before us this morning is whether the bankruptcy judges legal conclusions were correct we contend they were not guaranteed student loan programs one of the most important social programs we have without regard to age gender disability or force of studies congress mates congress guarantees that all has access to higher education and in exchange congress restricts bankruptcy relief to those most dire at trial he's mason is thirty three year old former gold boxing champ he is well educated he's not married he has no children he had been diagnosed with a learning disability in the third grade and he testified that he has some trouble reading nevertheless he went on to get a bachelor's degree in philosophy with a grade point average of higher than three point zero he was accepted to gonzaga law school where he graduated in three years in one thousand nine hundred nine one year later he took the bar and he did not pass he filed bankruptcy in january but i think it's normally discussed in the third prong which you say is that as a matter of law there's the there's the program that people can access that i think it's for twenty five years and they they adjust the amount that you pay and then at the end of twenty five years whatever you haven't paid it would you suggest that if someone and he apparently said he hadn't done and he hadn't applied for that cracked that's cracked so what are you basically say as a matter of law that someone's at least kind of tr out before they get to satisfy good faith yes your honor most courts have indicated that a good faith effort to repay the loan includes considering the income contingent repayment program which is the program run by the department of education that allows debtors to pay a portion of their income depending on the poverty guidelines and their family size and their income level they must at least consider this they don't have to apply for it because this is not a silver bullet for all debtors it does not work for everybody but in this case i believe the testimony was for mr mason at his income level his paying would be approximately one hundred sixty five dollars a month now the important thing here is he worked about fifteen hours a week in the month prior to the trial and sometimes he would work mostly focused on sending eighty four applications into the transportation security agency for various since there get testified that he had made some other efforts to find work he had put in a couple of applications to be an investigator i think he had  even applied for one paralegal position but the expert testimony at trial indicated that his job search really focused on one or two applications among which was wholly inadequate according to the  testified as an expert witness she said that her of an average or responsible job search would be more like four or five applications a day sometimes and in this case he had done a couple of applications a month there really wasn't any indication that he wanted to find additional work and furthermore there wasn't any indication that he wanted to use the the j d degree that he had earned with these with these student loans he failed the bar once after waiting a year to take it and he testified that he had no intention of taking it again despite the fact that he had lengthy periods of unemployment and he had sporadic seasonal part time work there are all g factor to be considered under the good faith that yes your honor as i indicated earlier sometimes courts will indicate the debtor's lack of efforts to maximize income under the first prong but i think most courts really say as a legal conclusion that he met the good faith test the court also found underlined findings of fact that he had not made any effort to take the bar he indicated that he had no intention or no desire to study for the bar he also the judge also made findings of fact that he hadn't really done solid job search inside or outside so obviously in terms have to get to where you're asking this and in this case i think it's appropriate to look at the legal conclusion of whether he made a good faith effort to maximize his income which we respectfully contend he did not and not see this not satisfy the third prong of the bruner slash penya test we component of it i think i don't think that is determinative but i think it is very highly probative that most courts around the country do consider that to be a highly probative part of the third prong additionally he needs to maximize his income he needs to minimize his expenses he needs to have otherwise even a couple months ago in the nice cases this court has said that the additional circumstances must show insurmountable barriers and in the nice cases the court listed probably a dozen factors or so that were not  dispositive of the insurmountable barriers but certainly probative of the barriers that it better could face to satisfy the second prong and he has none of those twelve he has no advanced age he has no physical impairment at night two and a half minutes i don't know if you want to reserve the balance that are just finished that this is not just finish up this point real quickly and i think the other important part is that the preexisting conditions cannot be very if the conditions that the debtor asserts to satisfy the second prong and i think it's a logical position to take it is that mean that we should not consider his difficulty learning is really just ability i think that's correct because if you look at the underlying logic he's had this learning disability since third grade he has gone through all of obviously primary school and high school with this learning disability and he made the conscious choice to go out and take the student loans out to go to college and to law school and now he's coming back and decision on the student if the student has a condition that he knows about and he takes out a significant amount of student ball and mike mr mason did here he should not then be allowed to turn around immediately after getting the benefit of those student loans and asserti you may say well you know these things were reasonable one person in that circumstance and yet here telling us we can't consider this or who says we have to consider his if he had this ability at all i'm not necessarily that you had to consider him as no disability what i am saying is that it's counterintuitive to allow a debtor to come in and rely on the same condition that he has had prior to taking up the loans and then turning around immediately after the loans were  the loans come due and saying because of this condition i can no longer repay the loans i think that's counterintuitive and that's reciprocally why congress has restricted the bankruptcy discharge to those in the most dire circumstances and the other thing here and i think this is is is very important but not discussed much by the bankruptcy judge is the nice case says that there is no presumption for the debtor that the financial circumstances will per and the court denies goes on to say that the debtor bears the burden to show that these additional circumstances will cause a continuing inability to pay and in this case there was no discussion by the debt if there was no evidence by the debtor that he had even been diagnosed with this other than his testimony that says i have had problems reading i went to get tested in third grade subsequent to that i've had some problems reading but there is no evidence from the data to show the severity of his of his condition there is no evidence to show that this will continue to impact any type of any type of vocational career and most importantly the only evidence in the case directly contradicts that because he went on to get a fascist degree in philosophy with the three point olds two g p a which is very reading intensive i would respectfully suggest and then he went on to get a law school degree a law degree a concept of a university so the only evidence in the case which is our expert testimony along with the doubters  the briefing raises several issues i would suggest we're not talking about problem one that seems to be conceded by the c m c in this case so we're really focusing on prongs two and three and i want to take them out of the water to the differ on the interpretation of the evidence for example at the end of his discussions he talked about how successful mr mason has but if you look at the evidence that's in the record you will see that it hasn't been an easy road for mr mason himself out he was very persuasive the school accommodated him via letting him take extra time on exams the school accommodated him by ask him to get a proctor moving backwards a bit his health alsace course were very low it was very hard for him to get into the school and fact if if the court will review the record it will see that in getting into law school he actually went to the summer has given all that obvious to me that is intelligen the well above the average in the population no question one man but that question what we've done with that but even more basically you know there's not much in the record what it's learning disability is what that means and how that handicaps them today has not dyslexia he has to key mixes up letters and words and fact the expert recognizes that the expert recognises that he has the disability expert says in order for him to succeed and cloisters are going to have to give him some line it doesn't mean he's not employed will the question is whether these are things that he's capable of holding a full time job well the question is will the employer accommodate him and the and the further question is is it right in this case to be looking at a person who was unable to pass the bar who went through all this the educational establishment i mean a lot of people don't pass the bar the first time in california told fifty percent of all people think that but if you never try the second time that he didn't try a second time in the state of idaho state might question this i don't know if we can compare california to i don't know i think it's a different maybe a different bar but that statistic is in the record i would suggest unlike that the usual law student that comes out  try something on that program were allows you to pay a lesser amount and it twenty five years and he's not working full time and you know in terms of it's friday and i've been here a week and i'm like really tired and  you know i'd like to work fifteen hours a week too but it's you know or sometimes if you're his disability in terms of yeah he probably would have difficulty with disability working at a job where you have to read a lot but there are a lot of jobs where you don't have to read a lot where he was went making summer twelve hundred dollars five hundred a month i think rice and and any west end you know he doesn't have all this credit card debt he's not going you know he's not living extravagantly he he's fine on all of those things but there isn't any reason that he can't work more hours that he can't work a second job and so those things i think would trouble anyone looking at it when they think why should you get th charge right now why shouldn't you just try to for twenty five years pay what you can your honor and that in my response that i think if you look at the record there's a couple things that we need to highlight on that first of all it wasn't like he was  trying to find a job i think the testimony was quite clear and fact page is one thirteen and one fifty three one fifteen of the record he testifies that he was on a first name basis with the job service person at the department of employment he was applying his testimony was he had submitted transportation security but that's not what mr mason testified to he testified that he had submitted over one hundred applications that he continued to to request information from the job service he testified also that he was trying to get a second shot he just hadn't been successful at the time of trial so and secondly when he got out of law school he worked for micron and the reason he lost that job is he was laid off so this is not a gentleman that just got a law school from the bar and th up his hands he was trying to obtain employment i can see that at the time of the trial he hadn't changed full time employment but he was quite clear and in fact in fact you'll see it in the judge's decision he thought he could  he has a lot of ambition he he he  just i just have to suggest to you we have to look at the record he's not like this typical student that gets through school year if you look at the record it was a huge challenge for him to get through through elementary school take the heat flunked out of high school and went to an alternative school and got his degree of the records will show that tortured path of how he got to where he was eventually graduating from a law school with a lot agree he then comes out and he gets a job i want to address the income contingency plan before her get it too i think the evidence is pretty clear mr mason did try and his parents tried to obtain different programs with the with those or to get into those types of programs and so i don't think as far as looking at the good faith that c m c is right i think there was that kind of effort he i don't think it's disputed he he cut back to his expenses at the time and probably didn't have health insurance he was driving an old car he was living i would suggest with his expenses below poverty second t v he wasn't living any kind of an extravagant lifestyle if he had cut back and third i think the evidence in the record shows that this was a man who attempted to work out something for four or five years after law school to work out a payment plan and it wasn't forthcoming he testified and his mother testified at trial that those applications ha been made so when you when you look at the big picture of you know can this man afford to pay the e c m c one hundred thousand dollars obligation i think what's important is the bankruptcy judge concluded that  things but it wasn't exclusive all it was saying is show us some reason why he's different from somebody else show us some reason why looking at the future for this man today will he be able to pay one hundred thousand dollars of of obligations what the court concluded what the bankruptcy court concluded was through the saxman analysis that this court brought down that i can use use my discretion  mc has not question and abuse of discretion by the judge saying i find that he can't pay one hundred thousand dollars but i find he can pay thirty four thousand two hundred dollars i think i'm close on that plus interest if given some two year plan then he's going to pay that so we don't get at this level we don't question that at all we re with the partial discharge and we think this bankruptcy court came down under the saxman analysis