In Re Marjorie Jo Faish, Debtor. Pennsylvania Higher Education Assistance Agency v. Marjorie Jo Faish (1996)

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1996)).

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1996)).

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 304-06 (3d Cir. 1995).

See Faish, 72 F.3d at 307 (“The financial straits of the bankruptcy petitioner in Brunner appear to have been far more serious than any short-term, belt-tightening that may be required of Faish in order to repay her student-loan obligation.”).

In re Faish, 72 F.3d 298, 301 (3d Cir. 1995) (citations omitted).

See id. (“The first prong of the Brunner analysis requires more than a showing of tight finances.”).

Courts of late have challenged interpretations that, through a 2 In ve Faish, 72 F.3d 298, 304-05 (3d Cir. 1995). combination of a legislative change and “tudicial gloss,” result in a test that is far more onerous than the one first articulated in Brunner.

Assistance Agency v. Faish, 72 F.3d 298, 300 (3d Cir. 1995).

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 300 (3d Cir.1995); Educ.

In defining undue hardship, “courts require more than temporary financial adversity, but typically stop short of utter hopelessness.” Id.; see In re Faish, 72 F.3d at 305 (“[T]he Bankruptcy Code does not require that the debtor ‘live in abject poverty ... before a student loan may be discharged.’ ”).

In re Faish, 72 F.3d at 306 (“If one of the requirements of the Brunner test is not met, the bankruptcy court's inquiry must end there, with a finding of no dischargeability.”).

Id. at 399-400 (quoting In re Rifino, 245 F.3d 1083 , 1087 (9th Cir. 2001), In re Faish, 72 F.3d 298, 302 (3d Cir. 1995)) (other citations omitted). 21.

Pennsylvania Higher Education Assistance Agency v. Faish, 72 F.3d 298, 305-06 (3d Cir. 1995) (quoting Brunner v. New York Higher Educ.

Assistance Agency v. Faish, 72 F.3d 298, 300 (3d Cir. 1995). (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is base…

In re Faish, 72 F.3d at 305-06 (“[T]he Brunner standard safeguards the financial integrity of the student loan program by not permitting debtors who have obtained the substantial benefits of an education funded by taxpayer dollars to dismiss their obligation merely because repayment of the borrowed funds would require some major personal and financial sacrifices.”); In re O'Hearn, 339 F.3d 559, 564 (7th Cir. 2003) (same); In re Cehula, 327 B.R. 241, 247 (Bankr.

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1995)).

A debtor seeking to discharge student loan debt governed by § 523(a)(8) assumes the burden of establishing that excepting that debt from discharge will cause the debtor and his or her dependents “undue hardship.” See In re Faish, 72 F.3d 298, 304-05 (3d Cir. 1995); In re Zierden-Landmesser, 249 B.R. 65, 69-70 (M.D.

In re Faish, 72 F.3d at 306.

See generally, In re Faish, supra, at 306 (“Equitable concerns or other extraneous factors not contemplated by the Brunner framework may not be imported into the court’s analysis to support a finding of discharge ability.”) Further, it is of no consequence to the Court whether the debt is likely to ever be paid in full, or to what extent a creditor will ultimately be able to recover on it.

Id.; see In re Faish, 72 F.3d at 305 (“[T]he Bankruptcy Code does not require that the debtor live in abject poverty ... before a student loan may be discharged.”).

Faish, 72 F.3d at 306 (“The Brunner standard meets the practical needs of the debtor by not requiring that he or she live in abject poverty ... before a student loan may be discharged.”); Ammirati, 187 B.R. at 907 ; Ekenasi, 271 B.R. at 262.

“In defining undue hardship, courts require more than temporary financial adversity, but typically stop short of utter hopelessness.” Id.; see In re Faish, 72 F.3d at 305 (“[T]he Bankruptcy Code does not require that the debtor ‘live in abject poverty ... before a student loan may be discharged.’ ”).

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir.1995)); see also Bacote v. Educ.

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1995)), aff’d, 84 F. App’x 158 (2d Cir. 2004).

Id. (citing In re Faish, 72 F.3d 298, 307 (3rd Cir. 1995) (emphasis added)); Matter of Thomas, 931 F.3d at 451 ; In re Thomas, 581 B.R. 481 , 485 (Bankr.

Conn. 1999) (quoting Pennsylvania Higher Education Assistance Agency v. Faish, 72 F.3d 298, 306 (3rd Cir.1995)); see also Lozada v. Educ.

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1995); Educ.

Assistance Agency v. Faish (In re Faish ), 72 F.3d 298, 306 (3d Cir.1995)) (internal quotation marks omitted).

In re Faish, 72 F.3d 298, 306 (3rd Cir. 1995). 2 Plaintiff argues that Brunner has been misinterpreted, citing In re Rosenberg, 610 B.R. 454 , 459 (Bankr.

Assistance Agency v. Faish, 72 F.3d 298, 305 (3d Cir. 1995) (quoting In re Robertson, 999 F.2d 1132, 1137 (7th Cir. 1993)).

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1995); Fourth: Educ.

In re Faish, 72 F.3d 298, 301 (3d Cir. 1995) (citations omitted); In re DiFrancesco, 607 B.R. 463 , 466-67 (Bankr.

See, e.g., In re Faish, 72 F.3d 298, 302 (3d Cir. 1995) (“[B]ankruptcy courts use a wide variety of tests to determine whether the debtor has demonstrated undue hardship,” which have “received varying degrees of acceptance.”); In re Woodcock, 45 F.3d 363, 367 (10th Cir. 1995) (identifying various tests).

Va. 1995) (denying discharge of educational debt and finding debtor incurred $35 per month on cable television); [Pa. Higher Ed. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 307 (3rd Cir. 1995)] (rejecting claim of undue hardship by debtor who wanted to buy a car rather than continue to take the bus); Perkins v. Vermont Student Assistance Corp., 11 B.R. 160, 161 (Bankr.

Assistance Agency v. Faish (In Re Faish), 72 F.3d 298, 307 (3d Cir. 1995) (requiring a showing of total incapacity).

Assistance Agency v. Paish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1995), cert, denied, 518 U.S. 1009 (1996)).

Proving that the debtor is currently having financial difficulties is not enough; rather the debtor must show “a total incapacity in the future to pay his debts for reasons not within his control.” Id. (quoting In re Faish, 72 F.3d 298, 307 (3d Cir. 1995)).

If the debtor fails to 17 satisfy any one of those elements, “‘the bankruptcy court’s inquiry must 18 end there, with a finding of no dischargeability.’” Id. at 1088 19 (quoting In re Faish, 72 F.3d 298, 306 (3d Cir. 1995)). 20 If a debtor proves the undue hardship test is met as to only a 21 portion of the debt, the court can partially discharge the debt.

Satisfying this prong “requires more than a showing of tight finances.” In re Faish, 72 F.3d 298, 306 (3d Cir. 1995).

The Third Circuit Court of Appeals set forth the following three-part test for the undue hardship exception: "... (1) that the debtor cannot maintain, based on current income and expenses, a minimal standard of living for herself and her 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 for student loans; and (3) that the debtor has made…

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir.1995)).

Higher Educ, Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 307 (3d Cir.1995)).

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3rd Cir.1995)).

Indeed, the confusion 26 appears to stem from Nascimento’s reliance on Pennsylvania Higher 27 Education Assistance Agency v. Faish (In re Faish), 72 F.3d 298 28 (3d Cir. 1995), which, in turn, made a passing reference to 14 1 Matthews v. Pineo, 19 F.3d 121, 124 (3d Cir. 1994), cert. denied, 2 513 U.S. 820 (1994), for the proposition that a debtor’s “current 3 income and . . . expenses should [not] be regarded as 4 unalterable.

Indeed, the confusion 26 appears to stem from Nascimento’s reliance on Pennsylvania Higher 27 Education Assistance Agency v. Faish (In re Faish), 72 F.3d 298 28 (3d Cir. 1995), which, in turn, made a passing reference to 14 1 Matthews v. Pineo, 19 F.3d 121, 124 (3d Cir. 1994), cert. denied, 2 513 U.S. 820 (1994), for the proposition that a debtor’s “current 3 income and . . . expenses should [not] be regarded as 4 unalterable.

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 307 (3d Cir.1995); Educ.

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir.1995). .See e.g., Krieger v. Educ.

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir.1996)).

Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir.1995), cert. denied, 518 U.S. 1009 , 116 S.Ct. 2532 , 135 L.Ed.2d 1055 (1996); and In re Roberson, 999 F.2d 1132, 1135 (7th Cir.1993).

Assistance Agency v. Faish, 72 F.3d 298, 306 (3d Cir.1995), cert. denied, 518 U.S. 1009 , 116 S.Ct. 2532 , 135 L.Ed.2d 1055 (1996).