UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TRACY MARIE GIBSON,

Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA STATE

EDUCATION ASSISTANCE AUTHORITY, No. 95-2595

Defendant-Appellee,

and

DEBERA F. CONLON,

Trustee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(BK-94-23424-B; CA-95-268-2)

Argued: April 3, 1996

Decided: May 21, 1996

Before RUSSELL, HALL, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Tom Cain Smith, Jr., Virginia Beach, Virginia, for Appellant. Daniel Gordon Bloor, Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
ON BRIEF: James S. Gilmore, III, Attorney General, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant, Tracy Marie Gibson, brought this action in conjunction

with a Chapter 13 bankruptcy petition, seeking a determination of

whether her student loans are dischargeable in bankruptcy. Gibson

owes Appellees, Commonwealth of Virginia Education Assistance

Authority, approximately $16,000 in student loan debt. Pursuant to 11

U.S.C. § 523(a)(8)(A) (1994), student loans are dischargeable in

bankruptcy only if they first became due more than seven years prior

to the filing of the bankruptcy petition, "exclusive of any applicable

suspension of the repayment period."

Gibson's loans first became due on July 5, 1987. She filed her

Chapter 13 petition on July 22, 1994. Hence, at first blush it appears

Gibson's student loans have been due for the requisite seven years.

However, for 105 days in 1988, repayment of this debt was automatically suspended by virtue of Gibson's filing of a Chapter 7 bankruptcy petition. If these 105 days are considered an applicable

suspension of the repayment period, they must be excluded from

§ 523(a)(8)(A)'s seven-year period, and Gibson's student loans cannot be discharged.

The bankruptcy court held that a prior suspension of repayment

during a Chapter 7 bankruptcy proceeding was not an"applicable suspension" to be excluded from § 523(a)(8)(A)'s seven-year repayment

period. The district court reversed. In so doing, the district court

found that § 523(a)(8)(A)'s plain language requires tolling of the

repayment period during any applicable suspension of repayment.

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Repayment was clearly suspended for 105 days in 1988; hence,

§ 523(a)(8)(A)'s plain language requires that period to be excluded

from calculation of the requisite seven years. Accord Saburah v.

United States Department of Education (In re Saburah), 136 B.R.

246, 254 (Bankr. C.D. Cal. 1992) (holding that length of time repayment was suspended during prior Chapter 7 bankruptcy petition tolls

§ 523(a)(8)(A)'s seven-year repayment period).

To the extent Gibson contended the plain language should be overlooked in favor of congressional intent, the district court recognized

§ 523(a)(8)(A)'s legislative history offers her no support. In enacting

§ 523(a)(8)(A), Congress intended to protect the student loan program

by preventing borrowers from discharging their student loans shortly

after graduation. To further this policy, Congress intended to excerpt

from discharge student loans until they have been"due and owing"

for the statutory period. S. Rep. No. 95-989, 95th Cong., 2d Sess. 79

(1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5865. Application of

the "due and owing" standard to the instant case reveals that Congress

intended suspension of repayment during a previous bankruptcy petition to toll § 523(a)(8)(A)'s seven-year period. While the debt continued to be "owing" during those 105 days, it was not "due" because

of the automatic suspension of repayment. See Georgina v. Higher

Education Assistance Foundation (In re Georgina), 124 B.R. 562,

564 (Bankr. W.D. Mo. 1991) (holding that period during which lender

granted a forbearance of repayment was an "applicable suspension of

repayment" because, while loans were owing, they were not due).

We have read the briefs, heard oral argument, and given full consideration to the parties' contentions. Finding no error in the district

court's thorough opinion, we affirm on its reasoning. Gibson v. Commonwealth of Virginia (In re Gibson), 184 B.R. 716 (E.D. Va. 1995).

AFFIRMED.

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