pingree educational credit management corp and the u s department of education your honor jonathan rosenberg for janet tingling the appellant and the court hear me yes indeed thank you very much if i may proceed please please the court in this case to this day there is at this point still no direct evidence or even understood evidence that tingling when you see him see enter the case they merely wrote a letter provided a letter stating that they are advising the court that these are eight loans that they have ownership over and proper or rule twenty four procedure misting going by the way acting pro se and that may have been the st mistake not illegal one in this case she accepted their entry into the case but she did not accept when they entered the case that they owned those loans it's very clear and it needs to be addressed because it goes on and on about this and oppose my friend across the aisle you see him chief counsel talks about how she stipulated my client mr england stipulated to their ownership of the loans with this consent for them to enter the case under rule twenty four a and b to be very clear needs to be very clear and as our brief says as well the consent order at appendix twenty six dollars very clearly says that the c m c has advised the court the word is advised having advised the court or having before any pretrial order is entered my client files a motion by hand she requesting the court allows all consent to my section of the memorandum most importantly she says in this very short handwritten motion the defendant's proof of legal ownership of all loans controlled by e c m c she disputes that in other words i could read the handwriting on and not but she we have an issue of fact that needs to be looked at my client consented to many of the loans brought forth by education she confessed to some of the amounts by education and she disputed some things that were in her view improper as to the promissory notes and then the event it gets to a pretrial order that ultimately and three of the we discussed three issues that she's precluded from bringing before the court without any hearing on on why these issues are precluded essential a bankruptcy court and that's the word the word of the c m c that they own these eight loans and says went just can't bring evidence regarding anything  the loan amounts or the ownership and then also no medical evidence which they claim the pro se waived and that is not clear goal in the record the big argument from my friends across the aisle and this is more to  hand and saying very clearly and very i think critically to the court as a pro se this is not the case these loans are not owned by these this organization whoever they are and we need proof of that before we government there can be a judgment proceeding involving the actual amount so it does i think preclude my client if they give an approximation right and in an order in the bankruptcy proceeding that later my to stop her from challenging the amoun that's an issue but the big due process issue really involves my client not being able to bring up medical arguments during the proceedings or at least not supposed to be considered of the pretrial order and the big pretrial order here the big issue as a consequence clearly anybody entering a proceeding can just write a letter saying we're not going to asia with you a student loans here are some promissory notes they don't relate to us but hey we only use a loan that's a very scary prospect  and i don't want to get into the word fraud because i don't believe that occurred in this case but it can lead to that and i think maybe without evidence in financial matters involving loans it's a very serious thing with the federal government with that in mind the only problem here that this court has to determine and i think the burner factors we never really got to have those that the hearing of this case the trial this case because without my client being able to present issues regarding her medical or health or any psychological wellbeing or any anything involving who she was as far as her health that order preclude her from ultimately arguing the burner factors properly at trial now we all know when a pro se goes before the court these are my words not courts words it's like shooting fish in a barrel sometimes and it's really in this case shows that what i i think here the pro se did a remarkable job of preserving her rights throughout the proceedings there is nothing more approach i missed england could have done to preserve her rights in this case and there is nothing more you could have done to demand a fair trial court there was an objection made by c m c as the affidavit and part of the affidavit was thrown out because of the pretrial order said you can't bring in medical evidence and ultimately became a circular reasoning throughout the trial that no you stipulated look at the pre proper hearing on the destructive or student loans because she was not able to present evidence before the court as to just even a basic issue issue was a stoneage of eight of the loans and because she was not able to present evidence as to any medical issues which she did not waive knowing voluntarily intelligently and certainly as a pro se not at all it was not also within the discretion of the trial court to deny her that right as to the br the cases we cite to are very persuasive obviously the court can read the cases with with regard to cost and with regard to other cases regarding rule rule sixteen and the discretion the court has i think one of the arguments that i see in both of my friends race across the aisle as they say well other will sixteen is discretionary that the court can tailor however they want rule sixteen pretrial orders but we know that's not the case if pretrial order just predetermines the outcome of the students that that are material to the case i don't think anyone would question that so it's really an argument that doesn't apply to the case of course the court must have great discretion tailoring evidence but they can't tell of the evidence to the point where the pro se or even the plaintiff cannot make herself heard and in this case she was not heard because she was not heard the case could be reversed sent back to trial for a proper proceeding in accordance with the th amendment the united states constitution and that is my argument thank you mr own merit we'll hear st from counsel for educational intervene and most of the time they are consented to like it was in this case so typically the on hardship cases who are focusing on the plate does the plaintiff's financial circumstances and then those are applied to the was a situation where number one she stipulated in the pretrial conference that she had no medical issues and number two she refused to turn over any medical documents and discover moreover the judge in the bankruptcy court wonder that failure to turn over medical records would preclude her from asserting a medical condition at trial and that's exactly what happened so i guess the overall issue here is there's no evidence cores in the stipulated stats in this case arose from the pretrial conference on july st two thousand and eighteen where the bankruptcy court directed the parties to confer and come up with one single joint pretrial memorandum that contained the facts the parties agreed upon and the facts that they just agreed upon other than apparently subsequently changing her mind about some of the facts she stipulated to to not pointed to any actual evidence of it's more about holding her to the fact that she voluntarily stipulated to thank you have a good point on her thank you the bankruptcy court has broad discretion preserving its pretrial order and conducting the trial as an abuse of discretion standard much as counsel three c m c already discussed the procedural issues if the court permits i will go straight to the printer test that argument that appellant makes in this appeal st the bankruptcy court correctly applied the test the court found that mr gambling had not satisfied any of the three prongs of the test first she did not show that if she were required to make monthly payments toward her student loan debt that her standard of living would fall below a minimal level she earned fifty thousand dollars a year though based on her income as testified to a trial by a representative of the department of education her monthly payment under the repay program would be two hundred and sixty six dollars per month that would be the amount she would be required to pay regardless of the total amount owing upon the d and mighty this is presuming that ms tangling would consolidate the c m c debt with the education debt which would qualify her for two hundred and sixty six dollars per month toward all the loans c and education logs so the bankruptcy court appropriately found the missing link could afford to make payments of two hundred and sixty six dollars a month she had tax refunds that averaged out to ano pain make those payments she could trim non essential expenses she could maximize the her interest in the house that she owned by her sister there was extensive trust testimony at trial as to whether mr angling had sought to refinance the house or whether she should mills but she maintained that she could not make these payments out nd the nd prong of the burner test requires that the debtor show additional exceptional circumstances strongly suggestive of continuing inability to repay over an extended period of time is telling didn't put forth any evidence of such exceptional circumstances she alleged that she had a when never put forth any evidence whatsoever regarding this other than her own ass today that when asked by and education to put in this evidence she refused she refused to stipulate to a protective order that would keep this evidence confidential she absolutely refused to put in any evidence regarding her medical condition until right before trial when she sneaks it into the affidavit and then tries to testify to it on the stand however strangely at trial then she knowledge is that this tumor was removed that and she didn't say anything about whether this tumor created an issue in the future that would keep her from being employed as far as the day to trial she was still employed yes she said the tumor was removed and she said she had an enlarged lymph node that went into the record at the trial there was nothing for the court to consider as far as exceptional circumstances with respect to ms tinglings allegedly medical condition she claims that she is an older individual and that she may not have as lengthy a work life as a younger individual might but the courts across the country have held that people who are older than ms ten going people who make far less money per year are not warranted to receive discharges of student loan debt based on the standards that force in bruner and adopted by numerous other circuit courts across the country is can cling also didn't meet the  which requires showing of a good faith effort to repay the loans she made no payments toward the loans held by department of education she was not required to make any payments at that time because up until shortly before trial she had been in a degree producing program and therefore she had received forbearance she was not required to make payments she will now be required to make payments but she didn't take advantage of the repay she didn't make payments toward the c m c she didn't choose to take advantage of the repay option for two hundred and fifty six dollars a month instead she sought discharge in bankruptcy and notably the courts consider as numerous cases we cited in our brief the ratio of a daughter's student loan debt to the total debt for which she is seeking a discharge she entered into bankruptcy merely to discharge a debt for which she put forth no evidence of making any repayment at all accordingly we submit that the bankruptcy court properly determined that ms can cling did not qualify for a discharge of her student loan debt whether i understand the record correctly bad at the time the joint pretrial order stipulation was emerged from the conference if i can say that that your client also did note at that time various matters that she very factual matters that she did dispute that is correct as ready as a sixty nine in fact she submitted to a totally so to or own joint pretrial memorandums and that are that all that said after the fact i am saying contemporaneous with the pretrial order stipulation i thought she neverthe less noted disputed facts most certainly there was n y s i don't got that because for you to tell us that the district judge erd here in accepting that joint pretrial order stipulation from and a pro se i understand that but a pro se who simultaneously noted disputed facts i'm not sure how i see that we then say that well she got to dispute even more later on what am i missing well it certainly is the court that they prosecuted instructed at trial she didn't those things were not to be considered even those that testimony came out it was not to be considered if i recall the transcript correctly and it even came to a point where a want eighty eight the court said there's no there's no factual controversy in this trial whether or not you c m c made a student right to go to it matters that had been stipulated right right they weren't how do you know if the word stipulated is not an accurate it's a word that a legal term of art obviously but it does not accurately framed as to what  she never stipulated that these facts it was what the port adopted ultimately pretrial order but it is it's incorrect what my friend across the aisle says that she stipulated at the government's adopting this position that she stipulated  hundred percent right but i think it hurt draft also if you get to the end of the draft so we're reading into it right in the process i think the proper way we read it you see there's a whole argument that go after she's clearly copying  attorneys put together and adding her part to the end of it if you see at the later paragraph didn't go into detail explaining why these very issues so you're one hundred percent right judge in a draft it appears that she's stipulating to that but it's not a stipulation she's explaining she did about saying the wording later but then she later knows to identify those issues that she doesn't agree with at the pretrial conference right there