20-757-bk 

Tingling v. Educ. Credit Mgmt. Corp.

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2020

No. 20-757-bk

In re Janet Tingling,

Debtor.

JANET TINGLING,

Debtor-Appellant,

v.

EDUCATIONAL CREDIT MANAGEMENT CORPORATION, UNITED STATES 

DEPARTMENT OF EDUCATION, AMERICAN EDUCATION SERVICES, GREAT 

LAKES EDUCATIONAL LOAN SERVICES, INC., NELNET INC.,

Defendants-Appellees,

NAVIENT CORPORATION,

Defendant.
2

On Appeal from the United States District Court

for the Eastern District of New York

ARGUED: MARCH 2, 2021

DECIDED: MARCH 11, 2021

Before: CABRANES, RAGGI, and SULLIVAN, Circuit Judges.

Debtor-Appellant Janet Tingling (“Tingling”) appeals from a 

judgment of the United States District Court for the Eastern District of 

New York (Joanna Seybert, Judge), affirming an order of the United 

States Bankruptcy Court for the Eastern District of New York (Alan S. 

Trust, Bankruptcy Judge) denying Tingling’s request to discharge her 

educational loans pursuant to 11 U.S.C. § 523(a)(8). Two questions are 

presented on this appeal: (1) whether the Bankruptcy Court abused its 

discretion when it based its Pretrial Order on a joint pretrial 

memorandum, which was agreed to and approved by all parties on 

July 31, 2018; and (2) whether Tingling established that she would face 

an “undue hardship” if her student loans were not discharged. 

We hold that the Bankruptcy Court did not abuse its discretion 

in basing its Pretrial Order on the joint pretrial memorandum edited 

by both parties. Further, it was not an abuse of discretion to disallow 

Tingling from unilaterally modifying that joint pretrial memorandum, 

as the interests of justice in this case did not so require. Lastly, we hold 

that Tingling failed to make the factual showing to establish “undue 

hardship” under Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 

F.2d 395, 396 (2d Cir. 1987), as would be required to discharge her 
3

educational loans. Accordingly, we AFFIRM the District Court’s 

judgment. 

JONATHAN A. ROSENBERG, Jonathan 

Rosenberg, PLLC, Brooklyn, NY., for 

Debtor-Appellant Janet Tingling.

MICHAEL E. KREUN (Kenneth L. Baum, on the 

brief), Hackensack, NJ, for DefendantAppellee Educational Credit Management 

Corp.

MARY M. DICKMAN, Assistant United States 

Attorney (Varuni Nelson, Assistant United 

States Attorney, on the brief), Eastern District 

of New York, Brooklyn, NY, for DefendantAppellee United States Department of 

Education.

JOSÉ A. CABRANES, Circuit Judge:

Debtor-Appellant Janet Tingling (“Tingling”) appeals from a 

January 31, 2020 judgment of the United States District Court for the 

Eastern District of New York (Joanna Seybert, Judge), affirming an 

order of the United States Bankruptcy Court for the Eastern District of 

New York (Alan S. Trust, Bankruptcy Judge), denying Tingling’s 

request to discharge her educational loans pursuant to 11 U.S.C. 

§ 523(a)(8). Two questions are presented on this appeal: (1) whether 

the Bankruptcy Court abused its discretion when it based its Pretrial 

Order on the joint pretrial memorandum, which was agreed to and 

approved by all parties on July 31, 2018; and (2) whether Tingling
4

established that she would face an “undue hardship” if her student 

loans were not discharged. 

We hold that the Bankruptcy Court did not abuse its discretion 

in basing its Pretrial Order on the joint pretrial memorandum dated 

July 31, 2018. Nor was it an abuse of discretion for the Bankruptcy 

Court to not permit Tingling to unilaterally modify that joint pretrial 

memorandum, as the interests of justice in this case did not so require.

Lastly, we hold that Tingling failed to make the factual showing to 

establish “undue hardship” under Brunner v. N.Y. State Higher Educ. 

Servs. Corp., 831 F.2d 395, 396 (2d Cir. 1987), as would be required to 

discharge her educational loans. Accordingly, we AFFIRM the District 

Court’s judgment.

I. BACKGROUND

In August 2016, Tingling sought relief from her student debt by 

filing a complaint against student loan holder United States 

Department of Education (“DOE”) and others.1 On consent of the 

parties, the Bankruptcy Court granted the motion of Educational 

Credit Management Corporation (“ECMC”) to intervene as the 

assignee of eight of the loans. On April 15, 2019, the Bankruptcy Court

entered a final judgment, holding that Tingling’s student loans were 

nondischargeable and that Tingling had failed to prove undue 

hardship.2 Tingling appealed to the District Court, which affirmed the 

Bankruptcy Court’s judgment on January 31, 2020. The District Court 

further held that the Bankruptcy Court did not abuse its discretion 

when it adopted the July 31, 2018 joint pretrial memorandum as the 

1 Tingling was originally represented by counsel but requested that her 

attorney be removed from her suit in February 2017. She then proceeded pro se for 

the rest of the adversary proceeding before the Bankruptcy Court. 

2 See 11 U.S.C. § 523(a)(8).
5

basis for its Pretrial Order and declined to incorporate Tingling’s later 

unilateral revisions.3

II. DISCUSSION

The District Court operated as an appellate court in its review of 

the Bankruptcy Court’s judgment, and we too, in turn, engage in 

plenary, or de novo, review of the District Court’s decision.4 We thus 

apply the same standard of review that the District Court employed, 

reviewing “the bankruptcy court’s findings of fact for clear error and 

its legal determinations de novo.”5 But we review the discretionary 

rulings of a bankruptcy court, including its determination that certain 

facts or issues must be excluded from trial on the basis of a pretrial 

order, for abuse of discretion.6

3 Tingling v. U.S. Dep’t of Educ., 611 B.R. 710, 722 (E.D.N.Y. 2020).

4 In re Anderson, 884 F.3d 382, 387 (2d Cir. 2018); see also In re Manville Forest 

Prods. Corp., 896 F.2d 1384, 1388 (2d Cir. 1990).

5 Anderson, 884 F.3d at 387 (citing In re U.S. Lines, Inc., 197 F.3d 631, 640–41 

(2d Cir. 1999)). In addition, we are “free to affirm an appealed decision on any 

ground which finds support in the record, regardless of the ground upon which the 

trial court relied.” McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (internal 

quotation marks omitted).

6 In re Dana Corp., 574 F.3d 129, 145 (2d Cir. 2009); see United States v. Park, 

758 F.3d 193, 199–200 (2d Cir. 2014) (explaining that “abuse of discretion” is a 

“distinctive term of art that is not meant as a derogatory statement about the district 

judge whose decision is found wanting.”); Clark v. Pennsylvania R.R. Co., 328 F.2d 

591, 594 (2d Cir. 1964) (“[A] ruling amending the pre-trial order or permitting a 

departure by any party from his pre-trial statement may be reviewed for abuse of 

discretion.”); Madison Consultants v. Fed. Deposit Ins. Corp., 710 F.2d 57, 62 n.3 (2d 

Cir. 1983) (“[P]ermission to amend a pretrial order is to be granted when ‘the 

interests of justice make such a course desirable.’” (quoting Clark, 328 F.2d at 594));

Laguna v. Am. Exp. Isbrandtsen Lines, Inc., 439 F.2d 97, 101–02 (2d Cir. 1971)).
6

On appeal Tingling argues that she was deprived of due process 

because the Bankruptcy Court accepted the joint pretrial 

memorandum as agreed to and approved by all parties on July 31, 2018 

and ultimately adopted it as the Bankruptcy Court’s Pretrial Order, 

while declining to adopt other versions of the pretrial memorandum 

submitted unilaterally by Tingling in the interim.

We do not agree. On July 31, 2018, after the parties failed to 

comply with an order of the Bankruptcy Court requiring them to 

together submit a joint pretrial memorandum in advance of a pretrial 

conference, the Bankruptcy Court directed the parties to confer in an 

adjoining conference room and to submit a single, joint pretrial 

memorandum. From that conference came the hand-marked joint 

pretrial memorandum here at issue, identifying stipulated facts and 

matters disputed by Tingling. The Bankruptcy Court found the handmarked joint pretrial memorandum acceptable and directed that it be 

docketed, and that the parties submit a “clean” version. App’x 65. But

Tingling subsequently filed additional “joint” pretrial memoranda. 

Nevertheless, the Bankruptcy Court’s Pretrial Order ultimately 

adopted the “clean” version of the hand-marked joint pretrial 

memorandum agreed to and approved by the parties on July 31, 2018.7

In challenging the Bankruptcy Court’s decision, Tingling argues 

that she was coerced into stipulating to material facts in the markedup joint pretrial memorandum of July 31, 2018, including (1) ECMC’s 

standing to sue, (2) lack of medical issues relevant to her hardship 

claims, and (3) accuracy of loan amounts. 

7 A pretrial order “supersede[s] all prior pleadings and control[s] the 

subsequent course of the action.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 

474 (2007) (internal quotation marks and citations omitted) (quoting Fed. R. Civ. P. 

16(e), applicable to the Bankruptcy Court through Fed. R. Bankr. P. 7016). 
7

After reviewing the record, we agree with the District Court that 

the Bankruptcy Court did not abuse its discretion in adopting the joint 

pretrial memorandum of July 31, 2018 as the basis of the Bankruptcy 

Court’s Pretrial Order.8 Nor did the Bankruptcy Court abuse its 

discretion in precluding Tingling’s later unilaterally revised versions.

It is well established that “[t]he agreements and stipulations 

made at th[e] final [pretrial] conference will control the trial.”9 Further, 

“[t]he decision to permit amendment of the proposed joint pretrial 

order rests within the discretion of the Court and should be granted 

when ‘the interests of justice make such a course desirable.’”10 While 

the Bankruptcy Court need not “view[] such modification with 

hostility,” its determination should balance “the need for doing justice 

on the merits between the parties . . . against the need for maintaining 

orderly and efficient procedural arrangements.”11 We are mindful of 

the difficulties faced by pro se litigants, but in these circumstances, we 

find no “coercion”—much less a violation of due process—in the series 

of hearings held and orders issued by the Bankruptcy Court, which

culminated in its Pretrial Order adopting the joint pretrial 

memorandum agreed to and approved by all parties on July 31, 2018.

Tingling next argues that the Bankruptcy Court erred in its 

application of the so-called Brunner test in considering the 

dischargeability of her education debt. She further submits that the 

8 See Tingling, 611 B.R. at 722.

9 Fed. R. Civ. P. 16, Advisory Committee Notes, 1983 Amendment, 

Subdivision (d).

10 Madison Consultants, 710 F.2d at 62 n.3.

11 Laguna, 439 F.2d at 101–02.
8

Brunner test has, over time, become too high a burden for debtors to 

satisfy. 

We do not agree. “Student loans are presumptively 

nondischargeable in bankruptcy.”12 However, pursuant to 11 U.S.C. 

§ 523(a)(8), a student loan can be discharged if repayment of the debt 

will impose an undue hardship on the debtor and the debtor’s 

dependents.13 Thus, a debtor who claims “undue hardship” to defeat 

the statutory presumption against a student loan discharge must make 

the following specific factual showing by a preponderance of the 

evidence:

(1) that the debtor cannot maintain, based on current 

income and expenses, a “minimal” standard of living for 

herself and her dependents if forced to repay the loans; 

(2) that additional circumstances exist indicating that this 

state of affairs is likely to persist for a significant portion 

of the repayment period of the student loans; and (3) that 

the debtor has made good faith efforts to repay the 

loans.14

12 Easterling v. Collecto, Inc., 692 F.3d 229, 231 (2d Cir. 2012) (citing 11 U.S.C. 

§ 523(a)(8)).

13 See United Student Aid Funds, Inc. v. Espinosa ̧ 559 U.S. 260, 277 & n.13 

(2010) (“Section 523(a)(8) renders student loan debt presumptively 

nondischargeable ‘unless’ a determination of undue hardship is made”); Tennessee 

Student Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004) (noting that “Section 

523(a)(8) is self-executing,” such that “[u]nless the debtor affirmatively secures a 

hardship determination, the discharge order will not include a student loan debt”).

14 Brunner, 831 F.2d at 396; see also Grogan v. Garner, 498 U.S. 279, 291 (1991) 

(holding that “the standard of proof for the dischargeability exceptions in 11 U.S.C. 

§ 523(a) is the ordinary preponderance-of-the-evidence standard”).
9

This so-called Brunner test reflects the Section 523(a)(8) statutory 

scheme exhibiting “clear congressional intent . . . to make the discharge 

of student loans more difficult than that of other nonexcepted 

debt . . . .”15

In this case, the Bankruptcy Court found that Tingling failed to 

satisfy any of the three Brunner prongs. For the reasons explained in 

the District Court’s thorough Memorandum and Order, we agree.

First, the record shows that Tingling’s income (which exceeded federal 

poverty levels) and expenses allow her to make loan repayments while 

maintaining a minimal standard of living. Further, Tingling failed to 

undertake steps to improve her overall financial condition and reduce 

her discretionary expenses.

As for the second Brunner prong, Tingling is of relatively young 

age (52 years old), in good health, possesses two graduate degrees in 

healthcare administration, lacks dependents, and, by all indications, is 

able to maintain her current level of income. Tingling not only 

stipulated in the Pretrial Order that she had no medical or 

psychological disabilities, but she also introduced no corroborating 

evidence into the record that a recently diagnosed tumor affected her 

ability to continue working full-time. 

Finally, turning to the third Brunner prong, Tingling failed to 

avail herself of repayment options available for the ECMC loans and 

put no discernible good faith effort into either negotiating or repaying 

the DOE loans. Specifically, although Tingling was eligible to 

consolidate her loans and enter into one of two available income-based 

repayment programs, Tingling never did so. In addition, Tingling 

received tax refunds totaling an average of over $4,000 each year for 

15 Brunner, 831 F.2d at 396.
10

the years 2014 through 2017, but she put no portion of these refunds 

toward her student debt.

Given the record, it was not error for the Bankruptcy Court to 

conclude that Tingling had not carried her burden to prove by a 

preponderance of the evidence that she satisfied any of the three 

Brunner prongs.

III. CONCLUSION

To summarize, we hold as follows:

(1) The Bankruptcy Court did not err, much less abuse its 

discretion, when it based its Pretrial Order on the joint 

pretrial memorandum agreed to and approved by the parties 

on July 31, 2018 at a pretrial conference held for that purpose.

Further, it was not error, or an abuse of discretion, to 

disallow Tingling’s unilateral modifications of the joint 

pretrial memorandum, inasmuch as the interests of justice in 

this case did not so require. 

(2) Tingling failed to make the factual showing to establish 

“undue hardship” under the Brunner test, as would be 

required to allow the discharge of her educational loans.

For the foregoing reasons, we AFFIRM the District Court’s 

judgment.