B1040 (FORM 1040) (12/15)

ADVERSARY PROCEEDING COVER SHEET

(Instructions on Reverse)

ADVERSARY PROCEEDING NUMBER

(Court Use Only)

PLAINTIFFS DEFENDANTS

ATTORNEYS (Firm Name, Address, and Telephone No.) ATTORNEYS (If Known)

PARTY (Check One Box Only)

□ Debtor □ U.S. Trustee/Bankruptcy Admin

□ Creditor □ Other

□ Trustee

PARTY (Check One Box Only)

□ Debtor □ U.S. Trustee/Bankruptcy Admin

□ Creditor □ Other

□ Trustee

CAUSE OF ACTION (WRITE A BRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED)

NATURE OF SUIT

(Number up to five (5) boxes starting with lead cause of action as 1, first alternative cause as 2, second alternative cause as 3, etc.)

FRBP 7001(1) – Recovery of Money/Property 

□11-Recovery of money/property - §542 turnover of property

□12-Recovery of money/property - §547 preference

□13-Recovery of money/property - §548 fraudulent transfer 

□14-Recovery of money/property - other

FRBP 7001(2) – Validity, Priority or Extent of Lien 

□21-Validity, priority or extent of lien or other interest in property

FRBP 7001(3) – Approval of Sale of Property

□31-Approval of sale of property of estate and of a co-owner - §363(h)

FRBP 7001(4) – Objection/Revocation of Discharge

□41-Objection / revocation of discharge - §727(c),(d),(e)

FRBP 7001(5) – Revocation of Confirmation

□51-Revocation of confirmation

FRBP 7001(6) – Dischargeability

□66-Dischargeability - §523(a)(1),(14),(14A) priority tax claims

□62-Dischargeability - §523(a)(2), false pretenses, false representation, 

actual fraud

□67-Dischargeability - §523(a)(4), fraud as fiduciary, embezzlement, larceny

(continued next column)

FRBP 7001(6) – Dischargeability (continued)

□61-Dischargeability - §523(a)(5), domestic support

□68-Dischargeability - §523(a)(6), willful and malicious injury

□63-Dischargeability - §523(a)(8), student loan

□64-Dischargeability - §523(a)(15), divorce or separation obligation 

 (other than domestic support)

□65-Dischargeability - other

FRBP 7001(7) – Injunctive Relief

□ 71-Injunctive relief – imposition of stay

□ 72-Injunctive relief – other

FRBP 7001(8) Subordination of Claim or Interest

□ 81-Subordination of claim or interest

FRBP 7001(9) Declaratory Judgment

□ 91-Declaratory judgment

FRBP 7001(10) Determination of Removed Action

□ 01-Determination of removed claim or cause

Other

□ SS-SIPA Case – 15 U.S.C. §§78aaa et.seq.

□ 02-Other (e.g. other actions that would have been brought in state court 

if unrelated to bankruptcy case)

□ Check if this case involves a substantive issue of state law □ Check if this is asserted to be a class action under FRCP 23

□ Check if a jury trial is demanded in complaint Demand $

Other Relief Sought

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 1 of 10
B1040 (FORM 1040) (12/15)

BANKRUPTCY CASE IN WHICH THIS ADVERSARY PROCEEDING ARISES

NAME OF DEBTOR BANKRUPTCY CASE NO.

DISTRICT IN WHICH CASE IS PENDING DIVISION OFFICE NAME OF JUDGE

RELATED ADVERSARY PROCEEDING (IF ANY)

PLAINTIFF DEFENDANT ADVERSARY 

PROCEEDING NO.

DISTRICT IN WHICH ADVERSARY IS PENDING DIVISION OFFICE NAME OF JUDGE

SIGNATURE OF ATTORNEY (OR PLAINTIFF)

DATE PRINT NAME OF ATTORNEY (OR PLAINTIFF)

INSTRUCTIONS

The filing of a bankruptcy case creates an “estate” under the jurisdiction of the bankruptcy court which consists of 

all of the property of the debtor, wherever that property is located. Because the bankruptcy estate is so extensive and the 

jurisdiction of the court so broad, there may be lawsuits over the property or property rights of the estate. There also may be 

lawsuits concerning the debtor’s discharge. If such a lawsuit is filed in a bankruptcy court, it is called an adversary 

proceeding.

A party filing an adversary proceeding must also must complete and file Form 1040, the Adversary Proceeding 

Cover Sheet, unless the party files the adversary proceeding electronically through the court’s Case Management/Electronic 

Case Filing system (CM/ECF). (CM/ECF captures the information on Form 1040 as part of the filing process.) When 

completed, the cover sheet summarizes basic information on the adversary proceeding. The clerk of court needs the 

information to process the adversary proceeding and prepare required statistical reports on court activity.

The cover sheet and the information contained on it do not replace or supplement the filing and service of pleadings 

or other papers as required by law, the Bankruptcy Rules, or the local rules of court. The cover sheet, which is largely selfexplanatory, must be completed by the plaintiff’s attorney (or by the plaintiff if the plaintiff is not represented by an 

attorney). A separate cover sheet must be submitted to the clerk for each complaint filed.

Plaintiffs and Defendants. Give the names of the plaintiffs and defendants exactly as they appear on the complaint. 

Attorneys. Give the names and addresses of the attorneys, if known.

Party. Check the most appropriate box in the first column for the plaintiffs and the second column for the defendants.

Demand. Enter the dollar amount being demanded in the complaint.

Signature. This cover sheet must be signed by the attorney of record in the box on the second page of the form. If the 

plaintiff is represented by a law firm, a member of the firm must sign. If the plaintiff is pro se, that is, not represented by an 

attorney, the plaintiff must sign.

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 2 of 10
Counsel for the Plaintiff / Debtor

Brett Alexander Zwerdling, VBN 39569 

Zwerdling, Oppleman & Adams 

5020 Monument Avenue 

Richmond, VA 23230 

Phone 804-355-5719 Fax 804-355-1597 

bzwerdling@zandolaw.com

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

In re: Sean Masataka Munekiyo, 

 Debtor. 

)

)

)

)

)

)

Case No.: 16-33751-KLP

Chapter 7 

AP No._________ 

Sean Masataka Munekiyo, 

 

Plaintiff 

v. 

USB ELT BELA 

c/o Pennsylvania Higher Education Assistance Agency /dba/ 

American Education Services 

CT Corporation System, Registered Agent 

116 Pine Street – Suite 320 

Harrisburg, PA 17101 

FCDB PSL Trust 

c/o Pennsylvania Higher Education Assistance Agency /dba/ 

American Education Services 

CT Corporation System, Registered Agent 

116 Pine Street – Suite 320 

Harrisburg, PA 17101 

FCDB PSL Trust 

The Corporation Trust Company, Registered Agent 

Corporation Trust Center 

1209 Orange Street 

Wilmington, DE 19801 

FCDB PSL, LLC 

The Corporation Trust Company, Registered Agent 

Corporation Trust Center 

1209 Orange Street 

Wilmington, DE 19801 

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 3 of 10
FCDB PSL II, LLC 

The Corporation Trust Company, Registered Agent 

Corporation Trust Center 

1209 Orange Street 

Wilmington, DE 19801 

Educational Funding of the South, Inc. 

c/o Ron Gambrill, Registered Agent 

501 Corporate Centre Drive 

Franklin, TN 37067-6422 

Pennsylvania Higher Education Assistance Agency /dba/ 

FedLoan Servicing

c/o Daniel Weigle, Senior Vice-President 

P.O. Box 69184 

Harrisburg, PA 17106-9184 

Great Lakes Educational Loan Services, Inc. 

c/o Jeff Crosby, Registered Agent 

2401 International Lane 

Madison, WI 53704 

Nelnet Servicing, LLC /dba/ Firstmark Services 

c/o CT Corporation System 

5601 S. 59th Street 

Lincoln, NE 68516 

Acapita Education Finance Corporation 

c/o Murray Watson, Jr., Registered Agent 

2600 Washington Avenue 

Waco, TX 76710 

Defendants. 

DEBTOR’S COMPLAINT TO DISCHARGE EDUCATION LOANS

COMES NOW the Debtor / Plaintiff (hereinafter “Plaintiff”), by counsel, and for his 

complaint to discharge educational loans respectfully represents as follows: 

 

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 4 of 10
JURISDICTION

1. Jurisdiction of this Court over the instant adversary proceeding is based upon 28 

U.S.C. §§ 1334 and 157 because this action arises in and relates to the bankruptcy case of 

the Debtor, a chapter 7 case, filed in this Court on July 29, 2016. 

2. This proceeding is a core proceeding under 28 U.S.C. § 157(b)(2) (B) and (I). 

PARTIES

3. Plaintiff is a natural person, Virginia resident and citizen of the United States of 

America, and the Debtor in this case. 

4. Upon information and belief, Defendant USB ELT BELA is an educational loan entity 

and a creditor in this bankruptcy case and whose claim is being serviced by the Pennsylvania 

Higher Education Assistance Agency /dba/ American Educational Services, which is a 

corporate entity organized under the laws of the Commonwealth of Pennsylvania.

5. Upon information and belief, Defendants FCDB PSL Trust, FCDB PSL, LLC and FCDB 

PSL II, LLC are related educational loan entities and joint creditors in this bankruptcy case 

and whose claims are being serviced by the Pennsylvania Higher Education Assistance 

Agency /dba/ American Educational Services, which is a corporate entity organized under 

the laws of the Commonwealth of Pennsylvania.

6. Upon information and belief, Defendant Educational Funding of the South, Inc. is an 

educational loan entity organized under the laws of the State of Tennessee and a creditor in 

this bankruptcy case, and whose claim is being serviced by Great Lakes Educational Loan 

Services, Inc., an entity organized under the laws of the State of Wisconsin. 

7. Upon information and belief, Defendant Pennsylvania Higher Education Assistance 

Agency /dba/ FedLoan Servicing is an educational loan entity and a creditor in this 

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 5 of 10
bankruptcy case organized under the laws of the Commonwealth of Pennsylvania. 

8. Upon information and belief, Defendant Acapita Education Finance Corporation is an 

educational loan entity and a creditor in this bankruptcy case organized under the laws of the 

State of Texas, and whose claim is being serviced by Nelnet Servicing, LLC /dba/ Firstmark 

Services. 

FACTS

9. On July 29, 2016, Sean Munekiyo (the “Debtor”) filed a petition for relief under chapter 

7 of title 11 of the United States Code, in the United States Bankruptcy Court for the Eastern 

District of Virginia, Richmond Division. 

10. Plaintiff attended medical school at St. George’s School of Medicine in Grenada 

between 2002 and 2007. 

11. Plaintiff obtained student loans from the Defendants, or has student loans being serviced 

by the Defendants, in order to pay for tuition and related costs. 

12. In his schedules, the Debtor listed student loan debts totaling $530,806.00 as being owed 

collectively to the Defendants. 

13. Upon receiving his Medical Doctor degree, he applied for residencies at 609 hospitals 

and institutions between the years of 2007 and 2012. 

14. Plaintiff spent at least $7,440.00 in direct residency application costs and between an 

estimated $7,000.00 and $8,000 in indirect costs (fees and expenses associated with licensing 

exams and externships / observerships) applying to the above residencies. 

15. He was systematically denied residencies at each hospital and institution presumably 

because he attended a medical school outside of the United States of America. 

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 6 of 10
16. In an attempt to utilize his medical knowledge, he applied and briefly attended the 

Pennsylvania College of Optometry, but was not able to complete his degree there. 

17. Plaintiff is now enrolled in online courses through the University of Maryland in order to 

obtain a Masters in public health, focusing on health care administration or public health 

analysis and policy. 

18. The average salary of a healthcare administrator is $64,758. 

http://www.payscale.com/research/US/Job=Healthcare_Administrator/Salary 

19. Debtor had expected to have an income of at least $189,000 after completing his 

residency, which is the average base salary for generalists. Because he cannot obtain a 

residency, he cannot become a generalist or any other kind of medical doctor without further 

training. http://www1.salary.com/Doctor-Salary.html

20. Currently, Plaintiff has $126.00 of income per month. 

21. Plaintiff has inherited an estimated $33,000.00 which has been surrendered to the 

Chapter 7 trustee in this case. 

22. Plaintiff expects to live in the state of Virginia where his average cost of living will be, 

according to IRS allowances, approximately $42,696.00 per year. 

23. Plaintiff’s taxes, retirement and health insurance is estimated to be $25,258 of the 

$64,758.00. 

24. Plaintiff’s net income, therefore, would be approximately $39,500.00, which is less than 

the average $42,696 expected costs of living. 

THEORY

25. The issue presented is whether debtor's student loan is excepted from discharge as an 

undue hardship. Bankruptcy Code § 523 provides in the relevant part: (a) A discharge under 

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 7 of 10
section 727...of this title does not discharge an individual debtor from any debt (8) unless 

excepting such debt from discharge under this paragraph would impose an undue hardship on 

the debtor and the debtor’s dependants, for (A)(i) an educational benefit overpayment or loan 

made, insured, or guaranteed by a governmental unit, or made under any program funded in 

whole or in part by a governmental unit or nonprofit institution; or (ii) an obligation to repay 

funds received as an educational benefit, scholarship, or stipend; or (B) any other educational 

loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue 

Code of 1986, incurred by a debtor who is an individual. 

26. The “Brunner Test” is the applicable standard in the Eastern District of Virginia in 

determining the dischargeability of an educational loan. Lohr v. Sallie Mae, et al. In Re 

Lohr, 252 B.R. 84 (2000). 

27. Under the Brunner Test, a debtor must establish three elements to qualify for the undue 

hardship exception. First, the debtor must establish that he cannot, based on current income 

and expenses, maintain a “minimal” standard of living for himself and his dependents if 

forced to repay the loans; second, that this state of affairs is likely to persist for a significant 

portion of the repayment period of the student loan; and third, that the debtor has made good 

faith efforts to repay the loans. Brunner v. New York State Higher Educ. Servs. Corp. In re 

Brunner, 46 B.R. 752, 754 (S.D.N.Y.1985), affd, 831 F.2d 395 (2d Cir.1987). 

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 8 of 10
28. FIRST PRONG: MINIMAL STANDARD OF LIVING: as the Plaintiff’s estimated 

allowed expenses as determined by the IRS would exceed his net income, this demonstrates 

an inability to maintain what the IRS considers a minimal standard of living for himself. 

29. SECOND PRONG: LIKLINESS OF THIS STATE OF AFFAIRS TO PERSIST: As the 

education loans exceed a half-million dollars, the monthly payments necessary to pay this 

debt off over between now (the debtor is 45) and retirement age of 65 WITHOUT 

INTEREST would be approximately $2,212.06 per month. In other words, to simply meet 

his expenses and pay just the principal of the loans off, Plaintiff would have to make at least 

$29,740.00 more than $64,758.00 per year in order to accomplish this without paying interest 

on the loans. 

30. THIRD PRONG: GOOD FAITH EFFORT: the plaintiff is committing his inheritance to 

the bankruptcy estate when he could have received the money, used it to live or pay for 

school, and then filed the bankruptcy. Instead, he decided to commit the money to the 

bankruptcy and pay for whatever it could. Further, Debtor has made every effort to obtain a 

residency or pursue an alternative career, but the best he can do will not even allow him to 

afford what the IRS considers standard. 

31. There is a certainty of hopelessness that the Plaintiff will never be able to pay the full 

amount of his student loans. The possibility of the Plaintiff repaying the full amount of his 

student loans is virtually non-existent unless the bankrupt is stripped of all that makes life 

worth living. 

 

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 9 of 10
PRAYER FOR RELIEF

WHEREFORE, your Plaintiff respectfully requests the educational loans as either owned 

or serviced by the Defendants, and being listed in his bankruptcy petition, be discharged in 

whole or in part, and for other such relief as this court finds appropriate. 

 Sean Masataka Munekiyo 

 /s/ Brett Alexander Zwerdling

 Counsel for the Plaintiff 

Counsel for Sean Masataka Munekyio

Brett Alexander Zwerdling, VBN 39569 

Zwerdling, Oppleman & Adams 

5020 Monument Avenue 

Richmond, VA 23230 

Phone 804-355-5719 Fax 804-355-1597 

bzwerdling@zandolaw.com

Case 17-03682-KLP Doc 1 Filed 05/22/17 Entered 05/22/17 11:52:02 Desc Main

 Document Page 10 of 10