in foreclosure proceedings isac wrecked yes at what's happened to those proceedings to be honest with you your honor i don't know what the status is of the foreclosure i believe that mr murphy is still residing in honor your question is on point and you're probably correct that under the current administrative procedures that the department of education and e c mc use they would probably wait or they would try to convince mr murphy to take on their i c r p the income to repay the plan but i submit to the court as our paper say that that is not the question sure you're right there are practical circumstances but the question is whether or not the i c r p will save him it's whether stat i understand your legal argument so standing there what adverse circumstances will your client suffer if there is affirmative well number one we don't know exactly what the deal he will do they may offer up a income contingent repayment plan and mr murphy may not go for that and they may seek to take actions maybe he will get forty thousand dollars range yes i believe i recall that testimony that if i could add a little bit that thirty thousand dollars would do anything to enable him to pay two hundred fifty thousand dollars worth of loans over the period of his remaining life ok and how old is he now and is there any evidence about the usual retirement age sixty five is his age and the evidence from the record was that he was going to probably begin to draw social security at sixty six sixty two a trial ok thank you i krishi eight your forbearance now we'll hear the argument with the course it below was employer standard which was more akin to the more restrictive brunner test first first air at the well that tells me that the cause of evidence the court said circuit courts of appeal have said that essentially we quoting that's correct according this court so let me address the bonus which is the night in ninety five situations that truly exceptional circumstance number one the only issue before the divorce court was whether a federal credit union is a governmental unit it was a pure statuary construction case i do hardship was mentioned once and that court took a quote from a nine hundred eighty seven vermont bankruptcy decision where that court when it said those words was focused on the purpose the original purpose of up five point three eight which was the concern about students coming out of school at the beginning of their earnings and trying to get out of dodge bullets fast well that was the concern back in that in the  extraordinary circumstances we reject unique circumstances and courts within the first circuit have expressed we rejected extraordinary circumstances as part of that would how the test second issue so i would suggest from d back up i thought the language was exceptional circumstances yes that's correct truly exceptional service yes why is that error to use that and even if it were single factor that you that's right what the courts did here start with the bankruptcy court that court when it mentioned health issues i believe colored its review of factors by the health issue if you look at the end of the looking at circuit courts mainly look at health issues colored everything else the court did and on top of that your honor while truly exceptional circumstances was the mean even as used by the ninety ninety five court a showing of a certainty of hopelessness that if you look at no this squad has never adopted that standard that's right and if you look at what both the bankruptcy court did and what the district court did the bankruptcy court looked at mr murphy and said in the early two thousand at the height of his earnings of one hundred sixty five thousand dollars he was quote unquote a high earner and then went on to say that as part of the testimony mr eisner of the ruling mr murphy never bided evidence that at the time he took out the loan he would be able to repay them that may be true but that's a non sequitur undue hardship is forward looking that colored the court's decision in effect it said well the only thing that you yawned was to rule that no court can consider the circumstances under which the law was taken out and be on do hardship analysis well that's what that does not seem ok so that's an interesting question and i recognize that many courts look at this and say you made a bargain you took a loan out and as a result of the laws of the discharge of student loan debts you may be stuck with that i get that and that may be a reasonable factor to consider when someone is in their younger years before they seek a discharge here your honor the fact that mr murphy made a hundred sixty five thousand dollars in his last year of his job in two thousand and two might be pertinent if we were if we were closer to that time and his earnings back in two thousand and two were ok thank you very much i want to point out that at least the way one court looks at it in this jurisdiction look at it and others then look at it when you look at the totality test the three factors it can be boiled down into the following and the debtor now or in the foreseeable future maintain a reasonable minimal standard of living for the debtor and debtors dependents and so forth to make payments on the debt or student loans i would suggest if the court below had looked at the three factors past present future financial resources reasonable living expenses other relevant circumstances and then filtered it through what i just said the court would have determined that mr murphy was entitled to a discharge the next thing that we addressed was the i c r c and i would suggest to your honor's that even though the government might come to mr murphy and say here sign this up we're never going to ask you to make a payment that is not what the statute says it's inconsistent with the law and it is in effect i don't want to use the word creation but it's administrative function of the government that allows that and to say that the government can simply forbear and then you'll never get a discharge would suggest the difficulty is that the bankruptcy court said that didn't matter my decision one way or another but the bankruptcy its first decision said i find this very significant the district court said that doesn't matter one way or another but the district court applied what was in effect a certainty of hopelessness standard because what it did no story where what you were looking at was a debtor in the mid thirty's coming in asking for a discharge and judge being he said you don't look so bleak when you compare that to the facts of mr murphy coming in thirteen years looking for a effects in addition to what mr pole said i would suggest that there are very few debts student loan debt is who are judgment proof the government has extraordinary collection powers in this area that congress has granted to them in fact they can offset social security benefits to recover student loans so while that would normally be judgment proof outside of with other debts for student loans they are recoverable through tax offsets of tax refunds even court decides to provide guidance in this case to the bankruptcy courts in the circuit about what the end to hardship standard should be we share with the polls you mr murphy's view that the broader test should not be adopted but what we believe the court should and certainly the totality of circumstances is clearly preferable but we think we would hope that the court we take a fresh look at this issue from the perspective of the question that mr pole just mentioned that was articulated so well by this court's bankruptcy appellate panel in the bronx in case many courts have lost sight of that essential question can the debtor now and in the that there is as we said i think there's very little foundation for that in the statutory language however we accept that there should there could be some level of inquiry about good faith but it should be limited to the question of whether the debtors being truly honest about their circumstances in particular with respect to whether they are currently have an inability to repay the loan so it should go to that honesty about  explicitly what the standard is in this case but perhaps more importantly what the standard is not in to that end we would hope that this court or perhaps the single most significant action this court could take in this case is to explicitly court the lower courts tend to ignore these other fact here's a perfect example of this is the sixth circuit in the euler case they mentioned other factors that a court can consider like the fact that the debtor has not completed their education that  be effectively stuck in a low paying job or something like that or their age for example like mr murphy but then when you look at the actual cases that come out the truly exceptional circumstances where the certainty of hopelessness dwar everything else and it calculate it which is entirely consistent with your views and your coming in and asking us to reject this standard which was not in fact  concept of certainty of hopelessness the ultimate decisions are not that much different and i don't know and also the differences between these standards while they are striking in some respects i just i'm not sure that the court is perhaps ready to i can't speculate as to what the supreme court will do but i'm not sure that they're ready to it take a case this issue at this point more morning your honor adam trampy on behalf of educational credit management corporation morning in may please the court this is the kind of case this is the kind of request a discharge the congress ought to address in adopting the under hardship standard there are two facts that drive that one much more important in this case than the other the first is that mr murphy took out nearly all of the student loans at issue when he was already unemployed and in his fift more importantly the bankruptcy court found as a factual matter that murphy had an established a total inability to work and repay some further portion of that debt in the future and the bankruptcy court denied a student loan discharged on the basis of that evidentiary failure that failure under this court's precedent in nash is dispositive under either test so this case isn't really about he doesn't need to be about which test should apply because the facts don't entitle mr graffiti to a discharge under any under either test rale said it's not it's not usually dispositive which test is applied in this case is a perfect example of that this case largely mirrors and rehashes the very same question that this court addressed in that the bankruptcy court had made the same factual finding as to the debtors satisfaction of that burden on future inability to repay yes we would because that fact would be dispositive under either standard and that's what the court held in nash that case came up and the court took briefing and the parties argued about which standard should apply they argued about whether good faith was relevant and the degree to which good face with faith was how much expected i i think that under either test the bankruptcy court has discretion to evaluate each debtor's circumstances both under gruner and under the totality to make an assessment of how much additional time the debtor may be able to work here the bankruptcy court looked at mr murphy's health and lack of any health problems is age is passed employment in his future employment prospects and made a factual finding that and is supported by mr murphy's own testimony that he himself expected to go back to work and make thirty to forty thousand dollars a year and i think that's an important fact to consider in the context of judge lynch's question about what's the practical impact of this what happens if the discharges if th affirms and the discharges deny what happens is and recall that section five twenty three eight deals not with repayment but debt does the lack of a discharge of the debt create an undue hardship education could take and if he doesn't get the thirty to forty thousand dollar a year job that he testified he expects that he will have to pay nothing if he does then all congress asks all the department asks is that he pay what he can and his own evidence that he's submitted as to what that pay what you can would be the department's schedule for the i c r p payment under that thirty to forty thousand dollars a year job assuming that mr murphy and his wife together make around fifty thousand dollars a g i that payment would be five hundred eighty eight dollars a month now if he doesn't get a job the death has to pay nothing but as the bankruptcy court found it he testified there's a likelihood that he will be able to get a job that he and his wife will  debtor meets his burden to show that that zero payment would continue in perpetuity and then roll it in the i c or he would be futile and there's no reason to subject a daughter to a futility that's fine but that's not this case this case we have a daughter who testified that he expects to make some money if you pay that five hundred eighty eight dollars a month over the twenty five years and maybe he won't maybe he'll go for fifteen years and then he'll retire and then he again he has to pay nothing at that point but if you if you were to pay that over twenty five years that's over one hundred seventy five thousand dollars it's returns of the department of education that gets returned to the student loan program and that's the policy here that's what congress asked that's the background for the under hardship standard and it's the background for these alternative repayment programs part of the quid pro quo is that in exchange for these these loans at favorable rates favorable programs that you at least commit to pay what you can it's not even that you pay all of it a person  held that five twenty three eight trumps the the general fresh start policy implication of bankruptcy if they can't show under arch exactly that's correct the bankruptcy court could have but it did not find that it was significant that the circumstances under which these loans were taken up were significant the policy behind under hardship would suggest and the legislat history behind that standard would suggest that if that if anything there is an interest by congress in preventing discharge of debt in circumstances where the debtors the debtors hardship is self inflicted and here we have somebody who's potentially on the on the verge of making a decision about retirement and is unemployed and then takes zero seven loans in succession over a course of years up to one hundred some thousand dollars for his children's education and then seeks to come back and say oh i'm getting up there in years and i'm unemployed that's a circumstance that ought to be considered by any bankruptcy court as to whether that hardship is on do but i don't i don't think the court needs to reach that question in this case because just as in nash we had a finding that doesn't even deal with good faith as to the debtors future inability to repay that finding is largely intact unchallenged he testified that he expected to make thirty or forty thousand dollars a year and just as the court said in ash there's no need to reach the questions of good faith or the question of the test because under any test anybody proposes a court must look into future ability to repay and we have a factual finding here that establishes that murphy can't win under either standard as far as the factual considerations as as we get into the test the test that he's asking for is the test he's got but he let me make sure i understand the question is the court asking whether those facts that you've just articulated should be considered in a good faith analysis yes or if this doesn't  that he did have a future likely inability to repay so sure the bankruptcy court made a couple collateral factual findings that are relevant to that ultimate factual finding the two most important were his lack of any health issues that would prevent him from working and there was a factual finding that the bankruptcy court found it likely that mr murphy wouldn't be able to increase his income in the short run so those two we certainly have but weighing mr murphy's previous history and his lack of any health issues the bankruptcy court found that in the long run there was a likelihood that mr murphy would be able to pay some portion of the debt that needs to be reviewed for clear air if anything just as it was a national we submit that faction that factual finding is supported by the by the testimony and all the other factual findings made by the bankruptcy court may i ask  court and say circumstances really different now i'm older yeah i hope for a job but i couldn't find one and i made diligent  out that he would need to file a new bankruptcy so you know again subject is but yes or is yes i mean you can file successive under hardship adverts are proceedings if you're finally in the context of successive bankruptcies you just can't do it didn't within the same and we think there's a substantial agreement as well these and want to be important factors in all the circuits and i think any of the circuits disagree that one looks at that that or is present an immediate ability to repay the loan i think that's a common fact in both it asks whether there are additional circumstances indicating that the economic difficulties that prevent payment now are likely to continue for a significant portion of the repayment period of the law and we think that both those criteria are important where we disagree is for example in the eighth circuit mong case that adopted the test part of the circumstances the court considered were circumstances that were the sort of general at what will position of the debtor and then bear directly on the or whether the debtor can make a reasonable effort to be and your honor has asked some questions about whether the exceptional circumstances standard articulated by this court earlier is really consistent with the certainty of hopelessness language  some of the other courts have used and talking about just how difficult must it be for the debtor to repay in the future we think the best articulation of this perspective long of that is that there has to be a demonstrated i understand you're wrong and the arts wrong our language exceptional circumstances would be which would be fine if the court understands that to mean there has to be demonstrated an ability to read it all over a significant significant portion of the payment period we think and looking at that question age should not be in and of itself in this positive factor certainly there are things that make home with age that are relevant health conditions disability impaired employment prospects some of those things that unfortunately may be associated with age are certainly relevant but there's simply no reason to use a as a proxy for that you can look at those things indefinitely we don't think the course should be drawing any kind of bright line rule your honor as to what is you know how old is true old to apply the standard we think it's an individual kind of inquiry we know that and s we suggest that this is approached in conjunction with a course consideration of the income driven hang that plans that are available from the department of education these are plans that can reduce the debtors obligation each year to zero if their economic circumstances don't permit them to make payments on the loan and maintain an adequate standard of living and really the only difference between the kind of discharge that the debtor wants and these repayment back this is the problem with the bankruptcy discharge it is permanent once the debt is discharged it is gone and no change in economic circumstances that might a cure or one year or three years or five years worthwhile for us to take a look it is it's significant analysis that we should buy our own standards is then adopted the news then but i don't want to say it's not worthwhile your honor we think it's not really just thought mr trump's response to the question your honor which is there or does not require an act of futility if you can demonstrate to the debtor and demonstrate that notwithstanding the of elevated he's the payment plans there is no no reasonable likelihood that they'll be any payment for the government this could be for example that or has some sort of disability that precludes any meaningful gainful employment if the debtor lacks any more job skills and has no likely prospect of but an other circumstances where these repayment plans offer very very significant relief to the doubter all that they require is showing each year that these circumstances and that the interests of the program in most