* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 3 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re: CURTIS WESLEY GARRETT;

JANET LAVERNE GARRETT,

Debtors.

______________________________

CURTIS WESLEY GARRETT;

JANET LAVERNE GARRETT,

Plaintiffs-Appellants,

v.

NEBRASKA HIGHER EDUCATION

LOAN PROGRAM, INC.,

Defendant-Appellee.

No. 02-6304

(BAP No. WO-02-27)

(BAP)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral
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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 

Curtis Wesley and Janet Laverne Garrett (Debtors) appeal from the decision

of the Bankruptcy Appellate Panel (BAP) holding that the bankruptcy court

properly denied them a discharge of their student loan debts because they failed to

satisfy the “undue hardship” exception under 11 U.S.C. § 523(a)(8). We exercise

jurisdiction pursuant to 28 U.S.C. § 158(d) and affirm.

The BAP opinion fully sets out the relevant facts and issues raised in this

appeal and we need not repeat them here. “In our review of BAP decisions, we

independently review the bankruptcy court decision.” In re Albrecht , 233 F.3d

1258, 1260 (10th Cir. 2000). We apply a de novo standard of review to its

conclusions of law. Id.; In re Woodcock , 45 F. 3d 363, 367 (10th Cir. 1995)

(noting that we review de novo the question whether loans are dischargeable

under the undue hardship exception). But the issue raised here challenges the

bankruptcy court’s findings as to the Debtors’ circumstances. “Unless the

bankruptcy court’s findings of fact are clearly erroneous, we must embrace them.” 

Turney v. FDIC , 18 F.3d 865, 868 (10th Cir. 1994).

The parties did not question the applicable law below. Debtors continue to

assert that the bankruptcy court’s factual finding that the Debtors’ monthly

income is sufficient to enable them to maintain a minimal standard of living as
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well as to repay the $44,500 student-loan debt is an abuse of discretion because

some evidence in the record supports their claim that they are not able to maintain

a minimal standard of living and repay the debt. But that assertion does not state

the proper standard of review. As the BAP pointed out, the bankruptcy court’s

finding must be upheld unless it is clearly erroneous. That means that we must

accept the bankruptcy court’s determination unless it is “completely devoid of

minimum evidentiary support displaying some hue of credibility, or [] bears no

rational relationship to the supportive evidentiary data.” Gillman v. Scientific

Res. Prods., Inc. (In re Mama D’Angelo, Inc.) , 55 F.3d 552, 555 (10th Cir. 1995)

(quotations omitted). 

We have carefully considered the record, the applicable law, and the

arguments of the parties. For substantially the same reasons stated in the BAP

opinion filed August 21, 2002, we conclude that the bankruptcy court’s findings

of fact are not clearly erroneous and that its decision must be upheld. 

The judgment of the United States Bankruptcy Appellate Panel is AFFIRMED.

Entered for the Court

Robert H. Henry 

Circuit Judge