FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: CATHY COLEMAN,
Debtor.
No. 06-16477
EDUCATIONAL CREDIT MANAGEMENT
CORPORATION, D.C. No.
CV-05-05231-SC
Appellant,
OPINION
v.
CATHY COLEMAN,
Appellee.
Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
Argued and Submitted
May 14, 2008—San Francisco, California
Filed August 1, 2008
Before: Diarmuid F. O’Scannlain and
Michael Daly Hawkins, Circuit Judges, and
James V. Selna,* District Judge.
Opinion by Judge Hawkins
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
9839
9844 In the Matter of: COLEMAN
COUNSEL
Curtis P. Zaun (argued) and Miriam Hiser (briefed), Educa-
tional Credit Management Corporation, St. Paul, Minnesota,
for the appellant.
Lars T. Fuller (argued and briefed), The Fuller Law Firm, San
Jose, California, for the appellee.
OPINION
HAWKINS, Circuit Judge:
We consider whether “undue hardship” determinations—
whereby bankruptcy courts decide whether student loans
qualify for discharge—are ripe in a Chapter 13 case substan-
tially in advance of plan completion.
FACTUAL AND PROCEDURAL HISTORY
Cathy Coleman filed for bankruptcy under Chapter 13 in
2004, and the bankruptcy court confirmed a five-year repay-
ment plan. Coleman owes over $100,000 in student loans to
In the Matter of: COLEMAN 9845
Educational Credit. Since graduating from college, Coleman
has been irregularly employed as a substitute teacher and art
teacher, and was recently laid off in March of 2005. Just
under a year after the plan was confirmed, Coleman sought a
determination that it would constitute an undue hardship
under 11 U.S.C. § 523(a)(8) for her to repay her student loans,
and that her student loans should therefore not be excepted
from discharge. Educational Credit moved to dismiss for lack
of subject matter jurisdiction on ripeness grounds. The bank-
ruptcy court denied the motion, In re Coleman, 333 B.R. 841
(Bankr. N.D. Cal. 2005), and the district court affirmed the
decision of the bankruptcy court. This appeal followed.
STANDARD OF REVIEW
We review the district court’s decision on an appeal from
a bankruptcy court de novo. In re Daily, 47 F.3d 365, 367 (9th
Cir. 1995) (per curiam); In re Siragusa, 27 F.3d 406, 407 (9th
Cir. 1994). “We apply the same standard of review to the
bankruptcy court [decision] as does the district court: findings
of fact are reviewed under the clearly erroneous standard, and
conclusions of law, de novo.” In re Tucson Estates, Inc., 912
F.2d 1162, 1166 (9th Cir. 1990). The issue of ripeness is a
question of law. Chang v. United States, 327 F.3d 911, 921
(9th Cir. 2003).
STATUTORY BACKGROUND
[1] Debtors who seek Chapter 13 relief commit to a three-
to five-year period of repayment, after which their remaining
debts are discharged.1 Unlike Chapter 7 debtors, who are enti-
tled to a discharge of debt as soon as their estate is liquidated
and distributed,2 Chapter 13 debtors are not entitled to a dis-
1
With the exception, of course, of those debts that are excepted from
discharge under 11 U.S.C. § 523.
2
See 11 U.S.C. § 727. In Chapter 7, the debtor’s assets are liquidated
and distributed among creditors, and there is no repayment plan. Id. § 726.
9846 In the Matter of: COLEMAN
charge of debts unless and until they complete payments to
creditors under a three- to five-year plan.3 11 U.S.C.
§ 1328(a)(2).4 Student loans are excepted from discharge
unless the debtor can show “undue hardship.” Id.
§§ 523(a)(8), 1328(a)(2).5 Coleman is currently making pay-
3
Unless the difficult standard of 11 U.S.C. § 1328(b) is met, a discharge
may be granted if the debtor fails to complete plan payments only if:
(1) the debtor’s failure to complete such payments is due to
circumstances for which the debtor should not justly be held
accountable;
(2) the value, as of the effective date of the plan, of property
actually distributed under the plan on account of each allowed
unsecured claim is not less than the amount that would have been
paid on such claim if the estate of the debtor had been liquidated
under chapter 7 of this title on such date; and
(3) modification of the plan under section 1329 of this title
is not practicable.
11 U.S.C. § 1328(b).
4
Section 1328(a)(2) provides:
(a) . . . [a]s soon as practicable after completion by the debtor
of all payments under the plan, . . . the court shall grant the debtor
a discharge of all debts provided for by the plan . . . except any
debt—
....
(2) of the kind specified in section 507(a)(8)(C) or in
paragraph (1)(B), (1)(C), (2), (3), (4), (5), (8), or (9) of sec-
tion 523(a).
11 U.S.C. § 1328(a).
5
Section 523(a) provides in relevant part:
(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—
(1) for tax or a customs duty—
....
(8) unless excepting such debt from discharge under this
paragraph would impose an undue hardship on the debtor
and the debtor’s dependents, for [qualified educational
loans].
11 U.S.C. § 523(a).
In the Matter of: COLEMAN 9847
ments under her five-year Chapter 13 plan. She will not be
entitled to discharge any of her debts until she completes this
plan, and will not be entitled to discharge her student loans
unless she can show “undue hardship.”
[2] To show undue hardship, the debtor must show “(1) that
she 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 portion of the student
loans; and (3) that the debtor has made good faith efforts to
repay the loans.” In re Saxman, 325 F.3d 1168, 1172 (9th Cir.
2003).
The question before us is one of timing: may Coleman
obtain this undue hardship determination substantially in
advance of the time she completes payments under her Chap-
ter 13 plan?
[3] Federal Rule of Bankruptcy Procedure 4007(a) provides
that “A debtor or any creditor may file a complaint to obtain
a determination of the dischargeability of any debt.” Under
Federal Rule of Bankruptcy Procedure 4007(b), “[a] com-
plaint other than under § 523(c)6 may be filed at any time.”7
Coleman argues that this Rule shows that the undue hardship
determination is ripe at any time, while Educational Credit
argues that, because Coleman cannot obtain a discharge
unless and until she completes payments under the plan, the
undue hardship determination is not ripe until at or near the
time Coleman completes plan payments.
6
Section 523(c) provides that debtors shall be discharged from debt
incurred from fraud or willful and malicious injury absent notice and a
hearing, which must be filed within 60 days after the first meeting of cred-
itors pursuant to Federal Rule of Bankruptcy Procedure 4007(c).
7
These Bankruptcy Rules apply equally to debtors filing under Chapter
7 and debtors filing under Chapter 13.
9848 In the Matter of: COLEMAN
1. Constitutional Ripeness
[4] Ripeness has two components: constitutional ripeness
and prudential ripeness.8 Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). “The
constitutional ripeness of a declaratory judgment action
depends upon ‘whether the facts alleged, under all the circum-
stances, show that there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy
and reality to warrant the issuance of a declaratory judg-
ment.’ ” United States v. Braren, 338 F.3d 971, 975 (9th Cir.
2003) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S.
270, 273 (1941)); see also Hulteen v. AT&T Corp., 498 F.3d
1001, 1004 n.1 (9th Cir. 2007) (en banc) (finding jurisdiction
because “substantial controversy” requirement was met).
[5] The issues presented must be “definite and concrete, not
hypothetical or abstract.” Thomas, 220 F.3d at 1139 (internal
quotation marks omitted). Where a dispute hangs on “future
contingencies that may or may not occur,” Clinton v. Acequia,
Inc., 94 F.3d 568, 572 (9th Cir. 1996), it may be too “imper-
missibly speculative” to present a justiciable controversy.
Portland Police Ass’n v. City of Portland, 658 F.2d 1272,
1273 (9th Cir. 1981). “The constitutional component of ripe-
ness is a jurisdictional prerequisite.” United States v. Ante-
lope, 395 F.3d 1128, 1132 (9th Cir. 2005).
[6] A “substantial controversy” arose between Coleman
and Educational Credit when Coleman filed for bankruptcy
protection under Chapter 13: Coleman’s purpose in filing was
to seek the discharge of her student loans, and Educational
Credit seeks to prevent this. Further, the controversy here is
8
Educational Credit states that it is challenging only the court’s jurisdic-
tion and is not appealing the component of the bankruptcy court’s decision
that holds the court will not exercise its discretion to delay determination
of undue hardship until discharge is imminent; however, some of the
bankruptcy court’s analysis is relevant to our ripeness determination.
In the Matter of: COLEMAN 9849
certainly “definite and concrete, not hypothetical or abstract,”9
because it is a controversy between Coleman and Educational
Credit over a specific and defined debt.
[7] It is true that Coleman’s actual discharge of her student
loans will only occur, if at all, when she completes payments
under the plan. 11 U.S.C. § 1328(a)(2). If she does not com-
plete her plan payments, there will be no discharge.10
But plan completion is a single factual contingency—not a
“series of contingencies” rendering the decision “impermiss-
ibly speculative.” See Portland Police, 658 F.2d at 1273,
1274. In Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1211 (9th Cir. 2006) (per
curiam), a majority of this court concluded that a challenge to
the enforceability of a French court injunction was constitu-
tionally ripe even though enforcement of that injunction had
yet to be sought.11 If this factual contingency did not render
the dispute so “impermissibly speculative” that it failed to
meet the “case or controversy” requirement, it is difficult to
see how the dispute between Coleman and Educational Credit
would not also qualify as constitutionally ripe. Just as Cole-
man could fail to complete her plan payments, parties to the
Yahoo! dispute at the time ripeness was at issue could have
decided not to seek the enforcement of its injunction in the
United States.12 The dispute here is constitutionally ripe.
9
Thomas, 220 F.3d at 1139 (internal quotation marks omitted).
10
Unless, again, she can satisfy the difficult standard of § 1328(b). See
supra n.3.
11
In Yahoo!, eight judges agreed that the issue was constitutionally ripe
for adjudication, although three of the eight judges concluded that the
issue was not prudentially ripe. Three judges voted to dismiss for lack of
personal jurisdiction. 433 F.3d at 1201.
12
In Clinton, the court declined to decide whether an agreement to liqui-
date existed because several years remained before the party would be
required to perform. 94 F.3d at 572. There, however, the parties agreed
that the issue was not ripe because it appeared likely that the company
would liquidate regardless of the decision. Id. Here, by contrast, there is
not a substantial likelihood that Coleman will be able to pay all of her stu-
dent loans regardless of the outcome of the undue hardship decision.
9850 In the Matter of: COLEMAN
2. Prudential Ripeness Test
The Supreme Court has held that “[p]roblems of prematu-
rity and abstractness may well present ‘insuperable obstacles’
to the exercise of the Court’s jurisdiction, even though that
jurisdiction is technically present.” Socialist Labor Party v. Gil-
ligan,13 406 U.S. 583, 588 (1972) (citing Rescue Army v. Mun.
Court, 331 U.S. 549, 574 (1947)).
[8] The Supreme Court has developed a two-part test for
determining the prudential component of ripeness in the
administrative context: “the fitness of the issues for judicial
decision” and “the hardship to the parties of withholding court
consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967) (overruled on other grounds by Califano v. Sanders,
430 U.S. 99 (1977)).14 Originally, we generally applied this
two-part test in making prudential ripeness determinations
without strictly limiting the test to the administrative law con-
text. See, e.g., Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d
835, 850 (9th Cir.) (amended on denial of reh’g, 312 F.3d 416
(9th Cir. 2002)); Knight v. Kenai Penninsula Borough Sch.
Dist., 131 F.3d 807, 814 (9th Cir. 1997); In re Dominelli, 788
F.2d 584, 585 (9th Cir. 1986).
[9] However, in Principal Life Ins. Co. v. Robinson, 394
F.3d 665 (9th Cir. 2005), we held that Abbott does not apply
to private contract disputes, and suggested that the test may
only be appropriate in the administrative law context. The
court noted, because an administrative action “has conse-
quences for many members of the general public,” it is “pru-
dent for courts to limit their review of such actions to those
13
Socialist Labor Party dealt with the constitutionality of Ohio’s elec-
tion laws. 406 U.S. at 584.
14
The dispute at issue in Abbott was over a prescription drug labeling
statutory requirement, namely, whether the established name of the drug
must be used every time the propriety name is employed. 387 U.S. at 137-
39.
In the Matter of: COLEMAN 9851
involving the possibility of concrete injury greater than specu-
lative or remote financial contingencies.” Id. at 670-71. The
court also observed that the concerns expressed in Abbott over
“judicial entanglement,” “allocation of authority,” and the
risks of “wide-ranging and remote adverse consequences” in
administrative agency actions do not apply to private party
contract disputes. Id. at 671.
The court then declined to apply the Abbott test to a private
party contract dispute over a rent-adjustment provision, find-
ing the matter ripe even though the provision was contingent
upon future property value. Noting that “the fundamental role
of the courts is to resolve concrete and present disputes
between parties,” the court held that the proper test for ripe-
ness in private party contract disputes is “the traditional ripe-
ness standard, namely, whether ‘there is a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.’ ” Id. at 671 (quoting Maryland Cas.
Co., 312 U.S. at 273).15
Principal does not tell us whether the Abbott test would be
appropriate in this context—a private party dispute that is
governed not by contract but by the Bankruptcy Code. How-
ever, prior to Principal, disputes in the bankruptcy context
were subjected to the Abbott ripeness test. See, e.g., Domi-
nelli, 788 F.2d at 585-86 (dispute as to whether debtor’s estate
could be required to pay legal expenses of creditor committee
ripe under Abbott test even though counsel had not yet sought
fees); In re Gen. Carriers Corp., 258 B.R. 181, 186 (9th Cir.
B.A.P. 2001) (dispute over bankruptcy court’s jurisdiction to
enter abstention order ripe under Abbott test). Because Princi-
pal did not (and could not) overrule Dominelli’s application
15
Because this standard is the constitutional component of ripeness,
Principal’s holding essentially eliminated the prudential component from
ripeness determinations in private party contract disputes.
9852 In the Matter of: COLEMAN
of Abbott in the bankruptcy context, we must apply Abbott
here.16
3. Prudential Ripeness Here
A. Background
Turning to the specific inquiry at hand, we note that Courts
of Appeal are currently split as to whether student loan dis-
chargeability determinations are ripe substantially in advance
of plan completion. Most courts to address the issue do not
specify which ripeness standard they are employing. The
Ninth Circuit Bankruptcy Appellate Panel (“BAP”) has held
that the issue of student loan dischargeability is ripe before
the completion of plan payments. In re Taylor, 223 B.R. 747,
751-52 (9th Cir. BAP 1998) (overruled on other grounds by
16
We note, however, that there is considerable tension between the rea-
soning in Principal and Dominelli’s application of Abbott. The reasoning
Principal employed to reject the Abbott test in private party disputes
applies to many disputes in the bankruptcy context. Generally there will
not be a risk of “judicial entanglement in administrative agency actions”
nor “allocation of authority concerns.” Principal, 394 F.3d at 671. Of
course, where the bankruptcy court must interpret a Code provision, for
example, the decision may “ha[ve] consequences for many members of
the general public,” or even potentially “wide-ranging and remote adverse
consequences,” id., necessitating the searching prudential inquiry provided
by Abbott. Cases like this, however, which involve a unique case-specific
inquiry rather than an interpretive endeavor, are unlikely to have “wide-
ranging and remote adverse consequences.” Because they are necessarily
fact-intensive, the fitness prong of the Abbott test maps onto them poorly:
The traditional formulation of that rule is that a case is more likely to be
“fit” if it involves “pure legal questions that require little factual develop-
ment,” San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1132
(9th Cir. 1996), but, as we discuss, bankruptcy courts often must decide
questions that are almost exclusively factual and require a good deal of
factual development. Although the “fitness” prong of the Abbott test does
not preclude factual inquiries where further delay would not aid in the
decision, Principal suggests that the better route may be to recognize that
the concerns motivating Abbott are not present here and do not justify its
application in this context.
In the Matter of: COLEMAN 9853
Saxman, 325 F.3d at 1175).17 Without explicitly applying the
Abbott test or any particular ripeness standard, the BAP rea-
soned that the issue was ripe because Bankruptcy Rule
4007(b) expressly permits the filing of a § 523(a)(8) com-
plaint “at any time,” and no statute or policy conflicts with the
filing of such a complaint at any time. Taylor, 223 B.R. at
751-752.
The Fourth Circuit has also held that undue hardship deter-
minations may be ripe in advance of plan completion. In re
Ekenasi, 325 F.3d 541, 547 (4th Cir. 2003). The court
expressly “decline[d] to adopt a hard and fast rule which
would preclude bankruptcy courts from ever entertaining a
proceeding to discharge student loan obligations until at or
near the time the debtor has completed payments under a con-
17
Educational Credit argues that Taylor conflicts with In re Heincy, 858
F.2d 548, 550 (9th Cir. 1988). There, the debtor sought a dischargeability
determination for criminal restitution debt. However, whether that debt
was excepted from discharge depended on whether the debtor completed
plan payments, because the standards for dischargeability of criminal resti-
tution differed depending on whether the debtor completed the plan. 858
F.2d 548 at 550. The court reasoned, “Because the plan is still in progress,
the bankruptcy court could not have known which discharge provision
[§§1328(a) or (b)] would apply,” and it was highly unlikely the restitution
payments would be dischargeable in any event. Id. However, this reason-
ing does not apply in the student loan context. In the student loan context,
the standard for nondischargeability is the same whether it is excepted
under §§ 1328(a) or (b). See 11 U.S.C. §§ 523(a), 1382(a)(2). In other
words, in Heincy, the court had no legal framework to apply to the dis-
chargeability determination prior to plan completion. Not so with student
loan dischargeability determinations. Because Heincy’s ripeness conclu-
sion was determined by the bankruptcy court’s inability to decide the dis-
chargeability question at that point, and because the court found it highly
unlikely that criminal restitution would ever be dischargeable, the holding
has no bearing on the ripeness of undue hardship determinations prior to
plan completion. Heincy did not conclude that no case or controversy
existed, and we assume that the ripeness conclusion was a prudential one
—the court understandably declined to undertake an inquiry that both
lacked an applicable standard and would more than likely never take
effect.
9854 In the Matter of: COLEMAN
firmed Chapter 13 plan.” A bankruptcy court in the Southern
District of Ohio also took this approach. In re Strahm, 327
B.R. 319, 323-24 (Bankr. S.D. Ohio 2005).18
Two Courts of Appeal disagree with Taylor. The Eighth
Circuit, without applying any particular ripeness test,19 held
that, in undue hardship determinations, “the factual question
is whether there is undue hardship at the time of discharge,
not whether there is undue hardship at the time that a
§ 523(a)(8) proceeding is commenced.” In re Bender, 368
F.3d 846, 848 (8th Cir. 2004). The court reasoned that student
loan dischargeability proceedings “should take place rela-
tively close to [the date of discharge] so that the court can
make its determination in light of the debtor’s actual circum-
stances at the relevant time.” Id. Similarly, the Fifth Circuit
has held, in contrast to Taylor, that the undue hardship deter-
mination is not ripe until plan completion because dischargea-
bility is not available until plan completion.20 In the Matter of
Rubarts, 896 F.2d 107, 109 (5th Cir. 1990).21
18
Educational Credit faults these courts for failing to address the juris-
dictional question, but, again, the question is jurisdictional only if it speaks
to constitutional ripeness rather than prudential ripeness—if a matter is
constitutionally ripe, the court may decline to consider it for prudential
reasons, but it does not lack jurisdiction to consider the case. The courts
taking the opposite approach do not address the jurisdictional question
either.
19
The bankruptcy court below did employ the Abbott test. In re Bender,
297 B.R. 126, 132 (Bankr. D. Neb. 2003).
20
The Fifth Circuit court cited In re Heincy for the proposition that
“Under both the express wording of section 1328(a) and Bankr.R.
4007(d), an objection to dischargeability cannot be filed nor heard prior
to the occurrence of one of those two events.” Rubarts, 896 F.2d at 109.
However, this misunderstands Heincy’s holding, which was only that a
criminal restitution dischargeability determination should not be made
prior to plan completion, given the differing standards depending upon
whether payments were completed. The Taylor court distinguished Heincy
on the grounds that the debt at issue there was for criminal restitution, not
student loans, without clarifying that the dischargeability determination
could not be made prior to plan completion in the latter case. See Taylor,
223 B.R. at 751.
21
Several bankruptcy courts have also agreed with that approach. See,
e.g., In re Pair, 269 B.R. 719, 721 (Bankr. N.D. Ala. 2001); In re Soler,
250 B.R. 694, 697 (Bankr. D. Minn. 2000); In re Raisor, 180 B.R. 163,
166 (Bankr. E.D. Tex. 1995).
In the Matter of: COLEMAN 9855
[10] Applying Abbott, we agree with the Fourth Circuit and
with the Ninth Circuit BAP that an undue hardship determina-
tion can be ripe substantially in advance of plan completion.
B. Fitness
[11] The purpose of the “fitness” test under Abbott is to
delay consideration of the issue until the pertinent facts have
been well-developed in cases where further factual develop-
ment would aid the court’s consideration. See, e.g., Nat’l Park
Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 812
(2003) (further factual development would “significantly
advance our ability to deal with the legal issues presented” so
the matter determined not ripe for judicial review) (internal
quotation marks omitted); Lujan v. Nat’l Wildlife Federation,
497 U.S. 871, 891 (1990) (regulation ordinarily not ripe for
review “until the scope of the controversy has been reduced
to more manageable proportions, and its factual components
fleshed out, by concrete action applying the regulation to the
claimant’s situation in a fashion that harms or threatens to
harm him”); Earth Island Inst. v. Ruthenbeck, 490 F.3d 687,
695 (9th Cir. 2007) (issue not fit for review absent proper fac-
tual context to aid court’s determination); Natural Resources
Defense Council, Inc. v. EPA, 22 F.3d 1125, 1133 (D.C. Cir.
1994) (considering “whether consideration of the issue would
benefit from a more concrete setting” in determining whether
an issue is “fit” under the Abbott test).
[12] Although a case is more likely to be “fit” if it involves
“pure legal questions that require little factual development,”
San Diego County Gun Rights Commission, 98 F.3d at 1132,
fact-intensive inquiries that depend on further factual devel-
opment may nevertheless be ripe if, as here, that development
would do little to aid the court’s decision. In the bankruptcy
context, there are many situations in which the factual context
may never be ideally well-developed. Congress has given
bankruptcy courts the task of undertaking complex factual
inquiries that depend, by their very nature, on future events
9856 In the Matter of: COLEMAN
and contingencies. Whether a bankruptcy court decides to lift
an automatic stay depends upon its assessment of the debtor’s
ability to adequately protect against future decline in the col-
lateral’s value and ultimately successfully reorganize. 11
U.S.C. § 362(d), 363(e); United Sav. Ass’n of Tex. v. Timbers
of Inwood Forest Assocs., Ltd., 484 U.S. 365, 377 (1988). At
that moment the bankruptcy court essentially must predict
whether the debtor is doomed or has some reasonable chance
of rehabilitation. Whether a bankruptcy court decides to con-
firm a Chapter 13 plan depends upon the likelihood that the
debtor will be able to make all required payments under the
plan. 11 U.S.C. § 1325(a)(6). In all of these situations, delay
is unlikely to provide much, if any, additional benefit to the
bankruptcy court’s resolution of the issue.
[13] The same is true here: The undue hardship inquiry
itself contemplates factual contingencies many years into the
future. See Coleman, 333 B.R. at 847. Under the second
prong of the undue hardship test, the debtor must show that
“additional circumstances exist indicating that this state of
affairs is likely to persist for a significant portion of the repay-
ment period of the student loans.” Saxman, 325 F.3d at 1173.
Many student loan repayment periods are thirty years in
duration—a “significant portion” of this period is far longer
than the duration between the initiation and conclusion of the
Chapter 13 plan. A determination of lack of ripeness due to
the factual contingency of the debtor’s financial situation
makes little sense since the court must always speculate on
debtor’s financial situation years into the future.
[14] Educational Credit also argues that the determination
whether “the debtor has made good faith efforts to repay the
loans,” Saxman, 325 F.3d at 1173, cannot be made until at or
near plan completion. However, whether it is premature for
the court to make such a determination varies depending on
each debtor’s situation. See, e.g., Ekenasi, 325 F.3d at 547. If
the debtor has been trying in vain to make student loan pay-
ments for the past fifteen years, the facts may be sufficiently
In the Matter of: COLEMAN 9857
well developed for the court to conclude that the debtor made
good faith efforts to repay. If, on the other hand, the debtor
files for bankruptcy immediately upon graduating from col-
lege, it will likely be necessary to wait the duration of the plan
before a good faith determination is possible. Here Coleman
has been trying to repay her student loans since 1999, which
seems to us a sufficient amount of time for the bankruptcy
court to evaluate whether she has made a good faith attempt
at repayment.
[15] We disagree with the Eighth Circuit’s conclusion that
bankruptcy courts should not make an undue hardship deter-
mination until the time of discharge because “the factual
question is whether there is undue hardship at the time of dis-
charge, not whether there is undue hardship at the time that
a § 523(a)(8) proceeding is commenced.” Bender, 368 F.3d at
848. The bankruptcy court below correctly noted that there is
no clause in § 523(a)(8) specifying that the undue hardship
must exist exactly at the time of discharge. Coleman, 333
B.R. at 849. The Fourth Circuit’s approach permits a debtor
to choose the “snapshot date” for determining undue hardship
on the grounds that the “text of the pertinent statute does not
prohibit such an advance determination.” Ekenasi, 325 F.3d at
547.
This approach is consistent with the statute and makes
sense in light of Bankruptcy Rule 4007(b). While that rule
could not, of course, render a constitutionally unripe matter
ripe, it counsels in favor of a finding of prudential ripeness.
C. Hardship
[16] Hardship to the debtor from postponing a decision in
this situation supports a finding of ripeness. Abbott, 387 U.S.
at 149. Here, the hardship to Coleman is committing to a
Chapter 13 plan for three to five years without any guarantee
that her student loans will be discharged at the end of this
time period. Because debtors must commit all of their dispos-
9858 In the Matter of: COLEMAN
able income to payments under a Chapter 13 plan, 11 U.S.C.
§ 1325(b)(1)(2), five years repayment is a considerable bur-
den to bear without any guarantee that the debt will be ulti-
mately discharged. 11 U.S.C. § 1328(a)(2).
Theoretically, Coleman could convert her case to a Chapter
7 bankruptcy, assuming that she meets the requirements for
filing under that Chapter,22 and receive a discharge under 11
U.S.C. § 727(a). However, it appears the reason Coleman
filed under Chapter 13 rather than Chapter 7 was that she was
unable to afford an up-front payment for the undue hardship
litigation. In Chapter 7, debtors’ attorneys may not be paid
from the estate, so unless the attorney is paid up-front, she is
unlikely to be paid.23 In a Chapter 13, however, the attorney
is often paid as part of the plan.24
Because Coleman apparently cannot finance the undue
hardship litigation up-front, she would have to proceed with
the undue hardship litigation pro se, if at all.
A fundamental purpose driving the bankruptcy system is to
“relieve the honest debtor from the weight of oppressive
indebtedness, and permit him to start afresh free from the
obligations and responsibilities consequent upon business
22
See 11 U.S.C. § 727(b).
23
See, e.g., Lamie v. U. S. Trustee, 540 U.S. 526, 534-36 (2004).
24
Unlike Chapter 7 cases, attorneys’ fees in Chapter 13 cases are nor-
mally paid out of the plan as an administrative expense. Bankruptcy Code
11 U.S.C. § 503(b)(2) allows administrative expense status for compensa-
tion awarded under Code § 330(a). Bankruptcy Code § 330(a) allows com-
pensation for a professional person employed under § 327. Although
compensation under those provisions is limited to attorneys for the trustee,
not for the debtor, Lamie, 540 U.S. at 534-36, it is common for this dis-
tinction to be blurred in Chapter 13 cases because a Chapter 13 debtor
exercises some of the powers of a trustee. 11 U.S.C. § 1303. This results
in attorneys’ fees being paid as administrative expenses in Chapter 13
cases. Pursuant to 11 U.S.C. § 1326(b)(1), these fees are often paid early
in the case.
In the Matter of: COLEMAN 9859
misfortunes.” Local Loan v. Hunt, 292 U.S. 234, 244 (1934).
Debtors who are primarily burdened by student debt will not
emerge from bankruptcy with a “fresh start” if those student
loan debts are not dischargeable—and if they are forced to
pursue the undue hardship matter pro se, the likelihood of a
successful undue hardship hearing is probably substantially
reduced given the complexity of the inquiry. See generally,
Feather D. Baron, The Nondischargeability of Student Loans
in Bankruptcy: How The Prevailing “Undue Hardship” Test
Creates Hardship of Its Own, 42 U.S.F. L. Rev. 265 (2007).
Because the undue hardship standard is extremely difficult to
meet,25 a debtor who would meet the undue hardship standard
and yet is unable to obtain an undue hardship determination
because it is not yet ripe may be forced to rely on public
benefits—or may turn to credit as a means of meeting their
basic needs. See generally, Elizabeth Warren, Less Stigma or
More Financial Distress: An Empirical Analysis of the
Extraordinary Increase in Bankruptcy Filings, 59 Stan. L.
Rev. 213 (2006). In a case where a debtor faces genuine
undue hardship from student loan debt, the debtor’s best shot
at a fresh start may be to litigate the matter in a Chapter 13
case.26
25
See, e.g., Brunner v. N.Y. State Higher Educ. Serv. Corp. (In re Brun-
ner), 46 B.R. 752, 753 (Bankr. S.D.N.Y. 1985), aff’d 831 F.2d 395 (2d
Cir. 1987) (noting that “[t]he existence of the adjective ‘undue’ indicates
that Congress viewed garden-variety hardship as [an] insufficient excuse
for a discharge of student loans”).
26
An additional reason for permitting undue hardship determinations to
be made closer to the time of filing is that the amount of repayment to the
student loan creditor through the plan may vary depending upon whether
the loans are dischargeable. Section 1322(b)(1) provides that a plan may
create a class of claims that is treated differently from other unsecured
claims if the plan does not discriminate unfairly. Section 1322(b)(1) pro-
vides that a debtor’s plan may “designate a class or classes of unsecured
claims, as provided in section 1122 of this title, but [the plan] may not dis-
criminate unfairly against any class so designated.” The debtor or trustee
may wish to seek to confirm a plan that classifies the student loan creditor
differently from other creditors depending on whether the student loan
9860 In the Matter of: COLEMAN
[17] Prudential ripeness considerations do not warrant tak-
ing the undue hardship determination away from the bank-
ruptcy court at the time when its resolution may be integral
to successful completion of the plan. Absent a constitutional
ripeness impediment to the undue hardship determination—
which does not exist here—we see no prudential reason to
delay the determination where the record, as here, is suffi-
ciently well-developed for the bankruptcy court to undertake
the analysis.
AFFIRMED.
creditor is entitled to payments after the completion of the plan and subse-
quent discharge. Although non-dischargeability alone is not a sufficient
reason for permitting debtors to classify student loans differently from
other debt, if discrimination furthers the goals of the debtor, satisfies the
purposes behind Chapter 13, and does not require any creditor or group
of creditors to bear an unreasonable burden, the debtor may be able to
make greater payments to the student loan creditors under the plan. In re
Sperna, 173 B.R. 654, 660-61 (9th Cir. BAP 1994). Because one of the
key purposes of the Bankruptcy Code is to provide the debtor with a
“fresh start,” the plan might classify the student loan creditor for greater
repayments so that the debtor has less student loan debt remaining upon
emerging from bankruptcy. See, e.g. Seth J. Gerson, Separate Classifica-
tion of Student Loans in Chapter 13, 73 Wash. U. L.Q. 269, 278-79
(1995). Without an undue hardship determination, this classification anal-
ysis is greatly impeded. A resolution of the undue hardship question will
certainly aid the bankruptcy court and the parties as they move forward
with the Chapter 13 plan.