharge Injunction Under Bankruptcy Code [section] 524, Federal Non-Bankruptcy Law, and State Law Comports with Congressional Intent, Federalism, and Supreme Court Jurisprudence for Identifying the Existence of an Implied Right of Action, 20 BANKR. DEV. J. 77, 91-93 (2003) (describing the evolution of the modern Bankruptcy Code).

(2.) 11 U.S.C. [section] 523(a)(8) (2006). This section protects four categories of educational/student loans from discharge: (1) loans made, insured, or guaranteed by a governmental unit; (2) loans made under any program partially or fully funded by a governmental unit or nonprofit institution; (3) loans received as an educational benefit, scholarship, or stipend; and (4) any "qualified educational loan" as that term is defined in the Internal Revenue Code. Id.; see also In re Weldon, 2008 WL 4527654, *2 (Bankr. W.D. Wash. Oct. 1, 2008).

(3.) 46 B.R. 752 (S.D.N.Y. 1985), aff'd, 831 F.2d 395 (2d Cir. 1987). An interesting side-note to the Brunner case is the fact that the debtor was pro se. Id. If she would have had proper representation, history may have had a different result, but it is interesting to note the case with one of the biggest impacts regarding the Bankruptcy Code involved a pro se debtor.

(4.) See, e.g., Educ. Credit Mgmt. Corp. v. Rhodes (In re Rhodes), 464 B.R. 918, 922 (W.D. Wash. 2012) (stating the Ninth Circuit has adopted the Brunner Test); Oyler v. Educ. Credit Mgmt. Corp. (In re Oyler), 397 F.3d 382, 385 (6th Cir. 2005) (stating the Sixth Circuit adopted the Brunner Test but as a hybrid); U.S. Dep't of Educ. v. Gerhardt (ln re Gerhardt), 348 F.3d 89, 91-92 (5th Cir. 2003); Hernar Ins. Corp. v. Cox (In re Cox), 338 F.3d 1238, 1240 (11th Cir. 2003), Ekenasi v. Educ. Res. Inst. (In re Ekenasi), 325 F.3d 541, 546 (4th Cir. 2003); Goulet v. Educ. Credit Mgmt. Corp. (In re Goulet), 284 F.3d 773, 777 (7th Cir. 2002); Brightful v. Pa. Higher Educ. Assistance Agency (In re Brightful), 267 F.3d 324, 327 (3d Cir. 2001).

(5.) See, e.g., Boston v. Utah Higher Educ. Assistance Auth. (In re Boston), 119 B.R. 162, 164 (Bankr. W.D. Ark. 1990); Downey v. Sallie Mae, Inc. (In re Downey), 255 B.R. 72, 75 (Bankr. N.D. Fla. 2000) (stating neither the Bankruptcy Code nor the legislative history defined "undue hardship"); see also Woodcock v. Chem. Bank, NYSHESC (In re Woodcock), 45 F.3d 363, 367 (10th Cir. 1995) (stating the courts have "crafted numerous definitions" of undue hardship).

(6.) Pub. L. No. 85-864, Title II, [section][section] 201-09, 72 Stat. 1580, 1583-87.

(7.) Pub. L. No. 89-329, 79 Stat 1219 (1965) (codified as amended 20 U.S.C. [section][section] 1071-1087 (2006 & Supp. 2011)). The Stafford Student Loan Program includes two different types of loans: subsidized and unsubsidized. See STAFFORDLOAN.COM, http://www.staffordloan.com/stafford-loan-info/ (last visited Jan. 19, 2013) (detailing the differences between the two types of federal student loans).

(8.) See, e.g., Ohio Student Loan Comm'n v. Cavazos, 709 F. Supp. 1411, 1415 (S.D. Ohio 1988) (stating when the government will pay in full or in part), rev'd, 900 F.2d 894 (6th Cir. 1990); Tipton v. Sec'y of Educ., 768 F.Supp. 540, 545-46 (S.D.W. Va. 1991) (citing various sections of the C.F.R. and U.S.C. that contain the provisions stating the federal government guarantees payment on student defaults); see also 4 COLLIER ON BANKRUPTCY [paragraph] 523.1411] (16th ed. 2012).

(9.) See generally C. Aaron LeMay & Robert C. Cloud, Student Debt and the Future of Higher Education, 34 J.C. & U.L. 79 (2007) (discussing the increase of student loan debt over the decades).

(10.) For an excellent break-down of student default rates among different types of schools and individuals, see Jean Braucher, Mortgaging Human Capital." Federally Funded Subprime Higher Education, 69 WASH. & LEE L. REV. 439 (2012); Richard Fossey & Robert C. Cloud, From the Cone of Uncertainty to the Dirty Side of the Storm." A Proposal to Provide Student-Loan Debtors Who Attended For-Profit Colleges With Reasonable Access to Bankruptcy Court, 272 EDUC. L. REP. 1 (2011).

(11.) Bob Willis, Student debt is stifling home sales, BLOOMBERG BUSINESSWEEK (April 9, 2012 11:07 AM), http://money.msn.com/debt-management/student-debt-is-stifling-home-sales-bloomberg.a spx.

(12.) Id.

(13.) Kelly Evans, Student Loans: The Next Bailout?, CNBC (April 25, 2012 8:49 AM), http://www. cnbc.com/id/47171658.

(14.) Id.

(15.) Id.

(16.) See, e.g., Rebecca Curwin, U.S. College Tuition Rises 4.6% Beating Inflation, BLOOMBERG (Feb. 18, 2013, 11:06 AM), http://www.bloomberg.com/news/2011-06-24/u-s-college-tuition-rises-4-6-beating-inflation- correct-.html; see also R. Paul Guerre, Note, Financial Aid in Higher Education." What's Wrong, Who's Being Hurt, What's Being Done, 17 J.C. & U.L. 483, 506 (1991) (stating the college tuition rates increased at a higher rate than inflation for over ten straight years).

(17.) See Jennifer L. Frattini, Note & Comment, The Dischargeability of Student Loans: An Undue Burden?, 17 BANKR. DEV. J. 537, 541-47(2001) (providing many examples of debtors filing to have their federal student loans discharged that led to the changes in the Bankruptcy Code).

(18.) 20 U.S.C. [section] 1078(m); 34 C.F.R. [section][section] 685.208-09 (2012). For a detailed historical analysis of the ICR plan, see Philip G. Schrag, The Federal Income-Contingent Repayment Option for Law Student Loans, 29 HOFSTRA L. REV. 733 (2001).

(19.) Income Contingent Repayment, FINAID, http://www.finaid.org/loans/icr.phtml (last visited Jan. 19, 2013); see also Cota v. U.S. Dep't of Educ., et al (In re Cota), 298 B.R. 408, 414 (Bankr. D. Ariz. 2003) (showing that the ICR plan is offered under the William D. Ford Federal Direct Loan Program).

(20.) See Income Contingent Repayment, FINAID, http://www.finaid.org/loans/icr.phtml (last visited Jan. 19, 2013).

(21.) See 34 C.F.R. [section] 685.209 (2012).

(22.) 34 C.F.R. [section] 685.209(c)(4)(i). For details about the ICR and how it exactly works, see generally 34 C.F.R. [section] 685.209.

(23.) U.S. Dep't Educ. v. Wallace (In re Wallace), 259 B.R. 170, 175 (C.D. Cal. 2000).

(24.) See Fields v. Sallie Mac Servs. Corp., et al (In re Fields), 286 Fed. Appx. 246, 250 (6th Cir. 2007) (noting that the debtors did not attempt to repay their debt under the ICR); Tirch v. Pa. Higher Educ. Assistance Agency (In re Tirch), 409 F.3d 677, 682 (6th Cir. 2005) (stating the debtor's decision not to take advantage of the ICR plan "[w]hile not a per se indication of a lack of good faith ... [debtor's] decision not to take advantage of the ICR is probative of her intent to repay her loans").

(25.) See, e.g., Korhonen v. Educ. Credit Mgmt. Corp. (In re Korhonen), 296 B.R. 492,496 (Bankr. D. Minn. 1993) (stating the ICR plan is not always feasible since it permits negative amortization); Quarles v. Educ. Credit Mgmt. Corp. (In re Quarles), Nos. 02-40709, 02-7089, 2004 WL 2191608, at *9 (Bankr. D. Kan. Apr. 22, 2004) (granting the debtor's discharge of their student loans despite not entering into the ICR plan).

(26.) See Swinney v. Academic Fin. Servs., et al. (In re Swinney), 266 B.R. 800, 806-07 (Bankr. N.D. Ohio 2001) (concluding the debtor did not meet the good faith requirement of the Brunner Test and thus could not discharge the student loan where no exceptional circumstances were present to justify the debtor's failure to consider the ICR plan); Korhonen, 296 B.R. at 496 (stating the ICR plan is but one factor to be considered in determining whether undue hardship exists, but it is not determinative).

(27.) See 20 U.S.C. [section] 1087e (m) (2006 & Supp. 2011); 34 C.F.R. [section] 685.219 (2012); Public Service Loan Forgiveness, FINAID, http://www.finaid.org/loans/publicservice.phtml (last visited Jan. 21, 2013).

(28.) 20 U.S.C. [section] 1087e (m).

(29.) In re Pracht, 464 B.R. 486, 488 (Bankr. M.D. Ga. 2012).

(30.) Bush v. U.S. Dep't of Educ. (In re Bush), 450 B.R. 235,245 (Bankr. M.D. Ga. 2011).

(31.) Educ. Credit Mgmt. Corp. v. Kelly (In re Kelly), No. C11-1263RSL, 2012 WL 1378725, at *3 (W.D. Wash. 2012) (stating the debtor not using the PSLF plan showed a lack of good faith to repay the federal student loan under Part I]I of the Brunner Test); see also Evans-Lambert v. Sallie Mac Servicing Corp., (In re Evans-Lambert), Nos. 07-40014-MGD, 07-05001-MGD, 2008 WL 7842070, at *4 (Bankr. N.D. Ga. 2008) (referring the debtor to the PSLF program or a similar one to provide the debtor with relief where the court could not).

(32.) For details about how this plans works, see supra note 31 and accompanying cases within the note.

(33.) 34 C.F.R. [section] 682.215 (2012); Income-Based Repayment, FINAID, http://www.finaid.org/loans /ibr.phtml (last visited Jan. 21, 2013). The IBR was part of the College Cost Reduction and Access Act of 2007, which amended the Higher Education Act of 1965. See Pub. L. No. 110-84, 121 Stat. 784 (codified as amended at 20 U.S.C. [section] 1001 et seq). The plan became available July 1, 2009. See, e.g., Stevenson v. Educ. Credit Mgmt. Corp. (In re Stevenson), 463 B.R. 586, 592 n.5 (Bankr. D. Mass. 2011).

(34.) Income-Based Repayment, supra note 33.

(35.) Under this plan, discretionary income is the difference between the debtor's adjusted gross income and 150% of the federal poverty line for your family size in your state of residence. Id.

(36.) Id.

(37.) Id. For details about how this plan works, see supra note 34 and accompanying text. For example, in one case the debtor's payment was forty-four percent lower under the IBR. See Educ. Credit Mgmt. Corp. v. Ristow (In re Ristow), Nos. 10-06491-EWH, 10-01141-EWH, 2012 WL 1001594, at *3 (B.A.P. 9th Cir.); see also Branch v. Educ. Credit Mgmt. Corp. (In re Branch), No. 09-03206-sgj, 2010 WL 817395, at *2 (Bankr. N.D. Tex. 2010) (stating that the failure on the debtor's part in not applying for a IBR plan was evidence of lack of good faith to repay the federal student loans under Part III of the Brunner Test, but also showing that debtor's payment under the IBR program could have been zero dollars per month).

(38.) See 26 U.S.C. [section] 61(a)(12) (2006); see also Durrani v. Educ. Credit Mgmt. Corp. (In re Durrani), 311 B.R. 496, 508 (Bankr. N.D. Ill. 2004) (discussing the student loan discharge after the 25-year term as a taxable event).

(39.) Branch, 2010 WL 817395, at *2. But see Barrett v. Educ. Credit Mgmt. Corp. (In re Barrett), 487 F.3d 353,364 (6th Cir. 2007) (rejecting the per se rule requiring debtors enrollment in the similar ICR plan to satisfy the good faith prong of the Brunner Test).

(40.) See, e.g., Champagne v. Educ. Credit Mgmt. Corp. (In re Champagne), No. 6:10-ap-00285ABB, 2012 WL 293736, at *2 (Bankr. M.D. Fla. 2012); Brown v. Sallie Mae, Inc (In re Brown), 442 B.R. 776, 784 (Bankr. D. Colo. 2010); Marshall v. Student Loan Corp. (In re Marshall), 430 B.R. 809, 814 (Bankr. S.D. Ohio 2010).

(41.) See, e.g., Boston v. Educ. Credit Mgmt. Corp. (In re Boston), No. 10-03300, 2011 WL 4712078, at *3-4 (Bankr. W.D.N.C. 2011) (stating that failure to consider any income-based repayment options constituted a lack of good faith under the Brunner Test).

(42.) See, e.g., Goforth v. U.S. Dept. of Educ. (In re Goforth), 466 B.R. 328, 335 (Bankr. W.D. Pa. 2012) (stating that the Brunner Test is the most widely recognized standard for determining undue hardship).

(43.) Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir. 1987). It should be noted that another test--the totality of the circumstances--is the standard for the 8th Circuit. The factors for determining whether undue hardship exist are similar but more extensive. See McLaughlin v. U.S. Funds (In re McLaughlin), 359 B.R. 746, 750 (Bankr. W.D. Mo. 2007) (citations omitted) (listing the factors as:

   (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) 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).


(44.) See, e.g., Flickinger-Luther v. ECMC (In re Flickinger-Luther), 462 B.R. 157, 160 (Bankr. W.D. Pa. 2012) (citing Brightful v. Pa. Higher Educ. Assistance Agency) (In re Brightful), 267 F.3d 324, 327 (3d Cir. 2001)); Flores v. U.S. Dep't of Educ. (In re Flores), 282 B.R. 847, 853 (Bankr. N.D. Ohio 2005) (citing Grine v. Tx. Guaranteed Student Loan Corp. (In re Grine), 254 B.R. 191,197 (Bankr. N.D. Ohio 2000)).

(45.) See, e.g., Kuznicki v. Educ. Credit Mgmt. Corp. (In re Kuznicki), No. 11-02076-BM, 2012 WL 567127, at *3 (Bankr. W.D. Pa. Feb. 21, 2012); Fabrizio v. U.S. Dep't of Educ. Borrower Servs. Dep't Direct Loans (In re Fabrizio), 369 B.R. 238, 244 (Bankr. W.D. Pa. 2007).

(46.) See Sands v. United Student Aid Funds, Inc. (In re Sands), 166 B.R. 299, 313-14 (Bankr. W.D. Mich. 1994) (holding the debtor only satisfied one part of the test).

(47.) See, e.g., Rumer v. Am. Educ. Services, et al. (In re Rumer), 469 B.R. 553,563 (Bankr. M.D. Pa. 2012) (referring to the Brunner Test as fact-intensive).

(48.) Rifino v. United States (In re Rifino), 245 F.3d 1083, 1088 (9th Cir. 2001) (citing Brunner, 831 F.2d at 396).

(49.) Pa. Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d. Cir. 1995); see also United Student Aid Funds, Inc. v. Pena (In re Pena), 155 F.3d 1108, 1111(9th Cir. 1998) (citations omitted) (stating debtors must show more than a "garden-variety hardship").

(50.) See, e.g., Goodman v. U.S. Dep't of Educ. (In re Goodman), 449 B.R. 287, 294 (Bankr. N.D. Ohio 2011); Correll v. Union Nat'l Bank of Pittsburgh (In re Correll), 105 B.R. 302, 306 (Bankr. W.D. Pa. 1989).

(51.) United Student Aid Funds, Inc. v. Nascimento (In re Nascimento), 241 B.R. 440, 445 (B.A.P. 9th Cir. 1999) (citing Tenn. Student Assistance Corp. v. Hornsby (In re Hornsby), 144 F.3d 433, 437 (6th Cir. 1998)).

(52.) Douglas v. Educ. Credit Mgmt. Corp., 366 B.R. 241,253 (Bankr. M.D. Ga. 2007) (citing Ivory v. United States (In re Ivory), 269 B.R. 890, 899 (Bankr. N.D. Ala. 2001).

(53.) Id. (emphasis in original).

(54.) See Williams v. EFG Tech/Rutgers (In re Williams), 296 B.R. 128, 134 (Bankr. D.N.J. 2003).

(55.) See Rifino v. United States (In re Rifino), 245 F.3d 1083, 1088 (9th Cir. 2001). Some courts consider whether a debtor has maximized their income under the first prong of the Brunner Test, while others consider it under either the second or third prong. See Flores v. U.S. Dep't of Educ. (In re Flores), 282 B.R. 847, 854 (Bankr. N.D. Ohio 2005) (considering whether the debtor maximized under the first prong of the Brunner Test); but cf. Storey v. Nat'l Enter. Sys. (In re Storey), 312 B.R. 867, 87273 (Bankr. N.D. Ohio 2004) (considering whether the debtor maximized under the second prong of the Brunner Test); Educ. Credit Mgmt. Corp. v. Polleys (In re Polleys), 356 F.3d 1302, 1309 (10th Cir. 2004) (considering whether the debtor maximized under the third prong of the Brunner Test).

(56.) See Marshall v. Student Loan Corp. (In re Marshall), 430 B.R. 809, 814 (Bankr. S.D. Ohio 2010) (citing Mitcham v. U.S. Dep't of Educ. (In re Mitcham), 293 B.R. 138, 144 (Bankr. N.D. Ohio 2003)).

(57.) Elmore v. Mass. Higher Educ. Assistance Corp. (In re Elmore), 230 B.R. 22, 26 (Bankr. D. Conn. 1999); see also Mallinckrodt v. Chem. Bank (In re Mallinckrodt), 260 B.R. 892, 903 (Bankr. S.D. Fla. 2001), rev'd on other grounds, 274 B.R. 560 (S.D. Fla. 2002) (stating that the debtor did not live "lavishly," but instead survived paycheck to paycheck, satisfying Part I of the Brunner Test).

(58.) See, e.g., Mosley v. Gen. Revenue Corp. (In re Mosley), 330 B.R. 832, 841 (Bankr. N.D. Ga. 2005).

(59.) See In re Mason, 456 B.R. 245, 250 (Bankr. N.D.W. Va. 2011) (stating Congress prefers Chapter 13's over Chapter 7's in regards to student loans); Educ. Credit Mgmt. Corp. v. Savage (In re Savage), 311 B.R. 835, 841 (B.A.P. 1st Cir. 2004) (referring to the more liberal standard in Chapter 13's); Swanson v. Sheppard, 445 N.W.2d 654, 656 (N.D. 1989) (stating, "It is undisputed that student-loan obligations are treated differently under Chapter 7 and Chapter 13 bankruptcies.").

(60.) See Raisor v. Educ. Loan Servicing Ctr., Inc. (In re Raisor), 180 B.R. 163, 166-67 (Bankr. E.D. Tex. 1995) (stating that the appropriate time to determine whether a student loan would cause an undue hardship for the debtors is near or at the time the Chapter 13 plan is scheduled for completion).

(61.) See, e.g., Coleman v. Educ. Credit Mgmt. Corp. (In re Coleman), 333 B.R. 841,848 (Bankr. N.D. Cal. 2005).

(62.) Id. (citing Cota v. U.S. Dep't of Educ. (In re Cota), 298 B.R. 408, 414-15 (Bankr. D. Ariz. 2003); Ritchie v. Nw. Educ. Loan Ass'n (In re Ritchie), 254 B.R. 913,918 (Bankr. D. Idaho 2000)).

(63.) Goranson v. Pa. Higher Educ. Assistance Agency (In re Goranson), 183 B.R. 52, 55 (Bankr. W.D.N.Y. 1995).

(64.) Id.

(65.) Id.

(66.) For a good example of how a court breaks down a debtor's income and expenses item-by-item, see Grove v. Educ. Credit Mgmt. Corp. (In re Grove), 323 B.R. 216, 220-221 (Bankr. N.D. Ohio 2005).

(67.) See, e.g., McLaney v. Ky. Higher Educ. Assistance Auth. (In re McLaney), 375 B.R. 666, 674-75 (M.D. Ala. 2007) (discussing various expenses and their necessity).

(68.) Educ. Credit Mgmt. Corp. v. Waterhouse, 333 B.R. 103, 109-110 (W.D.N.C. 2005) (stating that a combined car payment of $907.95 on two cars was excessive since both debtors worked at the same place).

(69.) See, e.g., Salyer v. Sallie Mae Servicing Corp. (In re Salyer), 348 B.R. 66, 71 (Bankr. M.D. La. 2006) (denying undue hardship partially based upon the fact that debtors had duplicated long distance telephone service from two sources: cell and ground line).

(70.) Educ. Credit Mgmt. Corp. v. Rhodes (In re Rhodes), 464 B.R. 918, 923 (W.D. Wash. 2012).

(71.) Educ. Credit Mgmt. Corp. v. Howe (In re Howe), 319 B.R. 886, 890 (B.A.P. 9th Cir 2005).

(72.) See Ciesicki v. Sallie Mac, et al. (In re Ciesicki), 292 B.R. 299, 304 (Bankr. N.D. Ohio 2003).

(73.) See Census Bureau Median Family Income By Family Size, U.S. DEP'T OF JUSTICE (July 10, 2012, 3:30 PM) http://www.justice.gov/usffeo/bapcpa/20120501/bci_data/median_income_table.htm (containing the tables for determining whether a debtor's income falls below the necessary limit to file an Chapter 7 bankruptcy).

(74.) The Form for Chapter 7 is Form 22A. Means Testing: Census Bureau, IRS Data and Administrative Expenses Multipliers, U.S. DEP'T OF JUSTICE (Oct. 9, 2012, 4:52 PM), http://www.justic e.gov/ust/eo/bapcpa/meanstesting.htm.

(75.) The Form for Chapter 13 is Form 22C. Id.

(76.) See generally Edward P. Jurkiewicz, Living with the Means Test." Understanding and Anticipating Its Pitfalls and Counseling Clients Effectively, in UNDERSTANDING THE EFFECTS OF BAPCPA: LEADING LAWYERS ON EXAMINING BAPCPA CHANGES, ADOPTING NEW FILING STRATEGIES, AND ANALYZING CONSUMER BANKRUPTCY TRENDS 65 (2010), available at 2010 WL 1972498 (discussing the "means test" and how it is applied in Chapter 7 and 13 bankruptcies).

(77.) See, e.g., Grove v. Educ. Credit Mgmt. Corp. (In re Grove), 323 B.R. 216, 223-24 (Bankr. N.D. Ohio 2005); Rutherford v. William D. Ford Direct Loan Program (In re Rutherford), 317 B.R. 865, 879 (Bankr. N.D. Ala. 2004); Stein v. Bank of New England (In re Stein), 218 B.R. 281,287 (Bankr. D. Conn. 1998).

(78.) Stein, 218 B.R. at 289.

(79.) Id. at 287-88.

(80.) Matthews-Hamad v. Educ. Credit Mgmt. Corp. (ln re Matthews-Hamad), 377 B.R. 415,421-22 (Bankr. M.D. Fla. 2007); see also Hatfield v. William D. Ford Fed. Direct Consolidation Program (In re Hatfield), 257 B.R. 575, 581 (Bankr. D. Mont. 2000) (citations omitted) (stating that the second prong of the Brunner Test promotes the Congressional intent to make discharging federal student loans more difficult).

(81.) Matthew-Hamad, 377 B.R. at 421-22 (citations omitted).

(82.) Thornton v. U.S. Dep't of Educ. (ln re Thornton), 352 B.R. 625, 627 (Bankr. N.D.W. Va. 2006) (citations omitted).

(83.) Buckland v. Educ. Credit Mgmt. Corp. (In re Buckland), 424 B.R. 883, 891 (Bankr. D. Kan. 2010).

(84.) Nys v. Educ. Credit Mgmt. Corp. (In re Nys), 308 B.R. 436, 443 (B.A.P. 9th Cir. 2004).

(85.) Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 46 B.R. 752, 755 (S.D.N.Y. 1985) (citations omitted). Various other cases have referred to only one of these factors being present constituting extraordinary circumstances. See, e.g., Fin. Collection Agencies v. Norman (In re Norman), 25 B.R. 545,550 (Bankr. S.D. Cal. 1982) (holding that an illness constituted exceptional circumstances); Clay v. Westmar Coll. (ln re Clay), 12 B.R. 251,254 (Bankr. N.D. Iowa 1981) (holding a large number of dependants constitutes exceptional circumstances); Siebert v. U.S. Gov't Dep't of Health Educ. & Welfare (In re Siebert), 10 B.R. 704, 705 (S.D. Ohio 1981) (stating that the lack of usable job skills represents exceptional circumstances).

(86.) See Fischer v. State Univ. of N.Y. (ln re Fischer), 23 B.R. 432, 434 (Bankr. W.D. Ky. 1982) (stating that conscious decisions of the debtor cannot be the type of exceptional circumstance allowing discharge).

(87.) 308 B.R.436 (B.A.P. 9th Cir. 2004).

(88.) Id. at 446.

(89.) Id. 446-47 (citations omitted). The remaining circumstances listed by the court, but not discussed in this article, are:

   7. Maximized income potential in the chosen educational field, and
   no other more lucrative job skills; 8. Limited number of years
   remaining in work life to allow payment of the loan; 9. Age or
   other factors that prevent retraining or relocation as a means for
   payment of the loan; 10. Lack of assets, whether or not exempt,
   which could be used to pay the loan; 11. Potentially increasing
   expenses that outweigh any potential appreciation in the value of
   the debtor's assets and/or likely increases in the debtor's income;
   12. Lack of better financial options elsewhere.


Id. at 447.

(90.) Points 3 through 6 are disturbing since the goal of going to college is to receive an education providing job skills. If a person is graduating from school without job skills, then the school should be accountable in some fashion. Nonetheless, that is for another article to discuss.

(91.) See, e.g., McLaney v. Ky. Higher Educ. Assistance Auth. (In re McLaney), 314 B.R. 228, 237 (Bankr. M.D. Ala. 2004).

(92.) See id. at 237-38 (stating that the poor health of the debtors will cause their income to remain stagnant while their expenses will continue to increase).

(93.) But see Stein v. Bank of New England (In re Stein), 218 B.R. 281,288-90 (Bankr. D. Conn. 1998) (stating that despite the debtor's wife's serious illness, the debtor could still pay the student loans).

(94.) See, e.g., Carlson v. UNIPAC Student Loan (In re Carlson), 273 B.R. 481 (Bankr. D.S.C. 2001); Brightful v. Pa. Higher Educ. Assistance Agency (ln re Brightful), 267 F.3d 324, 329-30 (3d Cir. 2001) (fmding that even though the debtor claimed she suffered from emotional and psychiatric infirmities, debtor presented no proof and failed the second prong of the Brunner Test).

(95.) Buckland v. Educ. Credit Mgmt. Corp., 424 B.R. 883 (Bankr. D. Kan. 2010).

(96.) Id. at 891-92,894.

(97.) Swinney v. Academic Fin. Servs., et al. (In re Swinney), 266 B.R. 800, 805 (Bankr. N.D. Ohio 2001).

(98.) See, e.g., Green v. Sallie Mae Servicing Corp. (In re Green), 238 B.R. 727, 737 (Bankr. N.D. Ohio 1999) (debtor diagnosed with bipolar disorder entitled to hardship discharge of student loan debt); Meting v. U.S. Dep't of Educ. (In re Meling), 263 B.R. 275, 279 (Bankr. N.D. Iowa 2001) (holding that debtor with bipolar disorder was allowed to be discharged of student loans).

(99.) See, e.g., Hatfield v. William D. Ford Fed. Direct Consolidation Program, et al. (In re Hatfield), 257 B.R. 575,581-82 (Bankr. D. Mont. 2000) (citing Roberson v. Ill. Student Assistance Comm'n (In re Roberson), 999 F.2d 1132, 1135 (7th Cir. 1993)).

(100.) King v. Vt. Student Assistance Corp. (In re King), 368 B.R. 358,371 (Bankr. D. Vt. 2007).

(101.) See, e.g., Narayanan v. N.H. Higher Educ. Assistance Found., et al (In re Narayanan), 2009 WL 2392497, at *4 (Bankr. D.N.H. 2009); Farrish v. U.S. Dep't. of Educ. (In re Farrish), 272 B.R. 456, 462-63 (Bankr. S.D. Miss. 2001) (citations omitted); but see Chapelle v. Educ. Credit Mgmt. Corp. (In re Chapelle), 328 B.R. 565, 573 (Bankr. C.D. Cal. 2005) (providing an example where unemployment or underemployment was not a cause for discharge).

(102.) Paul v. Suffolk Univ. (In re Paul), 337 B.R. 730, 737 (Bankr. D. Mass. 2006) (citing Healey v. Mass. Higher Educ. (In re Healey), 161 B.R. 389 (E.D. Mich. 1993)).

(103.) See, e.g., Perkins v. Pa. Higher Educ. Assistance Agency (In re Perkins), 318 B.R. 300, 310-11 (Bankr. M.D.N.C. 2004) (considering circumstances such as marketable job skills and education); Thomsen v. U.S. Dep't of Educ. (In re Thomsen), 234 B.R. 506, 513 (Bankr. D. Moat. 1999) (stating debtor's underemployment contributed to the discharge of debtor's student loans).

(104.) See, e.g., G-rove v. Educ. Credit Mgmt. Corp. (In re Grove), 323 B.R. 216,224-25 (Bankr. N.D. Ohio 2005).

(105.) See, e.g., Oyler v. Educ. Credit Mgmt. Corp. (In re Oyler), 397 F.3d 382, 386 (6th Cir. 2005) (denying a discharge because a pastor of a small church did not supplement his income or get a higher paying job he was qualified for).

(106.) See Educ. Credit Mgmt. Corp. v. Fmshour (In re Frushour), 433 F.3d 393,401 (4th Cir. 2005).

(107.) See In re Newell, No. 04-13285, 2007 WE, 3023455, at *6 (Bankr. E.D. Tenn. Oct. 12, 2007) (discussing the discharge of debts other than federal student loans).

(108.) Educ. Credit Mgmt. Corp. v. Polleys (In re Polleys), 356 F.3d 1302, 1306-07 (10th Cir. 2004) (citing REPORT OF THE COMM'N ON THE BANKR. LAWS OF THE UNITED STATES, H.R. DOC. NO. 93-137, Pt. II [section] 4-506 (1973), reprinted in COLLIER ON BANKRUPTCY, App. Pt. 4(c) at 4-710 (15th ed. rev. 2003) (current version at COLLIER ON BANKRUPTCY, App. Pt. 4(c) at 4-710 (16th ed. rev. 2012)).

(109.) See Grove, 323 B.R. at 224-25.

(110.) Id.

(111.) Id.

(112.) Goodman v. U.S. Dep't of Educ., 449 B.R. 287 (Bankr. N.D. Ohio 2011).

(113.) Id. at 295.

(114.) See, e.g., Smith v. N.Y. State Higher Educ. Servs. Corp. (In re Smith), 45 B.R. 711, 714 (Bankr. W.D.N.Y. 1985); Johnson v. USA Funds, Inc. (In re Johnson), 121 B.R. 91, 93 (Bankr. N.D. Okla. 1990) (citations omitted).

(115.) Wardlow v. Great Lakes Higher Educ. Corp. (In re Wardlow), 167 B.R. 148, 152 (Bankr. W.D. Mo. 1993).

(116.) Mayer v. Pa. Higher Educ. Assistance Agency (In re Mayer), 198 B.R. 116, 126 (Bankr. E.D. Pa. 1996).

(117.) Id.

(118.) Ill. Student Assistance Comm'n v. Cox (In re Cox), 273 B.R. 719, 723-24 (N.D. Ga. 2002) (stating that the debtor failed to satisfy Part II of the Brunner Test, thus reversing the decision to partially reduce the debtors student loan amount).

(119.) See B.J. Huey, Comment, Undue Hardship or Undue Burden: Has The Time Finally Arrived For Congress To Discharge Section 523(A)(8) Of The Bankruptcy Code?, 34 TEX. TECH L. REV. 89, 122 (2002) (discussing the original intent of the Bankruptcy Code).

(120.) Ulm v. Educ. Credit Mgmt. Corp. (In re Ulm), 304 B.R. 915,922 (S.D. Ga. 2004).

(121.) Fabrizio v. U.S. Dep't of Educ. Borrower Servs. Dep't Direct Loans (In re Fabrizio), 369 B.R. 238, 244 (Bankr. W.D. Pa. 2007) (citations omitted).

(122.) Borrowers: Common Questions, NELNET, http://www.nelnet.net/faq.asp (last visited Feb. 6, 2013); see also Recent Changes to the Student Aid Programs, FEDERAL STUDENT AID, U.S. DEP'T OF EBUC., http://studentaid.ed.gov/about/announcements/recent-changes (last visited Feb. 18, 2013).

(123.) Borrowers: Common Questions, NELNET, http://www.nelnet.net/faq.asp (last visited Feb. 6, 2013).

(124.) See, e.g., Kraft v. N.Y. State Higher Educ. Servs. Corp. (In re Kraft), 161 B.R. 82, 86 (Bankr. W.D.N.Y. 1993) (stating debtor failed to establish good faith because she had only been out of school for eighteen months); Sands v. United Student Aid Funds, Inc. (In re Sands), 166 B.R. 299, 312 (Bankr. W.D. Mich. 1994) (noting time taken by petitioner was distinguishable from other cases because of the time the debtor waited).

(125.) See Fabrizio, 369 B.R. at 244 (citations omitted).

(126.) See Aaron N. Taylor, Undo Undue Hardship: An Objective Approach to Discharging Federal Student Loans in Bankruptcy, 38 J. LEGIS. 185, 216-17 (2012).

(127.) See, e.g., Marshall v. Student Loan Corp. (In re Marshall), 430 B.R. 809, 814-15 (Bankr. S.D. Ohio 2010).

(128.) See, e.g., Straub v. Sallie Mae Educ. Credit Mgmt. Corp. (In re Straub), 435 B.R. 312, 317-18 (Bankr. D.S.C. 2010); Educ. Credit Mgmt. Corp. v. Jesperson, 571 F.3d 775, 781-82 (8th Cir. 2009); Educ. Credit Mgmt. Corp. v. Mason (In re Mason), 464 F.3d 878, 884-85 (9th Cir. 2006); Tirch v. Pa. Higher Educ. Assistance Agency (In re Tirch), 409 F.3d 677, 680 (6th Cir. 2005).

(129.) See 11 U.S.C. [section] 523(a)(8) (2006). See also Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (failing to change the requirements of 11 U.S.C. [section] 523(a)(8)).

(130.) See, e.g., Marshall, 430 B.R. at 816.

(131.) See, e.g., Pa. Higher Educ. Assistance Agency v. Birrane (In re Birrane), 287 B.R. 490, 500 (B.A.P. 9th Cir. 2002) (failing the "good faith" prong of the Brunner Test because debtor did not apply for the ICR plan).

(132.) See Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, [section] 523(a)(8), 92 Stat. 2549, 2591 (codified at 11 U.S.C. [section] 523 (a)(8)); S. REP. NO. 95-989, at 79 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5865.

(133.) Bankruptcy Reform Act, [section] 523(a)(8).

(134.) See H.R. DOC. NO. 93-137 (1973), reprinted in COLLIER ON BANKRUPTCY, App. Pt. 4(c) 4-432 (16th rev. ed. 2012).

(135.) H.R. REP. NO. 94-1232, at 13 (1976).

(136.) Id. at 13-14.

(137.) See, e.g., Educ. Credit Mgmt. Corp. v. Mersmann (In re Mersmann), 505 F.3d 1033, 1042 (10th Cir. 2007) (noting both the five-year and later the seven-year waiting periods); Ga. Higher Educ. Assistance Corp. v. Bell (In re Bell), 5 B.R. 461,462-63 (Bankr. Ga. 1980) (describing the then five-year waiting period to discharge student loans).

(138.) See Nunn v. Washington (In re Nunn), 788 F.2d 617, 619 (9th Cir. 1986) (holding that a five-year period for the discharge of federal student loans began after the first installment payment comes due).

(139.) H.R. REP. NO. 94-1232, at 14.

(140.) See Thorson v. Cal. Student Aid Comm'n (In re Thorson), 195 B.R. 101, 103 (B.A.P. 9th Cir. 1996) (providing an example of how a court determines whether the debtor has reached five years of repayments).

(141.) See Nunn, 788 F.2d at 619.

(142.) The Bankruptcy Code was amended in November of 1990 by replacing the five year waiting period with "such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years. ..." Crime Control Act of 1990, Pub. L. No. 101-647, [section] 3621, 104 Stat. 4789, 4965 (codified as amended at 11 U.S.C. [section] 523(a)(8)(A)).

(143.) Student Loan Default Prevention Initiative Act of 1990, Pub. L. No. 101-508, [section] 3007, 104 Stat. 1388, 1388-28 (within the Omnibus Budget Reconciliation Act of 1990).

(144.) Pub. L. No. 105-244, [section] 971(a), 112 Stat. 1581, 1837.

(145.) See Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1173 (9th Cir. 2003) (citations omitted); United Student Aid Funds, Inc. v. Nascimento (In re Nascimento), 241 B.R. 440, 444 (B.A.P. 9th Cir. 1999). See also Strauss v. Student Loan Office-Mercer Univ. (In re Strauss), 216 B.R. 638, 641 (Bankr. N.D. Cal. 1998) (recognizing a creditor's argument that each part must be proven separately).

(146.) 271 B.R. 256 (S.D.W. Va. 2002), rev'd sub nom. Ekenasi v. Educ. Res. Inst., 325 F.3d 541 (4th Cir. 2003).

(147.) Id. at 259.

(148.) Id.

(149.) Id. at 263.

(150.) Ekenasi v. Educ. Res. Inst. (In re Ekenasi), 325 F.3d 541, 550 (4th Cir. 2003).

(151.) Ill. Student Loan Assistance Comm'n v. Cox, 273 B.R. 719, 724 (N.D. Ga. 2002) (stating that the debtor failed to satisfy Part II of the Brunner Test, thus reversing the decision to partially reduce the debtors student loan amount).

(152.) COLLIER, supra note 8, at [paragraph] 523.14[1] (references omitted).
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