# FIL ED
JUN 26 2019 SUSAN M . SPRAUL, CLERK U. S. BKCY

. APP. PANEL O F T HE NI NT H CI RCUI T 

### ORD ERED PU BLISHED

U NIT E D ST A T E S BA NK RU PT CYA PPE L L A T E PA N E L

OF T HE NINT H CIRCU IT In re: PA U L HU RLEY, Deb to r. PA U L HU RLEY, A p pellant,

v. U N ITED STA TES O F A M ERIC A ; A C C ESSLEXIN STITUTE db a A c c ess Gro up, A p pellees. BA P N o . W W -18-1259-BK uF Bk. N o . 2:16-b k-13155-TWD A dv. N o . 2:17-ap-01025-TWD

OPINION

Sub m itted W itho ut O ral A rgum ent o n May 23, 2019

Filed – June 26, 2019 A ppeal fro m the U nited States Bankruptcy C o urt fo r the W estern Distric t o f W ashingto n Ho no r ab le Tim o thy W . Do r e, Bankruptcy Judge, PresidingA ppearanc es: A p pellant Paul Hurley pro se o n b rief; A nnette L. Hayes and Po o ja Faldu Davé o n b rief fo r A ppellee the U nited States o f A m eric a; Jo seph W ard Mc Into sh o f Mc C a rthy & Ho lthus, LLP on b rief fo r A p pellee A c c esslex Institute db a A c c ess Gro up.
Befo r e: BRA N D, KU RTZ and FA R IS, Bankruptcy Judges. BRA N D, Bankruptcy Judge: INT ROD U CT I ON A ppellant Paul Hurley appeals a summ ary judgm ent o rder in favo r
o f the U nited States and A c c esslex Institute, db a A c c ess Gro up (to gether, "Defendants"). The b ankruptcy c o urt determ ined that, given Hurley's legal b ac kgro und and the nature o f his c rim inal c o nduc t, he was unab le to estab lish go o d faith under Brunner 1 and therefo re was no t entitled to a hardship discharge o f his student lo ans under § 523(a)(8). 2 W e A FFIRM.

1 Brunner v. N.Y. State Higher Educ. Servs. Corp. (In re Brunner) , 46 B.R. 752, 756 (S .D.N.Y. 1985), aff'd, 831 F.2d 395, 396 (2d Ci r. 1987) (adopted by thi s ci r cui t in United Student Aid Funds, Inc. v. Pena (In re Pena) , 155 F.3d 1108, 1111-12 (9th Ci r. 1998)).

2 Unless specifi ed other w i se, all chapterand secti on r efer ences ar e to the Bankr uptcy Code, 11 U.S

. C. §§ 101-1532, all "Rule" r efer ences ar e to the Feder al Rules of Bankr uptcy Pr ocedur e, and all "Ci v i l Rule" r efer ences ar e to the Feder al Rules of Ci v i l Pr ocedur e. 2I. FA CT U A L BA CK GROU N D A N D PROCE D U RA L HIST ORY

A . Prepetition ev e nts Hurley rec eived his law degree in 2004 and his L.L.M. in tax in 2006. He rec eived federal and private student lo ans to fund his legal educ atio n and b ar exam inatio n c o sts. Hurley was admitted to prac tic e law in the state
o f W ashingto n in N o vemb er 2006 b ut changed his lic ense to inac tive status in January 2010. Hurley has m ade paym ents o n b o th his federal and private student lo ans. He c o nso lidated his federal student lo ans in 2010 and entered intoan Inc o m e Based Repaym ent Plan. He has alsob een diligent in his effo rts to
ob tain deferm ents and fo rb earanc es. Hurley was no t in default o n his student lo ans at the tim e he filed fo r b a nkruptc y. In June 2009, Hurley was hired as a revenue agent fo r the Internal R evenue Servic e. Hurley c o nduc ted audits o f taxpayers' federal tax returns. In July 2015, Hurley b egan auditing the 2013 and 2014 tax returns fo r Have a Heart C o m p a ssio n C are, Inc ., a m edic a l m arijuana dispensary. 3 Hurley m et with Ryan Ku nkle, the representative fo r Have a Heart, o n several o c c a sio ns to discuss the tax returns. A fter the m en had c o m pleted

3 The Uni ted S tates alleged i n Hur ley's cr i minal case that, j ust days befor e he began hi s audi t of Hav e a Hear t, Hur ley had r ecei v ed a letter fr om hi s super i or stati ng that the IRS was pr oposi ng to ter minate hi m or other wi se di sci p line hi m based on hi s unauthor i zed access of taxpayer data on thr ee occasi ons in2014 and hi s lack of candor in the inv esti gati on of hi s unauthor i zed access. 3the audit pro c ess and signed the nec essary fo rm s, they went o utside to

have a discussio n "o ff the rec o rd." A s part o f that discussio n, Hurley to ld Kunkle that he had saved Have a Heart o ver $1 m illio n in taxes. Hurley then so lic ited a b rib e o f $20,000 fro mKunkle, which Hurley stated he needed to help pay his student lo an deb t. Fearing that Hurley wo u ld no t present the signed audit do cum ents to his superio rs to c o m plete the m atter, Kunkle agreed to m ake the paym ent. Ku nkle im m ediately repo rted the inc ident to law enfo rc em ent, who arrested Hurley after Hurley was
rec o r ded ac c epting two c ash paym ents o f $5,000 and $15,000 fromKunkle. Sub s equently, Hurley resigned fro mthe IR S, and he was indic ted fo r federal o ffenses in c o nnec tio n with this c o nduc t. O n May 13, 2016, Hurley was co nvic t ed fo r the c rim es o f R ec eiving a Brib e b y a Pub licO ffic ial and Rec eiving an Illegal Gratuity b y a Pub lic O ffic ial, b o th felo nies. He was sentenc ed to thirty m o nths' im priso nm ent and three years' supervised release. Fo llo wing his c o nvic tio n, Hurley was disb arred fro mthe prac tic e o f law b y o rder o f the W ashingto n Suprem e C o urt. Hurley was released fro mpriso n in June 2018 and is living in a halfway ho use in Seattle. B. Pos tpetition ev ents Hurley filed a chapter 7 b ankruptcy c ase o ne m o nth after his
c o nvic tio n. His deb ts c o nsist alm o st entirely o f his student lo an deb t. Hurley represented that, as o f the petitio n date, his student lo an deb t

4to t aled appro xim ately $256,000. Hurley was granted a disc harge o n Septemb er 14, 2016. 1. Hurley' s § 523(a)(8) c om plaint In Feb ruary 2017 and while inc arc erated, Hurley filed a c o m plaint against Defendants, 4 seeking to discharge his entire student lo an deb t under § 523(a)(8). In suppo rt o f his undue hardship c laim, Hurley no ted his
c o nvic tio n, inc arc eratio n, disb arm ent fro mthe prac tic e o f law, and resulting financ ial c irc um stanc es. Hurley stated that due tohis disb arm ent and felo ny rec o rd, he wo uld b e unab le to return to his fo rm er pro fessio n o r b e em plo yed at the sam e inc o m e level, even if he c o uld find any sub stantive em plo ym ent fo llo wing his release. Therefo re, requiring himto pay his student lo an deb two uld im po se an undue hardship on himand his dependents. A tthe tim e Hurley so ught his hardship discharge, he was 45 years o ld and had a 3-year- o ld so n. Hurley did no t no te any m edic al o r
o ther c o nditio n that prevented him fro mwo rking in the future. 2. D efendants ' m otion for s um m ary judg m ent Defendants m o ved fo r sum m ary judgm ent o n Hurley's c o m plaint ("MSJ"). Spec ific a lly, Defendants argued that Hurley was unab le to satisfy the third pro ng o f the B runnertest: that the deb to rhas m ade go o d faith effo rts to repay the lo ans. Defendants argued that, despite Hurley's prio r

4 Hur ley sued addi ti onal par ti es but they wer e ei ther v oluntar i ly di smi ssed ora default j udgment was enter ed agai nst them. 5effo rts to pay and stay current o n his student lo an deb t, his present

financ ial m isfo rtune was self-im po sed: Hurley willfully engaged in
c rim inal ac t ivity that direc t ly resulted in his current financ ial
c irc u m stanc es. Defendants argued that Hurley's intentio nal, egregio us
c o nduc t o utweighed his prio r repaym ent effo r ts and prevented him fro m estab lishing go o d faith under B runner . In o ppo sitio n, Hurley argued that o ne past b a d ac t sho uld no t b e dispo sitive o f go o d faith under Brunneras Defendants c o ntended. Instead, the c o urt sho uld c o nsider present-tense fac t o rs which indic ate whether o r
no t a deb to rhas reaso nab le c o ntro l o ver his o r her c urrent situatio n that
no w im po ses the undue hardship. Hurley c o ntended that he has no c o ntro l
o ver his c rim inal rec o rd, that he has nolaw lic ense, that he has little pro spec t fo r go o d em plo ym ent, and that he has no savings. His present
c irc u m stanc es were a result o f so c ietal fac to rs preventing a felo n fro mever gaining em plo ym ent at an inc o m e sim ilar to his o r her previo u s
em plo ym ent. Hurley said he had sub m itted m o re than 40 job applic atio ns sinc e his release, which resulted in o nly o ne physic al interview and no job
o ffers. 3. T he bankruptcy c ourt' s rulingon the M SJ A t the MSJ hearing, Hurley's c o unsel agreed with the c o urt that there
were no m aterial fac ts in dispute; the issue was who se interpretatio n o f the go o d-faith pro ng in B runner was the c o rrec t o ne and whether it c o uld b e
6m et o n the fac ts fo r sum m ary judgm ent purpo ses.

A fter hearing argum ent fro mthe parties, the b a nkruptc y c o urt
anno u nc ed its o ral ruling granting the MSJ, finding that the fac ts relevant to the go o d-faith pro ng o f the Brunner test were no t in dispute and that no
reaso nab le trier o f fac tc o u ld find fo r Hurley o n go o d faith. Rec o gnizing that there is no per se rule that past c rim inal c o nduc t defeats go o d faith, the
c o u rt fo und that the c rim inal c o nduc t in this c ase was "very signific ant" and "o u tweigh[ed]" Hurley's earlier, go o d-faith effo rts to repay his student lo ans. Prec isely, the c o urt no ted that: A s a lawyer, the D eb to r had to k n ow that, if he c o m m itted the cr i me th a t he did, he wo uld lo se his ab ility to prac tic e law. A s such, the Deb to r suffers fro m b o th a failu r e to m axim ize his i n come a nd having willfully o r negligently c a u sed his financ ia l c o nditio n. The Deb to r's financ ial c o nditio n is a direc t result o f fac t o rs that w e r e within his reaso nab le c o ntro l. His financ ial c o nditio n wa s self-inflic ted b y his d ec isio n t o c o m m it a c rim e th a t wo uld signific antly im pac t his financ ial situatio n in a very negative way. The Deb to r's situatio n is far m o re egregio us than in so m e o ther c ases within the N inth C irc uit where the deb to r was fo und no t to me et the go o d-faith pro ng fo r failing to m axim ize inc o m e or t o take o ther ac tio n within the deb to r's reaso nab le c o ntro l. Hr'g Tr. (Sept. 7, 2018) 20:1-15. Hurley timely appealed the b ankruptcy c o u rt's later written o rder.

7II. JU RISD I CT ION

The b ankruptcy c o urt had jurisdic tio n under 28 U .S.C . §§ 1334 and 157(b )(2)(I). W e have jurisdic tio n under 28 U .S.C . § 158(b ). 5 III. ISSU E Did the b ankruptcy c o urt err in determ ining that Hurley c o u ld no t estab lish go o d faith under Brunner ?

IV . ST A ND A RD OF RE V IE W W e review de no vo the b ankruptcy c o urt's summ a ry judgm ent ruling. S a l ven v. Ga lli (In re Pass) , 553 B.R . 749, 756 (9th C ir. BA P 2016). W e review de no vo the b ankruptcy c o urt's applic atio n o f the legal standard in determ ining whether a student lo an deb t is dischargeab le as an undue hardship. R ifinov. United S ta tes (In re R ifino ) , 245 F.3d 1083, 1087 (9th C ir. 2001). Whether the deb to r has satisfied each o f the three pro ngs o f the Brunner test, inc luding the go o d-faith pro ng, is a m ixed questio n o f law and fac t requiring de no vo review. R o th v. Educ. Credit M gm t. Co r p. (In re R o th) , 490 B.R . 908, 916 (9th C ir. BA P 2013). W e review the fac tual underpinnings o f the b a nkruptcy c o urt's go o d faith determ inatio n fo r c lear

5 Although the or der on appeal r esolv ed all clai ms again st the r emain ing two defendants — the Uni ted S tates and Accesslex — the bankr uptcy cour t di d not enter a separ ate j u dgment di sposin g of the adv er sar y pr oceeding. The par ti es also hav e not sought entr y of a separ ate j udgment despi te bei n g gi v en the oppor tuni ty to do so. Ther efor e, the separ ate j u dgment r equi r ement underRule 7058 has been waiv ed. See Bankers Tr. Co. v. Mallis , 435 U.S . 381 (1978); Casey v. Albertson's, Inc. , 362 F.3d 1254, 1256 (9th Ci r. 2004). 8erro r, b u t we review de no vo the b ankruptcy c o urt's ultim ate go o d faith

c o nc lusio n. Id. V . D ISCU S SION A . Sum m ary judg m ent s tandards Sum m ary judgm ent sho uld b e granted when there are no genuine issues o f m aterial fac t and when the m o vant is entitled to prevail as a
m atter o f law. C ivil Rule 56(a) (m ade applic ab le in adversary pro c eedings b y Rule 7056). In reso lving a sum m ary judgm ent m o tio n, the c o u rt do es
no t weigh evidenc e, b ut rather determ ines o nly whether a m aterial fac tual dispute rem ains fo r trial. Co vey v. H o llyda le Mo bileho m e Esta tes , 116 F.3d 830, 834 (9th C ir. 1997). Am aterial fac t is o ne that, "under the go verning sub stantive law . . . c o uld affec t the o utc o m e o f the c ase." Ca nevav. S un C m tys. Opera ting Ltd. P'ship (In re Ca neva ) , 550 F.3d 755, 760 (9th Cir. 2008). "Agenuine issue o f m a terial fac t exists when 'the evidenc e is such that a
reaso nab le jury c o uld return a verdic t fo r the no nm o ving party.'" Id. at 761 (quo ting Anderso n v. Liberty Lo bby, Inc. , 477 U .S. 242, 248 (1986)). A t the hearing o n the MSJ, Hurley's c o unsel c o nc eded that there were
no m aterial fac ts in dispute and that a trial would no t pro duc e any different testim o ny than the parties had already presented. Thus, neither party disputed the b ankruptcy c o urt's ab ility to reso lve this m atter o n
sum m ary judgm ent.

9B. T he bankruptcy c ourt did not err in determ iningthat Hurley c ould

not es tablis h g ood faith under B runne r and thusdid not err in g ranting the M SJ
. Generally, student lo an ob ligatio ns are presum ed to b e exc epted fro m a deb to r 's discharge under § 727, unless repaying tho se lo ans wo uld "im po se an undue hardship on the deb to r and the deb to r's dependents." § 523(a)(8). 6 In Pena, 155 F.3d at 1111-12, the Ninth C irc u it ado pted the three-pro nged test set fo rth in Brunner , to determ ine whether the undue hardship standard has b een m et. The b urden o f pro ving undue hardship is
o n the deb to r, and the deb to r m ust pro ve all three elem ents b efo re discharge c a n b e granted. In re R ifino, 245 F.3d at 1087-88. If the deb t o r do es
no t satisfy any o ne o f these requirem ents, the b ankruptcy c o urt's inquiry
m ust end there, with a finding o f no dischargeab ility. Id. at 1088. The issue here is whether the b a nkruptc y c o urt erred in reaching its

6 S ecti on 523(a)(8) pr ov i d es, in r elev a nt par t, that a di schar ge under § 727 does not di schar ge an i ndi v i dual debtor fr om any debt for : an educati onal benefi t ov er payment or loan made, insur ed, or guar anteed by a gov er nmental uni t, or made underany pr ogr am funded in whole or in par t by a gov er nmental uni t or nonpr ofi t i n sti tuti on, or an obli gati on to r epay funds r ecei v ed as an educati onal benefi t, scholar shi p , or sti pend, or any other educati onal loan that i s a quali fi ed educati on loan . . . i n cur r ed by a debtor who i s an indi v i dual[,] . . . unless excepting such debt fr om di s char ge under thi s par agr aph would i mpose an undue har d s hi p on the debtor and the debtor ’s dependents. It i s undi sputed that the student loans at i ssue ar e of the ki nd whi ch § 523(a)(8) gener ally excepts fr om di s char ge. 10c o nc lusio n o n the third Brunner pro ng: whether the deb to r m ade "go o d

faith effo rts to repay the lo ans." In re Pena, 155 F.3d at 1111; In re Brunner , 831 F.2d at 396. 7"Go o d faith is m easured b y the deb to r's effo rts to ob tain
em plo ym ent, m a xim ize inc o m e, and m inim ize expenses." In re R o th , 490 B.R . at 917 (quo ting E duc. Credit M gm t. Co rp. v. Ma so n (In re Ma so n) , 464 F.3d 878, 884 (9th C ir. 2006)); Pa . Higher Educ. Assista nce Agency v. Birra ne (In re Birra ne) , 287 B.R . 490, 499 (9th C ir. BA P2002). This Panel has assem

b led the fo llo wing list o f fac t o rs c o urts have
c o nsidered in m aking a go o d faith determ inatio n: (1) whether the deb to r has m ade any paym ents o n the lo an prio r to filing fo r d ischarge, altho ugh a histo ry o f m aking o r no t m aking paym ents is, b y itself, no t dispo s itive; (2) whether the deb to r has so ught deferm ents o r fo rb earanc es; (3) the tim ing o f the deb t o r's attem pt to have the lo an discharged; and (4) whether the d eb t o r's f i n a nc ial c o nditio n resulted fro m fac to r s b eyo nd her reaso nab l e c o ntro l, a s a d eb to r m ay no t w i l l fully o r negligently c a u se her o wn default. In re R o th , 490 B.R
. at 917 (c itatio ns and internal quo tatio n m arks o m itted). S ee a lso In re Brunner

, 46 B.R . at 756 (deb to r m ust m ake an effo r t to repay the lo ans o r sho w "that the fo rc es preventing repaym ent are truly b eyo nd

7Under B runner/Pena , the debtor must also establi sh: (1) that she cannot maintain, based on cur r ent income and expenses, a mini mal standar d of li v ing for her self and herdependents i f for ced to r epay the loans; and (2) that addi ti onal ci rcumstances exi st indi cating that thi s state of affai rs i s li kely to per si st for a si gni fi cant por ti on of the r epayment per i od of the student loans. In re Pena , 155 F.3d at 1111; In re Brunner, 831 F.2d at 396. 11his o r her reaso nab le c o ntro l"). While also no t dispo sitive, ano ther

im po rtant "go o d faith" fac to r fo cuses upo n the deb to r 's effo rts to nego tiate a repaym ent plan. In re R o th , 490 B.R . at 917 (c iting In re Birra ne, 287 B.R . at 499 and Educ. Credit M

gm t. Co rp. v. Jo rgensen (In re Jo rgensen) , 479 B.R . 79, 89 & n.4 (9th C ir. BA P 2012)). Hurley did m any things that a deb to r sho uld do to estab lish go o d faith: he c o nsistently m ade paym ents o n his student lo ans prio r to his b ankruptcy filing; he so ught fo rb earanc e and hardship deferm ents prio r to and during his inc arc eratio n; he enro lled in an Inc o m e Based Repaym ent Pro gram ; and he has b een diligent in his jo b hunting effo rts sinc e his release fro mpriso n. Despite his effo rts, ho wever, the b ankruptcy c o u rt
reaso ned that Hurley's financ ial c o nditio n was a result o f fac to rs within his
reaso nab le c o ntro l. His current c o nditio n was self-inflic ted b y his willful,
c rim inal c o nduc t, and this o u tweighed his earlier go o d-faith effo rts o f repaym ent. W e agree that the c o urt c o uld c o nsider Hurley's past c r im inal
c o nduc t in the go o d faith analysis. O ther c o urts have c o nc luded that a deb to r ' s future em plo ym ent lim itatio ns o r lac k o f earning po tential c aused b y the deb to r's cho ic e to engage in c rim inal c o nduc t and sub s equent inc arc eratio n were no t fac to rs b eyo nd the deb to r's reaso nab le c o ntro l, and that such fac to rs c an prec lude a finding o f go o d faith under Brunner
. S ee Chena ult v. Grea t La kes Higher Educ. C o rp. (In re Chena ult) , 586 B.R . 414, 421

12(6th C ir. BA P 2018) (deb to r's past c rim inal rec o rd affec ting his ab ility to

find adequate future em plo ym ent was a c o nditio n o f his o wn m aking and
wo uld no t satisfy the sec o nd and third pro ngs o f the Brunnertest); W a tso n v. S a llie Ma e (In re W

a tso n) , N o . 11-5138, 2012 WL 5360949, at *2-3 (Bankr. D. K an. O c t. 30, 2012) (c o nc luding that deb to r's inab ility to repay student lo ans due tohis felo ny rec o r d and resulting inc arc eratio n were fac to rs within his reaso nab le c o ntro l and defeated go o d faith; these fac to rs also defeated the sec o nd pro ng o f the Brunner test); Lo o per v. U.S . D ep't o f Educ. (In re Lo oper) , N o . 06-3042, 2007 WL 1231700, at *7-8 (Bankr. E.D. Tenn. A pr. 25, 2007) (ho lding sam e; undue hardship discharge request denied). But see K o l l v. U.S . D ep't o

f Educ. (In re K

o ll) , N o . 01-8068, 2002 WL 32001509, at *5 (Bankr. C

. D. Ill. May 3, 2002) (refusing toado pt a b right-line test that prec ludes deb to rs with a c rim inal c o nvic tio n fro mob taining an undue hardship discharge when o therwise warranted). Hurley argues that his c rim inal c o nvic tio n sho uld no t serve as a "c atego ric al b a r" to a finding fo r go o d faith under Brunner . A ltho ugh still
an o pen questio n in this c irc uit, we wo uld no t endo rse a b right-line rule that a deb t o r with a c rim inal past c an never estab lish go o d faith. Ho wever, we do no t think that the b ankruptcy c o urt soheld. Based o n the fac ts, the
c o u rt sim ply c o nc luded that Hurley's willful c rim inal b ehavio r tipped the b alanc e against go o d faith. While this m ay b e a c lo se c a ll given Hurley's signific ant go o d -faith effo rts to repay, we are no t ab le to c o nc lude that the

13b ankruptcy c o urt erred. Hurley is a highly educ ated and c apab le perso n.

Mo re im po rtantly, he was a lic ensed atto rney, who knew o r had to kno w that his c o nduc t c o uld result no t o nly in a c r im inal c o nvic tio n b ut alsothe lo ss o f his lic ense to prac tic e law, and that this would negatively affec t his financ ial situatio n. Further, Hurley relied entirely o n his c o nvic tio n, inc arc eratio n, disb arm ent and felo ny rec o rd as the b asis fo r an undue hardship discharge. He did no t c ite any m edic al o r o ther c o nditio n — so m ething b eyo nd his reaso nab le c o ntro l — that was a c o ntrib uting fac to r fo r his inab ility to find adequate em plo ym ent and repay his student lo ans. S ee H a rvey v. Educ. Credit M

gm t. Co rp. (In re H

a rvey) , N o .11–1958, 2013 WL 4478926, at *4 (Bankr. D. C o lo . A ug. 20, 2013) (c o -deb to r wife's m edic al
c o nditio n, no t her prio r felo ny c o nvic tio n, prevented her fro mseeking
em plo ym ent to repay student lo ans). 8 The tim ing o f Hurley's request alsoweighs against go o d faith. S ee In re R o th , 490 B.R . at 917 (tim ing o f deb to r's attem pt to have lo a n discharged
c an b e c o nsidered in go o d faith analysis). He was still inc arc erated at the tim e, as were the deb t o rs in W a tso n and Lo op er

, who were also denied an undue hardship discharge. S ee a lso In re H a rvey , 2013 WL 4478926, at *4

8 To the extent Hur l ey ar gues that the good-fai th pr ong of the Brunnertest has been inappr opr i ately expanded to i nclude consi der ati on of a debtor 's past bad conduct, we ar e bound by our ci r cui t's adopti on of Brunnerand the factor s that a cour t may consi der for deter mining undue har dshi p, including a debtor 's past acts, good or bad.

14(distinguishing W a tso n and Lo o per

b ec ause c o -deb to r wife was seeking undue hardship discharge no t while inc arc erated b ut so m etim e afterwards). Therefo re, while his job pro spec ts appear b leak no w, that m ay
change in the future. He still has nearly twenty years to wo rk b efo re retiring. Thus, his request fo r a hardship discharge under § 523(a)(8) seem s prem ature. Hurley also argues that the b ankruptcy c o u rt erred when it determ ined that he failed to m axim ize his inc o m e b y lo sing his ab ility to prac tic e law c o nsidering that he had an inac tive b ar lic ense sinc e 2010. W e disagree. Hurley spec ific ally relied o n his inab ility to prac tic e law to estab lish go o d faith under Brunnerin his b r iefing b efo re the b ankruptcy c o u rt. Furtherm o re, Hurley presum ab ly put his lic ense o n inac tive status in 2010 o nly b ec ause he did no t need an ac tive lic ense during his em plo ym ent with the IR S. In any c ase, even an inac tive law lic ense gave Hurley an advantage o ver o ther applic ants fo r m any job s and likely c o uld have suppo rted a higher salary. That advantage is no w go ne so lely b ec ause o f his willful c o nduc t. Therefo re, the c o urt did no t err in determ ining that Hurley failed to m axim ize his inc o m e b y lo sing his law lic ense. Finally, Hurley argues that the b ankruptcy c o urt erred b y no t
c o nsidering that he had b een enro lled in an Inc o m e Based Repaym ent Pro gram . The c o urt explic itly c o nsidered this fac t. It sim ply c o nc luded that, given all o f the fac to r s estab lishing go o d faith, Hurley c o uld no t m eet his

15b urden o f pro o f and that no m aterial fac tual dispute rem ained fo r trial. V I. CONCL U S ION Bec ause Hurley was unab le to estab lish go o d faith under B runnerfo r an undue hardship discharge o f his student lo ans under § 523(a)(8), the b ankruptcy c o urt did no terr in granting Defendants sum m ary judgm ent. A c c o rdingly, we A FFIRM.

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