FILED
OCT 09 2015
1 NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. WW-14-1551-FJuKi
)
6 NICOLE NG-A-QUI, ) Bk. No. 13-18196-MLB
)
7 Debtor. ) Adv. No. 13-01591-MLB
______________________________)
8 )
NICOLE NG-A-QUI, )
9 )
Appellant, )
10 )
v. ) MEMORANDUM*
11 )
COLLEGE ASSIST, )
12 )
Appellee. )
13 ______________________________)
14 Argued and Submitted on September 25, 2015
at Seattle, Washington
15
Filed – October 9, 2015
16
Appeal from the United States Bankruptcy Court
17 for the Western District of Washington
18 Honorable Marc L. Barreca, Bankruptcy Judge, Presiding
19
Appearances: Appellant Nicole Ng-A-Qui argued pro se.
20
21 Before: FARIS, JURY and KIRSCHER, Bankruptcy Judges.
22
23
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8024-1.
1 INTRODUCTION
2 Appellant Nicole Ng-A-Qui (“Appellant” or “Ms. Ng-A-Qui”)
3 appeals from the bankruptcy court’s judgment under 11 U.S.C.
4 § 523(a)(8) (2010)1 that declined to discharge her debt to
5 Appellee College Assist (“Appellee” or “College Assist”).
6 Essentially, Ms. Ng-A-Qui argues that the bankruptcy court erred
7 when it determined that she would not suffer “undue hardship” if
8 the court did not discharge her student loans. Although we
9 disagree with the bankruptcy court’s analysis in one respect, we
10 agree that Ms. Ng-A-Qui did not establish “undue hardship.”
11 Accordingly, we AFFIRM.
12 FACTUAL AND PROCEDURAL BACKGROUND
13 In September 2013, Ms. Ng-A-Qui filed a petition for
14 chapter 7 bankruptcy. Shortly thereafter, she initiated an
15 adversary proceeding seeking the discharge of her student loans
16 under § 523(a)(8). The bankruptcy court held a one-day trial on
17 June 30, 2014, in which Ms. Ng-A-Qui was the only witness.
18 On September 19, 2014, the bankruptcy court issued its oral
19 ruling. The bankruptcy court made the following eight findings
20 of fact:
21 (1) Ms. Ng-A-Qui is 40 years old, unmarried, and has three
22 children, ages 17, 3, and 1. Neither she nor any of the children
23 are disabled.
24 (2) After receiving her Bachelor of Science degree in
25
26 1
Unless specified otherwise, all chapter and section
27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
all “Rule” references are to the Federal Rules of Bankruptcy
28 Procedure, Rules 1001-9037.
2
1 Natural Resource Management in 1996, Ms. Ng-A-Qui took out two
2 $5,000 student loans to continue her higher education. In 1998,
3 she discontinued her studies. In 2004, she executed a promissory
4 note for a consolidation loan. The promissory note has a current
5 outstanding balance of $16,000 with interest accruing at
6 4.25 percent. College Assist is the holder of the note, and
7 since 2004, Ms. Ng-A-Qui has paid $1,240 on the loan debt.
8 (3) Ms. Ng-A-Qui is aware that she can enter into an
9 Income-Based Repayment plan, which College Assist believes would
10 be feasible. However, she has chosen not to apply, because she
11 currently has no income and, based on her employment history,
12 believes that she cannot secure stable employment.
13 (4) Ms. Ng-A-Qui pursued a number of temporary jobs before
14 settling in Washington State in 2000. She worked in a daycare
15 facility from 2000 to 2001 for $12 per hour. From 2001 to 2006,
16 she worked as a substitute teacher for $100 per day or $45 to $50
17 per half-day. During that same period, she worked as a park
18 ranger for $14 per hour and as a landscape technician for $12 per
19 hour. Between 2004 and 2008, Ms. Ng-A-Qui ran her own business,
20 which did not generate more than $5,000 in any given year. From
21 2007 to 2008, she worked for Turning Leaf Tree Service and
22 Seattle Tree Preservation for $20 per hour, but left her job
23 because of an injury. In 2008, she worked in a temporary
24 position for the City of Seattle, earning $25 per hour, but lost
25 that job due to lack of funding. From 2009 to 2010, she worked
26 for the City of Bellevue for $22 per hour. She was eight months
27 pregnant when she was laid off. From 2010 to 2012, Ms. Ng-A-Qui
28 was unemployed. She began working at ArborMetrics in 2012, but
3
1 voluntarily left that job because it was too strenuous and she
2 was pregnant with another child. She has not worked from 2012 to
3 the present and has been staying at home to care for her
4 children.
5 (5) Ms. Ng-A-Qui recently began applying for jobs again and
6 exploring other income-producing activities, such as teaching
7 music. However, she does not expect to obtain a job in her
8 field, as she believes that her degree is outdated. She is
9 looking for a job that pays at least $1,300 per month to cover
10 the cost of daycare for her children.
11 (6) Ms. Ng-A-Qui has no employment income, but receives
12 child support of $260 per month from the father of her eldest
13 child and Women Infants and Children (“WIC”) Supplemental
14 Nutrition Program benefits of $50 to $100 per month. Mr. Labrum,
15 the father of her two younger children, provides her with $1,500
16 per month for food and rent. The cost of rent is $1,300 per
17 month, including $150 a month for a horse that she keeps on the
18 property that she rents. Ms. Ng-A-Qui has decided not to pursue
19 child support from Mr. Labrum, because she believes that he is
20 paying more than what she could get in child support, and she
21 does not want to create animosity. She has not filed for food
22 stamps, because it would interfere with her arrangement with
23 Mr. Labrum. She is ineligible for unemployment benefits.
24 Considering the payments from her ex-partners and WIC,
25 Ms. Ng-A-Qui’s estimated monthly income is between $1,910 and
26 $1,960.
27 (7) Ms. Ng-A-Qui’s current expenses differ from those listed
28 in Schedule J in minor regards. First, her current monthly
4
1 expenses are approximately $2,655. Second, in addition to rent
2 and food expenses paid by Mr. Labrum, Ms. Ng-A-Qui pays $55 per
3 month for internet and phone service, $190 per month for her pet
4 horse, $150 per month for insurance for two cars, $80 per year
5 for two car registrations, $25 per month for school activities
6 for her children, and $200 every three to four months for Amway
7 purchases. She has cancelled her YMCA membership of $30 per
8 month, and a $600 expense for her child’s band camp was paid by
9 her mother. As a result, Ms. Ng-A-Qui has a monthly budget
10 deficit of $695 to $745. She does not expect a substantial
11 increase in expenses in the future and expects her expenses to
12 decrease as her children leave the household.
13 (8) Ms. Ng-A-Qui lives a modest lifestyle and has attempted
14 to mitigate her expenses. For example, she tried to sell the
15 horse, but it was unmarketable; she has eliminated expenses
16 related to horse tack and shows; she moved the horse to a pasture
17 where she lives; she cancelled her YMCA membership; she does not
18 own a cell phone; she rarely dines out; and she will likely
19 eliminate her Amway expenses.
20 The bankruptcy court thoroughly discussed the application of
21 the legal standard to Ms. Ng-A-Qui’s situation. The bankruptcy
22 court stated that, under § 523(a)(8), student loan debt is
23 excepted from discharge unless exception from discharge will
24 impose undue hardship on the debtor and her dependents. There is
25 no definition of “undue hardship” in the Bankruptcy Code, but the
26 Ninth Circuit follows the three-part test in Brunner v. New York
27 State Higher Education Service, 831 F.2d 395, 396 (2d Cir. 1987),
28 which was adopted by Pena v. United Student Aid Funds, Inc.
5
1 (In re Pena), 155 F.3d 1108, 1112 (9th Cir. 1998). To obtain a
2 discharge of student debt, the debtor bears the burden of proving
3 all three prongs of the Brunner test: (1) the debtor cannot
4 maintain, based on current income and expenses, a minimal
5 standard of living for the debtor and the debtor’s dependents if
6 forced to repay the loans; (2) additional circumstances exist
7 indicating that this state of affairs is likely to persist for a
8 significant portion of the repayment period of the loans; and
9 (3) the debtor has made good faith efforts to repay the loans.
10 As to the first prong, the bankruptcy court stated that the
11 debtor must show more than just tight finances. The first prong
12 will only be satisfied where it would be “unconscionable” to
13 require the debtor to increase his income or decrease his
14 expenses. Ms. Ng-A-Qui has a monthly deficit of $695 to $745.
15 She and her children live a modest lifestyle, and she has taken
16 reasonable steps to decrease her expenses, but she generates no
17 employment income. Her employment history demonstrates that she
18 is capable of earning $25 per hour, but, assuming a continuation
19 of other forms of income, even a full-time job at $14 per hour
20 would cover childcare, cure her current budget deficit, and allow
21 a modest repayment. Although Ms. Ng-A-Qui asserts that her
22 degree is outdated, there is no evidence that she is completely
23 unemployable in all fields. Regardless whether she is able to
24 obtain a job in her desired field, she is capable of obtaining a
25 job in general and generating some income. Therefore, the
26 bankruptcy court held that it is reasonable to require
27 Ms. Ng-A-Qui to increase her income of $0, and the first prong
28 was not satisfied.
6
1 As to the second prong, the bankruptcy court stated that the
2 determinative question is whether the debtor’s inability to pay
3 will persist throughout a substantial portion of the loan’s
4 repayment period. Educ. Credit Mgmt. Corp. v. Nys (In re Nys),
5 446 F.3d 938, 946 (9th Cir. 2006). The debtor must show that the
6 additional circumstances are insurmountable. Id. Such
7 additional circumstances may include serious mental or physical
8 disability that prevents employment or advancement; lack of or
9 severely limited education, or quality of education; limited
10 number of years remaining in the debtor’s work life to allow
11 repayment; potential increase of expenses that outweigh any
12 potential appreciation in value of the debtor’s assets or
13 increases in the debtor’s income.
14 The bankruptcy court determined that Ms. Ng-A-Qui is a
15 healthy, well-educated, and well-spoken individual. She has held
16 multiple jobs in the past that ranged in salary from $12 to $25
17 per hour. Although she asserted that her degree is outdated, she
18 provided no evidence that she has been or will be denied
19 employment based on the age of her degree. Further, her work
20 history indicates that she may be employable in other fields,
21 such as child care and education. She has made only a minimal
22 effort to seek employment in the last several years, but there is
23 nothing to indicate that she could not obtain employment in the
24 future. She has a present ability to work and will have a
25 greater ability to work with reduced expenses as her children get
26 older. For these reasons, the bankruptcy court held that the
27 second prong was not satisfied.
28 As to the third prong, the bankruptcy court stated that the
7
1 debtor is required to show that she has made a good-faith effort
2 to repay the debt. Good faith is measured by the debtor’s effort
3 to obtain employment, maximize income, and minimize expenses.
4 Pa. Higher Educ. Assistance Agency v. Birrane (In re Birrane),
5 287 B.R. 490 (9th Cir. BAP 2002). The fact that the debtor has
6 made no payments or has made some payments on the loan is not, in
7 and of itself, dispositive. However, a debtor’s effort or lack
8 thereof to negotiate a repayment plan is an important indicator
9 of good faith. Here, Ms. Ng-A-Qui failed to enter into an
10 income-based-repayment plan, and such failure is indicative, but
11 not dispositive, on the issue of bad faith. She made payments
12 totaling $1,240 since 2004, which is modest, but indicates a
13 good-faith effort, despite a lack of substantial income. With
14 the exception of the past two years, she has made substantial
15 efforts to obtain employment and maximize her income through a
16 series of jobs. Although she has not maintained a job for an
17 extended period of time, such failure is due generally to budget
18 cuts, the temporary nature of those positions, or Ms. Ng-A-Qui’s
19 life events, not through bad faith. Her efforts to minimize
20 expenses related to her horse and extracurricular activities are
21 also indicative of good faith. The bankruptcy court held that,
22 after balancing the facts, the weight of the evidence supported a
23 conclusion that Ms. Ng-A-Qui made good faith efforts to repay her
24 loans, and the third prong of the Brunner test is satisfied.
25 Accordingly, the bankruptcy court held that, because
26 Ms. Ng-A-Qui failed to meet the first and second prongs of the
27 Brunner test, her student loans are not dischargeable under
28 § 523(a)(8). The bankruptcy court entered judgment against
8
1 Ms. Ng-A-Qui on October 8, 2014. Ms. Ng-A-Qui filed a motion for
2 reconsideration with the bankruptcy court, but that motion was
3 denied on October 28, 2014. Ms. Ng-A-Qui timely filed her notice
4 of appeal to this Panel on November 12, 2014.
5 JURISDICTION
6 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
7 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C.
8 § 158.
9 ISSUE
10 Whether the bankruptcy court erred in holding that the
11 failure to discharge Appellant’s student loan debt will not cause
12 her or her dependents undue hardship under § 523(a)(8).
13 STANDARDS OF REVIEW
14 We review “the bankruptcy court’s interpretation of the
15 Bankruptcy Code de novo and its factual findings for clear
16 error[.]” Hedlund v. Educ. Res. Inst. Inc., 718 F.3d 848, 854
17 (9th Cir. 2013) (quoting Miller v. Cardinale (In re DeVille),
18 361 F.3d 539, 547 (9th Cir. 2004)).
19 DISCUSSION
20 A. Student loan debt can only be discharged under § 523(a)(8)
upon a showing of “undue hardship.”
21
22 The bankruptcy court accurately stated the applicable
23 standard for determining whether a student loan debt is
24 dischargeable. Section 523(a)(8) provides:
25 (a) A discharge under section 727 . . . of
this title does not discharge an individual
26 debtor from any debt–-
27 . . . .
28 (8) unless excepting such debt from
9
1 discharge under this paragraph would
impose an undue hardship on the debtor
2 and the debtor’s dependents, for-–
3 (A)(i) an educational benefit
overpayment or loan made, insured,
4 or guaranteed by a governmental
unit, or made under any program
5 funded in whole or in part by a
governmental unit or nonprofit
6 institution; or
7 (ii) an obligation to repay funds
received as an educational
8 benefit, scholarship, or stipend;
or
9
(B) any other educational loan
10 that is a qualified education
loan, as defined in section
11 221(d)(1) of the Internal Revenue
Code of 1986, incurred by a debtor
12 who is an individual[.]
13 § 523(a)(8).
14 The Bankruptcy Code does not provide any definition of
15 “undue hardship.” The Ninth Circuit has adopted the three-part
16 test set forth by the Second Circuit in Brunner, 831 F.2d at 396.
17 See Pena, 155 F.3d at 1111-12 (“we join the Second, Third and
18 Seventh Circuits and adopt the Brunner test to determine whether,
19 pursuant to 11 U.S.C. § 523(a)(8)(B), a debtor in bankruptcy may
20 discharge a student loan”).2 To demonstrate “undue hardship” and
21
2
The Panel recognizes that there is some dissatisfaction
22
with the Brunner test as a measure of undue hardship. In Roth v.
23 Educ. Credit Mgmt. Agency (In re Roth), 490 B.R. 908 (9th Cir.
BAP 2013), Judge Pappas authored a concurring opinion in which he
24 urged the Ninth Circuit to abandon the Brunner test as “truly a
relic of times long gone.” 490 B.R. at 920 (Pappas, J.,
25 concurring). In his well-reasoned concurrence that traced the
26 development of § 523(a)(8), the corresponding case law, and
students’ borrowing practices, Judge Pappas argued that the
27 current test is too rigid and does not allow the bankruptcy court
sufficient flexibility to consider all relevant factors. Id. at
28 (continued...)
10
1 obtain a discharge of a student loan, the debtor must establish
2 three elements: (1) “that she cannot maintain, based on current
3 income and expenses, a ‘minimal’ standard of living for herself
4 and her dependents if forced to repay the loans;” (2) “that
5 additional circumstances exist indicating that this state of
6 affairs is likely to persist for a significant portion of the
7 repayment period of the student loans;” and (3) “that the debtor
8 has made good faith efforts to repay the loans.” Id. at 1111
9 (quoting Brunner, 831 F.2d at 396).
10 “The three Brunner prongs are not elements a court throws
11 into a vial, and then mixes and spins to arrive at an amalgam
12 called ‘undue hardship.’ Rather, they are stand-alone
13 requirements.” Roth, 490 B.R. at 916. The burden is on the
14 debtor to prove each prong by a preponderance of the evidence.
15 Nys v. Educ. Credit Mgmt. Corp. (In re Nys), 308 B.R. 436, 441
16 (9th Cir. BAP 2004), aff’d on other grounds, 446 F.3d 938 (9th
17 Cir. 2006). “If the debtor fails to satisfy any one of these
18 requirements, ‘the bankruptcy court’s inquiry must end there,
19 with a finding of no dischargeability.’” Rifino v. United States
20 (In re Rifino), 245 F.3d 1083, 1088 (9th Cir. 2001) (quoting Pa.
21 Higher Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d
22
2
23 (...continued)
922. He concluded that the Ninth Circuit should “craft an undue
24 hardship standard that allows bankruptcy courts to consider all
the relevant facts and circumstances on a case-by-case basis to
25 decide, simply, can the debtor currently, or in the near-future,
26 afford to repay the student loan debt while maintaining an
appropriate standard of living.” Id. at 923. Nevertheless, as
27 Judge Pappas acknowledged, the Ninth Circuit has adopted the
Brunner test in whole, and we are bound to follow its precedent
28 unless and until the Ninth Circuit directs otherwise.
11
1 298, 306 (3d Cir. 1995)).
2 B. The bankruptcy court erred in considering Appellant’s
ability to increase her income under the first prong of the
3 Brunner test.
4 Ms. Ng-A-Qui’s first point of error takes issue with the
5 bankruptcy court’s holding that she can take steps to increase
6 her income, thereby maintaining a minimal standard of living.
7 She argues that her budget deficit of up to $745 per month
8 evidences that her “income is insufficient to support the basic
9 household expenses.” Opening Br. at 3.
10 Under the first prong of the Brunner test, the debtor must
11 prove, based on her current income and expenses, that she cannot
12 maintain a minimal standard of living if forced to repay her
13 loans. See Birrane, 287 B.R. at 494-95. The debtor must show
14 more than simply tight finances. United Student Aid Funds v.
15 Nascimento (In re Nascimento), 241 B.R. 440, 445 (9th Cir. BAP
16 1999). “In defining undue hardship, courts require more than
17 temporary financial adversity but typically stop short of utter
18 hopelessness.” Id.
19 The bankruptcy court, Ms. Ng-A-Qui, and College Assist all
20 directly or indirectly cite the BAP’s decision in Nascimento for
21 the proposition that, under the first prong, “[t]he proper
22 inquiry is whether it would be ‘unconscionable’ to require the
23 debtor to take steps to earn more income or reduce her expenses.”
24 See Opening Br. at 3; Answering Br. at 6. Indeed, citing
25 Birrane (which quoted the operative language from Nascimento) and
26 Weldon v. Sallie Mae, Inc. (In re Weldon), No. Co8-5665-RBL, 2009
27 WL 1034928 (W.D. Wash. Apr. 16, 2009), the bankruptcy court also
28 stated that the first prong will only be satisfied when it would
12
1 be “unconscionable” to require the debtor to increase her income
2 or decrease her expenses. The bankruptcy court concluded that
3 although Ms. Ng-A-Qui has a budget deficit of $695 to $745 per
4 month, she is capable of obtaining some type of employment and
5 generating some income. Therefore, it held that Ms. Ng-A-Qui
6 failed to satisfy the first prong, because it was reasonable to
7 require her to increase her income of $0.
8 However, the Ninth Circuit has stated that it has never
9 required a showing of maximization of income to satisfy the first
10 prong. In rejecting such an interpretation of Nascimento, the
11 Ninth Circuit stated:
12 Even if we were to reach the argument [that
the bankruptcy court erred because Mason
13 failed to establish that he maximized his
income], however, ECMC’s contention that
14 Mason must establish that he maximized his
income in order to meet the first prong of
15 Brunner does not find support in the case
law. Although ECMC claims that United
16 Student Aid Funds, Inc. v. Nascimento (In re
Nascimento), 241 B.R. 440 (B.A.P. 9th Cir.
17 1999), requires that Mason prove that he has
maximized his income, Nascimento appears to
18 impose no such requirement. See In re
Nascimento, 241 B.R. at 444-45. In any
19 event, even if Nascimento could be read to
require a debtor to prove that he maximized
20 his income to meet the first prong of the
Brunner test, we have not specifically
21 imposed such a requirement. See In re
Rifino, 245 F.3d at 1088 (requiring only that
22 debtor prove she could not maintain a minimal
standard of living based on her current
23 income and expenses); In re Pena, 155 F.3d at
1112-13 (determining whether first prong of
24 Brunner test was met by subtracting debtor’s
average monthly expenses from their net
25 monthly income). Accordingly, ECMC’s
contention fails.
26
27 Educ. Credit Mgmt. Corp. v. Mason (In re Mason), 464 F.3d 878,
28 882 n.3 (9th Cir. 2006) (emphases added).
13
1 Based on Mason, the bankruptcy court erred in requiring
2 Ms. Ng-A-Qui to prove that, under the first prong, she could not
3 increase her income. Rather, the Brunner test, as interpreted by
4 the Ninth Circuit, requires only that a debtor cannot maintain a
5 minimal standard of living based on her current income and
6 expenses. See Rifino, 245 F.3d at 1088. The first prong does
7 not require that she must maximize her income. As such, based on
8 the bankruptcy court’s findings that Ms. Ng-A-Qui’s current
9 expenses exceed her income by approximately $700 per month,
10 Ms. Ng-A-Qui satisfies the first prong of the Brunner test.
11 Some courts within this circuit have relied on Nascimento or
12 Birrane for the proposition that the first prong will only be
13 satisfied when it would be “unconscionable” to require the debtor
14 to increase her income or decrease her expenses. See, e.g.,
15 Educ. Credit Mgmt. Corp. v. Rhodes, 464 B.R. 918, 923 (W.D. Wash.
16 2012) (holding that the bankruptcy court erred in holding that
17 the debtor satisfied the first prong, inasmuch as it had reached
18 the “unavoidable conclusion that Mr. Rhodes has elected not to
19 maximize his income”); Weldon, 2009 WL 1034928, at *3 (citing
20 Birrane and Nascimento in holding that the bankruptcy court did
21 not err in holding that the debtor could seek employment to
22 increase her income); Educ. Credit Mgmt. Corp. v. DeGroot,
23 339 B.R. 201, 207 (D. Or. 2006) (a debtor “must show that ‘it
24 would be “unconscionable” to require [her] to take steps to earn
25 more income or reduce her expenses.’”). 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. Instead, the proper inquiry is whether it would be
5 ‘unconscionable’ to require [the debtor] to take any available
6 steps to earn more income or to reduce her expenses.” However,
7 Matthews discussed unconscionability in the context of discharge
8 under 42 U.S.C. § 254o(d)(3)(A), not § 523(a)(8) or the Brunner
9 test.
10 We are bound to follow the Ninth Circuit’s holding that the
11 first prong does not require a debtor to maximize her income.
12 Thus, we hold that Mason forecloses an interpretation that
13 Birrane or Nascimento requires a showing of income maximization
14 under the first prong of the Brunner test.
15 This is not to say, however, that a debtor’s potential
16 income is irrelevant to the determination of undue hardship.
17 Rather, the Ninth Circuit has considered the debtor’s ability to
18 increase her income both as evidence of additional circumstances
19 under the second prong, see Nys, 446 F.3d at 947 (under the
20 second prong, a court may consider a debtor’s “[m]aximized income
21 potential”), as well as evidence of a lack of good faith under
22 the third prong, see Hedlund, 718 F.3d at 852 (“Good faith is
23 measured by the debtor’s efforts to obtain employment, maximize
24 income, and minimize expenses.” (quoting Birrane, 287 B.R. at
25 499)). In other words, the bankruptcy court erred, not by
26 considering the debtor’s potential income, but rather by
27
28
15
1 considering it under the incorrect prong of the three-part test.3
2 C. The bankruptcy court did not err in holding that Appellant’s
financial hardships are unlikely to persist.
3
4 For her second point of error, Ms. Ng-A-Qui contends that,
5 because she has been chronically unemployed and believes her
6 degree is outdated, she is unlikely to obtain employment to
7 increase her income and improve her circumstances.4 She argues
8 that her difficult financial situation will persist for the life
9 of the loan repayment period.5
10 Under the second prong of the Brunner test, Ms. Ng-A-Qui
11 must establish “that additional circumstances exist indicating
12 that this state of affairs is likely to persist for a significant
13 portion of the repayment period of the student loans[.]”
14 Brunner, 831 F.2d at 396. This requirement is intended to effect
15 “the clear congressional intent exhibited in section 523(a)(8) to
16
17 3
Although Ms. Ng-A-Qui argues at length in her opening
18 brief and reply brief that she has adequately minimized her
expenses–-including costs relating to her horse, childcare, and
19 recreation–-the issue of minimization of expenses is not relevant
to this appeal. The bankruptcy court decided this factor in her
20 favor, determining that she has taken reasonable steps to
decrease expenses. The bankruptcy court did not require that she
21
reduce expenses any further.
22 4
The arguments submitted under the first prong related to
23 Ms. Ng-A-Qui’s employability are more appropriately considered
under the second prong, as discussed above. As such, we consider
24 Ms. Ng-A-Qui’s and College Assist’s arguments and the bankruptcy
court’s conclusions as to maximization of income under the second
25 prong.
26 5
The bankruptcy court inquired as to the length of the
27 repayment period. Counsel for College Assist represented that
Ms. Ng-A-Qui would reenter the standard repayment plan, which is
28 10 years.
16
1 make the discharge of student loans more difficult than other
2 nonexcepted debt.” Id. “Requiring . . . additional exceptional
3 circumstances, strongly suggestive of continuing inability to
4 repay over an extended period of time, more reliably guarantees
5 that the hardship presented is ‘undue.’” Id.
6 Regarding the “additional circumstances,” the Ninth Circuit
7 has recognized
8 that courts have found it difficult to
predict future income. Consequently, courts
9 have required debtors to present “additional
circumstances” to prove that their present
10 financial situation will persist well into
the future, preventing them from making
11 payments throughout a substantial portion of
the loans’ repayment period. . . . These
12 “additional circumstances” are meant to be
objective factors that courts can consider
13 when trying to predict the debtor’s future
income; the debtor does not have a separate
14 burden to prove “additional circumstances,”
beyond the inability to pay presently or in
15 the future, which would justify the complete
or partial discharge of her student loans.
16
17 Nys, 446 F.3d at 945 (citation omitted). The court does not
18 “presume that an individual’s present inability to make loan
19 payments will continue indefinitely.” Id. at 946. Rather, the
20 debtor must provide the court with “circumstances, beyond the
21 mere current inability to pay, that show that the inability to
22 pay is likely to persist for a significant portion of the
23 repayment period. The circumstances need be ‘exceptional’ only
24 in the sense that they demonstrate insurmountable barriers to the
25 debtors’ financial recovery and ability to pay.” Id. (citation
26 omitted). The “additional circumstances” that a court may
27 consider include, but are not limited to:
28 [(1)] Serious mental or physical disability
17
1 of the debtor or the debtor’s dependents
which prevents employment or advancement;
2 [(2)] The debtor’s obligations to care for
dependents; [(3)] Lack of, or severely
3 limited education; [(4)] Poor quality of
education; [(5)] Lack of usable or marketable
4 job skills; [(6)] Underemployment; [(7)]
Maximized income potential in the chosen
5 educational field, and no other more
lucrative job skills; [(8)] Limited number of
6 years remaining in [the debtor’s] work life
to allow payment of the loan; [(9)] Age or
7 other factors that prevent retraining or
relocation as a means for payment of the
8 loan; [(10)] Lack of assets, whether or not
exempt, which could be used to pay the loan;
9 [(11)] Potentially increasing expenses that
outweigh any potential appreciation in the
10 value of the debtor’s assets and/or likely
increases in the debtor’s income; [(12)] Lack
11 of better financial options elsewhere.
12 Id. at 947 (citation omitted).6
13 Ms. Ng-A-Qui argues that the bankruptcy court’s ruling on
14 the second prong was erroneous for several reasons. Although
15 Ms. Ng-A-Qui has thoroughly articulated her arguments, we must
16 disagree.
17 1. Employment history
18 Ms. Ng-A-Qui argues that “the court failed to take note that
19 she has never found any substantial employment in the field of
20 her study,” and “[t]here is no prospect of a drastic increase in
21
22
23
6
Ms. Ng-A-Qui contends that “[t]he court has clearly erred
24 in only taking into [account] other factors relating to the
additional circumstances. In Brunner the court has stated
25 accordingly that pursuant to the statute that there is an
26 inexhaustible list of factors to be considered.” Opening Br. at
4; see Reply at 4-5. It is unclear what error she is alleging,
27 or what “other factors” the court allegedly considered or did not
consider. She appears to draw largely from the factors laid out
28 in Nys, so we can detect no error as to this point.
18
1 income.” Opening Br. at 4.7 But the bankruptcy court did
2 consider her history of unemployment or underemployment. In its
3 findings of fact 3 and 4, the bankruptcy court accurately
4 recounted her periods of employment and unemployment based on her
5 testimony at trial. The court considered this history in
6 reaching its conclusions of law as to the first and second prongs
7 of the Brunner test; it held that, even though Ms. Ng-A-Qui has
8 had difficulty finding employment in her chosen field, she is
9 healthy, well-educated, and well-spoken, and she could find
10 employment in other fields. The court also noted that
11 Ms. Ng-A-Qui made only two attempts to obtain employment since
12 2012, but there is nothing indicating that she could not obtain
13 employment in the future. The bankruptcy court did not err in
14 considering her history of unemployment and underemployment.
15 2. Self-imposed limitations on likely future income
16 Ms. Ng-A-Qui challenges the bankruptcy court’s ruling that
17 she is likely able to obtain employment to increase her income
18 and improve her situation. Although we recognize the hardships
19 facing Ms. Ng-A-Qui, we find no error in this decision. It
20 appears that Ms. Ng-A-Qui has sought only jobs that (1) are
21 within her field of study, (2) are located “in the geographical
22 confines within which she chose to live,” and (3) pay at least
23
7
24 Ms. Ng-A-Qui also states that “[t]he court would take note
that if the Plaintiff did in fact acquire gainful employment the
25 child support would be reduced accordingly; thereby equalizing
26 any gains or increase in income. So, the Plaintiff would remain
substantially in the same predicament.” Opening Br. at 4.
27 However, she did not present any evidence of the reduction of
child support before the bankruptcy court, and, therefore, we
28 cannot consider this argument on appeal.
19
1 $25 per hour.
2 A “debtor cannot purposely choose to live a lifestyle that
3 prevents her from repaying her student loans. Thus, the debtor
4 cannot have a reasonable opportunity to improve her financial
5 situation, yet choose not to do so.” Nys, 446 F.3d at 946
6 (citing Rifino, 245 F.3d at 1089); see also Sederlund v. Educ.
7 Credit Mgmt. Corp. (In re Sederlund), 440 B.R. 168, 174-75 (8th
8 Cir. BAP 2010) (“A debtor is not entitled to an undue hardship
9 discharge of student loan debts when his current income is the
10 result of self-imposed limitations, rather than lack of job
11 skills.”).
12 Each of Ms. Ng-A-Qui’s job criteria are self-imposed
13 limitations that cut against her on the second prong of the
14 Brunner test.
15 As the bankruptcy court correctly noted, Ms. Ng-A-Qui is
16 educated, well-spoken, and probably able to find employment,
17 although perhaps not within her chosen field. Cf. Brunner v.
18 N.Y. State Higher Educ. Servs. Corp. (In re Brunner), 46 B.R.
19 752, 757 (S.D.N.Y. 1985), aff’d, 831 F.2d 395 (2d Cir. 1987)
20 (“Although she claimed to be unable to find any other type of
21 work, the evidence presented at the hearing is too thin to
22 support a finding that her chances of finding any work at all are
23 slim, and I do not read the bankruptcy judge’s decision as so
24 finding.”). The Panel recognizes Ms. Ng-A-Qui’s past challenges
25 in obtaining employment, but the fact that she has not recently
26 found employment in her chosen field does not absolve her from
27 seeking employment in other areas. See, e.g., Weil v. U.S. Bank,
28 N.A. (In re Weil), Nos. 99-00272, 99-6222, 2000 WL 33712215, at
20
1 *4 (Bankr. D. Idaho June 29, 2000) (“[T]he evidence
2 overwhelmingly suggests Fred cannot obtain employment in his
3 field of study. However, while the Court believes Fred may not
4 necessarily be able to obtain a job using his
5 sociology/psychology background, the Court is not convinced Fred
6 possesses disabilities that would prevent him from obtaining any
7 kind of entry level position.”); Price v. United States
8 (In re Price), Bk. No. 79-390(1), 1980 Bankr. LEXIS 5422, at *6
9 (Bankr. D. Haw. Mar. 21, 1980) (“Even if she is not employed in
10 the field in which she was trained, she can still seek other
11 employment and obtain sufficient compensation for a comfortable
12 living.”).
13 Her choice to seek jobs only in Stanwood, Washington, is
14 another impermissible unilateral limitation. Ms. Ng-A-Qui argues
15 that the bankruptcy court did not consider the fact that she
16 cannot relocate from Stanwood, because her sons’ father would not
17 allow it. However, she did not present any evidence in support
18 of this argument and did not raise this issue before the
19 bankruptcy court, so we do not consider it on appeal.
20 Finally, she has set her sights only on jobs paying at
21 least $25 per hour and has ruled out lower-paying positions. As
22 the bankruptcy court noted, even a lower-paying job would allow
23 Ms. Ng-A-Qui to increase her standard of living and allow some
24 form of repayment on the loans.
25 3. Potential for retraining
26 Ms. Ng-A-Qui argues that it would be “impossible” or
27 “unconscionable” for her to undergo training to enter another
28 profession. She testified at trial, however, that she is not
21
1 incapable of being retrained for a position other than
2 landscaping. On appeal, she contends that it is “impossible” to
3 “acquire retraining.” Opening Br. at 5. The proffered reasons
4 for rejecting retraining is that it is cost prohibitive and she
5 would not be able to immediately earn $25 per hour. Ms. Ng-A-Qui
6 did not offer any evidence at trial that retraining, including
7 on-the-job training, would be cost prohibitive. Indeed, she was
8 able to afford further training in her field in 2003 and 2004 to
9 receive an Arborist Certification through the International
10 Society of Arboriculture and a Restoration Ecology Certificate
11 from the University of Washington. Moreover, as discussed above,
12 she appears to be limiting herself to a $25-per-hour job, when
13 she may be able to obtain a lower-paying job. Thus, the record
14 supports the bankruptcy court’s holding that Ms. Ng-A-Qui could
15 increase her income through additional career training or a
16 change in profession.
17 4. Effect of Appellant’s age on likelihood of increased
income
18
Ms. Ng-A-Qui argues that her age is an insurmountable
19
barrier to increasing her income. She argues that the bankruptcy
20
court erred in failing to consider “what she would have to do in
21
order to make herself marketable again at 44 years of age for any
22
other field or job that could make her viable for employment.”
23
Opening Br. at 6. She also contends that her younger children
24
will be of college age when she is near retirement. Reply at 4.
25
We see no reason why Ms. Ng-A-Qui’s age presents an exceptional
26
barrier to employment, especially when she appears well-educated
27
and healthy. She is in her early forties, and she still has many
28
22
1 viable work years ahead of her. Ms. Ng-A-Qui’s age does not
2 present an insurmountable barrier to increasing her income in the
3 future.
4 5. Unchallenged findings on likely income increases and
expense reductions
5
6 Ms. Ng-A-Qui does not challenge other findings of the
7 bankruptcy court that support its decision. For example, the
8 bankruptcy court considered Ms. Ng-A-Qui’s stated intention to
9 return to the workforce once her children reach school age. Her
10 youngest child was born in late 2012 and will presumably reach
11 school age in two to three years. She will be able to reenter
12 the workforce then. See Garybush v. U.S. Dep’t of Educ.
13 (In re Garybush), 265 B.R. 587, 592 (Bankr. S.D. Ohio 2001)
14 (“While the Debtor cannot obtain paid employment at this time,
15 she is a healthy 35 year old woman who could return to work once
16 her children are all of school age. Her youngest child will
17 reach school age in less than four years. . . . Debtor’s current
18 inability to pay is unlikely to last into the future once her
19 children are of school age.”). Her financial situation will not
20 persist through the life of the debt, because, by her own
21 statements, she will return to work and increase her income.
22 Furthermore, Ms. Ng-A-Qui testified at trial that her
23 expenses will decrease as her children get older and her pets
24 pass away. She testified that her daughter recently graduated
25 from high school and may move out to live with her boyfriend.
26 Such changes will likely reduce Ms. Ng-A-Qui’s expenses and
27 improve her financial situation over the life of the loan
28 repayment period.
23
1 Therefore, we hold that the bankruptcy court did not err in
2 holding that Ms. Ng-A-Qui’s situation is unlikely to persist for
3 the entire life of the loan. “What separates a ‘garden-variety
4 debtor’ from a debtor who can show ‘undue hardship’ is the
5 realistic possibility that a ‘garden-variety debtor’ could
6 improve her financial situation in the future.” Nys, 446 F.3d at
7 944. Although we are sympathetic to Ms. Ng-A-Qui’s situation and
8 appreciate her candor at the oral argument, the record shows that
9 she is capable of working and her financial situation will likely
10 improve once she returns to the workforce. She thus has not
11 satisfied the second prong of the Brunner test and is unable to
12 demonstrate requisite undue hardship.
13 CONCLUSION
14 A reasonable person could disagree with Congress’s decision
15 to make it difficult to discharge student loan debt. A
16 reasonable person could also disagree with Brunner’s
17 interpretation of the Congressional standard. But we are bound
18 by the Congressional enactment of § 523(a)(8) and the Ninth
19 Circuit’s adoption of the Brunner test.
20 For the reasons set forth above, we hold that the bankruptcy
21 court erred in requiring Ms. Ng-A-Qui to maximize her income
22 under the first prong of the Brunner test, but did not err in
23 holding that her situation will improve under the second prong of
24 the test. Thus, because Ms. Ng-A-Qui did not establish all three
25 prongs of the Brunner test, we AFFIRM the bankruptcy court’s
26 nondischargeability judgment.
27
28
24