Rudnicki v. S. Coll. of Optometry (In Re Rudnicki), 228 B.R. 179 (6th Cir. BAP 1999). · Go Syfert
Rudnicki v. S. Coll. of Optometry (In Re Rudnicki), 228 B.R. 179 (6th Cir. BAP 1999). Cases Citing This Book View Copy Cite
23 citation events (12 in the last 25 years) across 14 distinct courts.
Strongest positive: In re: Howard D. Juntoff (ca6, 2022-03-21)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) In re: Howard D. Juntoff
6th Cir. · 2022 · confidence medium
“De novo review requires the Bankruptcy Appellate Panel to interpret statutes independently of the determination of the bankruptcy court.” Rudnicki v. S. Coll. of Optometry (In re Rudnicki), 228 B.R. 179, 180 (B.A.P. 6th Cir. 1999) (citing Nat’l City Bank v. Elliott (In re Elliott), 214 B.R. 148, 149 (B.A.P. 6th Cir. 1997)); see also Plymouth Park Tax Servs., LLC v. Bowers (In re Bowers), 759 F.3d 621, 625 (6th Cir. 2014) (citation omitted) (“De novo review Nos. 21-8011/8012 In re Juntoff Page 4 In re McPherson requires the appellate court to determine the law at issue independently of…
discussed Cited as authority (rule) Schultz v. U.S. Department of Education
Bankr. D. Minn. · 2020 · confidence medium
See Hiatt v. Ind. State Student Assistance Comm’n, 36 F.3d 21, 23 (7th Cir. 1994); Rudnicki v. S. Coll. of Optometry (In re Rudnicki), 228 B.R. 179, 181 (B.A.P. 6th Cir. 1999); Martin v. Great Lakes Higher Educ.
discussed Cited as authority (rule) Moon v. Iowa Student Loan Liquidity Corporation
Bankr. E.D. Wis. · 2019 · confidence medium
See In re Drysdale, 248 B.R. 386, 390-91 (B.A.P. 9th Cir. 2000), aff’d, 2 F. App’x 776 (9th Cir. 2001) (holding the loan consolidated by a nonprofit to be the loan at issue when the debtor’s original loans included a student loan issued by Citibank, a private for-profit lender); In re Rudnicki, 228 B.R. 179, 181 (B.A.P. 6th Cir. 1999) (finding the loan consolidated by a private entity, but guaranteed by a nonprofit, to be the loan at issue when the debtor’s original loans included loans issued by SallieMae and Ameritrust, both private, for- profit lenders).
discussed Cited as authority (rule) Grubin v. Sallie Mae Servicing Corp. (In re Grubin)
Bankr. E.D.N.Y. · 2012 · confidence medium
Hiatt v. Indiana State Student Assistance Comm’n, 36 F.3d 21, 23-24 (7th Cir.1994) (holding that the consolidation of student loan debt extinguished the prior obligation and gave rise to a new obligation as of the time of consolidation); Educational Credit Mgm’t Corp. v. McBurney (In re McBurney), 357 B.R. 536, 538-39 (9th Cir. BAP 2006) (adopting Hiatt’s reasoning and holding that a post-petition student loan consolidation gives rise to a new, post- petition obligation); Rudnicki v. Southern College of Optometry (In re Rudnicki), 228 B.R. 179, 180-81 (6th Cir. BAP 1999) (agreeing with H…
discussed Cited as authority (rule) Barrett v. Great Lakes (In Re Barrett)
Bankr. N.D. Ohio · 2009 · confidence medium
Although different reasoning has been employed, this approach, of finding that a debtor’s consolidation of their student-loan debt creates a new debt, has been widely applied. 3 Most significantly for purposes *478 of this decision, in the case of Rudnicki v. Southern College of Optometry (In re Rudnicki), the Bankruptcy Appellate Panel for the Sixth Circuit held that the relevant date for purposes of determining THE dischargeability of a student-loan obligation is the date when the consolidated loan first became due. 228 B.R. 179, 181 (6th Gir.
cited Cited as authority (rule) Educational Credit Management Corp. v. McBurney
9th Cir. BAP · 2006 · confidence medium
Coll. of Optometry (In re Rudnicki), 228 B.R. 179, 181 (6th Cir. BAP 1999).
cited Cited as authority (rule) In Re McBurney
9th Cir. BAP · 2006 · confidence medium
Coll. of Optometry (In re Rudnicki), 228 B.R. 179, 181 (6th Cir. BAP 1999).
discussed Cited as authority (rule) Burns v. Massachusetts Higher Education Assistance Corp. (In Re Burns)
Bankr. D. Mass. · 2005 · confidence medium
Comm., 36 F.3d 21, 24 (7th Cir.1994); U.S. v. McGrath, 143 B.R. 820 (D.Md.1992), aff'd, 8 F.3d 821 (4th Cir.1993); Rudnicki v. Southern College of Optometry (In re Rudnicki), 228 B.R. 179, 181 (6th Cir. BAP 1999); Powers v. Southwest Student Servs.
discussed Cited as authority (rule) Tift County Hospital Authority v. Nies (In Re Nies) (2×) also: Cited "see, e.g."
Bankr. D. Mass. · 2005 · confidence medium
Courts have roundly agreed that the act of consolidating student loans creates a new loan which pays off the original loans and begins the seven year clock anew.” 238 B.R. at 678 (citing Rudnicki v. Southern College of Optometry (In re Rudnicki), 228 B.R. 179, 181 (6th Cir. BAP 1999))(emphasis supplied).
discussed Cited as authority (rule) Drysdale v. Educational Credit Management Corp. (In Re Drysdale)
9th Cir. BAP · 2000 · confidence medium
In making this decision, the court cited Hiatt v. Indiana State Student Assistance Comm., 36 F.3d 21, 24 (7th Cir.1994), and Rudnicki v. Southern College of Optometry (In re Rudnicki), 228 B.R. 179, 181 (6th Cir. BAP 1999).
discussed Cited as authority (rule) Sheer v. Educational Credit Management Corp. (In Re Sheer)
D. Maryland · 1999 · confidence medium
Servs., Inc. v. Segal (In re Segal), 57 F.3d 342 , 349 n. 8 (3d Cir.1995) (noting that courts “routinely” view consolidation loans as educational loans within the meaning of § 523(a)(8)); see also Hiatt v. Indiana State Student Assistance Comm’n, 36 F.3d 21, 25 (7th Cir.1994) (recognizing that consolidation loans are educational loans within the meaning of § 523(a)(8) by holding that seven year period of nondischargeability runs from the date the consolidation loan first becomes due, rather than from due date of original loans); Rudnicki v. Southern College of Optometry (In re Rudnicki…
discussed Cited as authority (rule) Shaffer v. United Student Aid Funds, Inc. (In Re Shaffer)
Bankr. N.D. Tex. · 1999 · confidence medium
See e.g., Hiatt v. Indiana State Student Assistance Commission, 36 F.3d 21, 24 (7th Cir.1994) (noting that a consolidation loan under the Higher Education Act is, in fact, a second government guaranteed student loan); Cobb v. United Student Aid Funds, Inc. (In re Cobb), 196 B.R. 34, 37 (Bankr.E.D.Va.1996) (describing a consolidation loan as being "in essence a second government guaranteed student loan”); Santa Fe Medical Services, Inc. v. Segal (In re Segal), 57 F.3d 342 , 349 n. 8 (3rd Cir.1995) (in dicta, noting that courts routinely view consolidation loans as educational loans within the…
discussed Cited "see" Levernier v. Student Loan Marketing Ass'n (In Re Levernier)
Bankr. C.D. Cal. · 1999 · signal: see · confidence high
See Rudnicki v. Southern College of Optometry (In re Rudnicki), 228 B.R. 179, 181 (6th Cir. BAP 1999) (finding that the relevant date for purposes of determining dischargeability is the date when the consolidated loan first became due); Mattingly v. New Jersey Higher Educ.
examined Cited "see" United Student Aid Funds v. Flint (In Re Flint) (4×) also: Cited "see, e.g."
E.D. Mich. · 1999 · signal: see · confidence high
See In re Rudnicki, 228 B.R. 179, 180 (6th Cir. BAP 1999).
discussed Cited "see, e.g." Kopf v. United States Department of Education (In Re Kopf)
Bankr. D. Me. · 2000 · signal: see, e.g. · confidence low
See, e.g., Rudnicki v. Southern College of Optometry (In re Rudnicki), 228 B.R. 179 (6th Cir. BAP 1999)(addressing the calculation of the seven year period vis-a-vis consolidated loans). 7 .The Joint Explanatory Statement of the Committee of Conference for the Higher Education Amendments of 1998 stated: The conferees, in the effort to ensure the budget neutrality of this bill, adopted a provision eliminating the current bankruptcy discharge for student borrowers after they have been in repayment for seven years.
Retrieving the full opinion text from the archive…
In Re Daniel P. RUDNICKI and Laura Rudnicki, Debtors. Daniel P. Rudnicki and Laura Rudnicki, Plaintiffs-Appellees,
v.
Southern College of Optometry, Defendant, United Student Aid Funds, Inc., Defendant-Appellant
BAP 98-8017.
Bankruptcy Appellate Panel of the Sixth Circuit.
Jan 13, 1999.
228 B.R. 179
Simon Groner, Cincinnati, Ohio, on brief, for Appellant.
Baxter, Lundin, Stosberg.
Cited by 18 opinions  |  Published

OPINION

This appeal concerns the effect of loan consolidation on the calculation of the seven year period for the nondischargeability of student loans under (former) [1] 11 U.S.C. § 523(a)(8)(A). The bankruptcy court determined that the date the original student loans first became due governed calculation of the seven year nondischargeability period. We find contrary intent in § 523(a)(8) and hold that the seven year period is counted from the date the consolidated loan first be[*180] came due. Accordingly, we reverse the bankruptcy court.

I.ISSUE ON APPEAL

Whether the seven year period of nondis-chargeability for student loans under 11 U.S.C. § 523(a)(8)(A) is measured from the date the original loans first became due or from the date the consolidated loan first became due.

II.JURISDICTION AND STANDARD OF REVIEW

The United States District Court for the Southern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel of the Sixth Circuit. The BAP has jurisdiction to hear appeals of final orders. “Determinations of nondischargeability under § 523(a) are final orders for appeal purposes.” National City Bank v. Plechaty (In re Plechaty), 213 B.R. 119, 121 (6th Cir. BAP 1997) (citations omitted).

The bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See, e.g., Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994); Pleehaty, 213 B.R. at 121. De novo review requires the Panel to interpret statutes independently of the determination of the bankruptcy court. National City Bank v. Elliott (In re Elliott), 214 B.R. 148, 149 (6th Cir. BAP 1997). The bankruptcy court’s interpretation of § 523(a)(8) is reviewed de novo. See Andrews University v. Merchant, 958 F.2d 738, 739 (6th Cir.1992); Dolph v. Pennsylvania Higher Educ., Assistance Agency, 215 B.R. 832, 834 (6th Cir. BAP 1998).

III.FACTS

The Debtor, David P. Rudnicki, received student loans from Southern Ohio College of Optometry ($5,700 and $8,600), Ameritrust ($900), and Sallie Mae ($25,000). Although the promissory notes are not in the record, it is undisputed that these original student loans first became due no later than December 1,1987.

In 1988, Rudnicki consolidated these student loans with Chase Manhattan Bank (“Chase”) as the lender and United Student Aid Funds, Inc. (“USA Funds”) as guarantor. On December 23,1988, Rudnicki received the consolidated loan from Chase in the principal amount of $39,828.54. The holders of the original student loan notes were paid in full. The consolidated loan was to be repaid over 25 years with the first payment due on January 22,1989.

Rudnicki filed a Chapter 7 bankruptcy case on November 2,1995. Rudnicki filed an adversary proceeding seeking to discharge the student loans under 11 U.S.C. § 523(a)(8)(A) on the theory that the original loans first became due more than seven years prior to the petition. USA Funds moved for summary judgment asserting that its debt was nondischargeable because the consolidated loan became due less than seven years before bankruptcy. The bankruptcy court discharged the consolidated loan debt, holding that the seven year period in § 523(a)(8)(A) commenced when the original loans first became due. USA Funds timely appealed.

IV.DISCUSSION

Section 523(a)(8) governs the discharge-ability of educational loans:

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(8) for an educational benefit overpayment or 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, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless—
(A) such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition; or
(B) excepting such debt from discharge under this paragraph will[*181] impose an undue hardship on the debtor and the debtor’s dependents[.]

11 U.S.C. § 523(a)(8) (1994 & Supp.1997). The Debtor did not allege “undue hardship.” Section 523(a)(8)(A) is the only avenue to discharge for this Debtor.

A majority of courts, including the United States Court of Appeals for the Seventh Circuit, has held that a consolidated student loan is a new loan for purposes of § 523(a)(8)(A). See Hiatt v. Indiana Student Assistance Comm’n (In re Hiatt), 36 F.3d 21, 23 (7th Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1109, 130 L.Ed.2d 1074 (1995); Graddy v. United States (In re Graddy), Case No. 98-22821-B, Adv. No. 98-0317, 1998 WL 661457 (W.D.Tenn., Sept. 24, 1998) (collecting cases); Mattingly v. New Jersey Higher Educ. Assistance Auth. (In re Mattingly), 226 B.R. 583, 585 (Bankr.W.D.Ky.1998) (collecting cases).

This Panel is persuaded that consolidation of Rudnieki’s loan extinguished the original promissory notes, and that the seven year period in § 523(a)(8)(A) began when the consolidated loan first became due on January 22, 1989. When Rudnicki consolidated his student loans, he received a new loan from Chase, the proceeds of which paid in full his original educational loans. See 20 U.S.C. § 1078. [2] The only student loan debt owed by Rudnicki at the bankruptcy petition was the consolidated loan. The consolidated loan first became due within seven years of bankruptcy and is not dischargeable under § 523(a)(8)(A).

As explained by Judge Roberts in Mattingly:

[T]he language of § 523(a)(8)(A) ... states that “such loan” may be discharged if it first became due within the seven year period preceding bankruptcy.... “[S]ueh loan” refers to the “loan which created the debt sought to be discharged;” that is, the consolidation loan, not the original loan.... By consolidating the original loan, that loan becomes extinguished and a new, consolidation loan is created.
Accordingly, based on the plain language of § 523(a)(8)(A), the relevant date for purposes of determining dischargeability is the date when the consolidated loan first became due. If it became due within the seven years preceding bankruptcy, the debt is nondischargeable pursuant to § 523(a)(8). The date that the original loan became due is irrelevant. That loan has been extinguished, and hence is not the debt sought to be discharged.

Mattingly, 226 B.R. at 585 (internal citations omitted).

Y. CONCLUSION

Accordingly, the judgment of the bankruptcy court is REVERSED.

1

. 11 U.S.C. § 523(a)(8)(A) was repealed on October 7, 1998, to eliminate the discharge of student loans that have been in repayment for more than seven years. Higher Education Amendments of 1998, Pub.L. No. 105-244, § 971, 112 Stat. 1581, 1837 (1998). The repealer applies only to cases filed after the enactment date. Id.

2

. The Higher Education Act allows students to consolidate loans. The Act states in part:

Loans made under this section which are insured by the Secretary shall be considered to be new loans made to students for the purpose of section 424(a) [20 U.S.C. § 1074(a)] of this title.

20 U.S.C. § 1078-3(e). Upon consolidation, the Act requires that the Secretary or guaranty agency enter into an agreement which provides that the “proceeds of each consolidation loan will be paid by the lender to the holder of holders of the loans so selected to discharge the liability on such loans.” Id. § 1078 — 3(b)(1)(D).

The Higher Education Act "alerts borrowers and lenders that upon consolidation of loans governed by the Act, the original loans are discharged." Graddy, 1998 WL 661457, at *2.