## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 22 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In re: RAYMOND L. WOODCOCK,

Debtor.

RAYMOND L. WOODCOCK,

Plaintiff-Appellant,

v. CHEMICAL BANK; COLUMBIA UNIVERSITY; UNIVERSITY ACCOUNTING SERVICE, as servicing agent for Columbia University, ATTORNEY GENERAL,

Defendants, and NYSHESC, as servicing agent for Chemical Bank,

Defendant-Appellee. No. 97-1374

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 96-K-401)* After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument.

-2- Submitted on the briefs: Raymond L. Woodcock, pro se. Dolores B. Kopel, New York State Higher Education S ervices Corporation, NYSHESC, Denver, Colorado, for Defendant-Appellee.

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

BARRETT , Senior Circuit Judge.

Pursuant to 11 U.S.C. § 523(a)(8)(A), certain educational loans are not dischargeable in bankruptcy until seven years afterthe loan has first become due, “exclusive of any applicable suspension of the repayment period.” See also Woodcock v. Chemical Bank (In re Woodcock), 45 F.3d363, 365 (10th Cir. 1995). The issue presented by this appeal * is whether the creditor’s extension of the repayment period, at the debtor’s request, base d upon the creditor’s mistaken determination that debtor’s loans had not yet becom e due and owing, was an “applicable suspension of the repayment period” exc ludable when calculating § 523(a)(8)(A)’s seven-year nondischargeability per iod. We conclude that it is.-3-

Appellant seeks to discharge three student loans th at he obtained from Chemical Bank to finance his pursuit of law and mas ter of business degrees. Appellee New York State Higher Education Services C orporation (NYSHESC) guaranteed these loans. Appellant graduated from law school in 1982 and bus iness school in January 1983. From 1983 through part of 1990, he e nrolled in several colleges and universities on a part-time basis. During this time, appellant continually requested, and appellee and the lender granted, his requests for deferment of the repayment of his loans, based upon his part-time student status. Because he had not enrolled in a degree program subsequent to his graduation from business school, however, he was no longer matriculated. Th erefore, under the terms of the promissory notes, his loans became due and owin g in October 1983, following a nine-month grace period. See In re Woodcock, 45 F.3d at 366-67. Based upon appellant’s requests, therefore, appellee and the l ender granted appellant deferments to which he was not entitled under the t erms of the promissory notes. See id. at 365-67. Appellant filed for Chapter 7 bankruptcy relief on April 21, 1992, more than seven years after his loans first became due. This debt, therefore, is dischargeable unless there was an “applicable suspe nsion of the repayment period” under § 523(a)(8)(A). The bankruptcy courtgranted appellee summary-4-

judgment, determining that the extension of the rep ayment period, although mistaken, was nevertheless, an “applicable suspensi on” tolling the running of § 523(a)(8)(A)’s seven-year period of nondischargeability. The district court affirmed. See Woodcock v. Chemical Bank (In re Woo dcock), 212 B.R. 658 (D. Colo. 1997). Appellant appeals. In reviewing the district court’s decision affirmin g the bankruptcy court’s determination, this court will apply the same stand ards of review employed by the district court. See Tulsa Energy, Inc. v. KPL Prod . Co. (In re Tulsa Energy, Inc.), 111 F.3d 88, 89 (10th Cir. 1997). We, therefore, r eview de novo the bankruptcy court’s decision granting appellee summary judgment . See American Bank & Trust Co. v. Jardine Ins. Servs. Tex., Inc. (In re Barton Indus., Inc.), 104 F.3d 1241, 1245 (10th Cir. 1997). Appellant argues that, because he was not entitled to the deferments he requested and received, they are not “applicable su spension[s]” excludable under § 523(a)(8)(A). We disagree. The plain language o f the statute is not as narrow as appellant asserts. See Huber v. Marine Midland Bank, N.A. (In re Huber), 169 B.R. 82, 83-84, 86-87 (Bankr. W.D.N.Y. 1994). See generally Flynn v. New Hampshire Higher Educ. Assistance Found. (In re Flynn), 190 B.R. 139, 142 (Bankr. D.N.H. 1995) (rejecting argument that § 523 (a)(8)(A)’s reference to “applicable suspension” incorporates provisions of regulations and statutes-5-

governing guaranteed student loans). Interpreting § 523(a)(8)(A) broadly, see Virginia v. Gibson (In re Gibson), 184 B.R. 716 , 718 (E.D.Va. 1995) (citing cases), aff’d, 86 F.3d 1150 (4th Cir. 1996) (Table) , the plain meaning of the phrase “suspension of the repayment period” refers to an extension of the term of the loan by granting a period of time during whi ch the debtor is not obligated to make payments. See In re Huber, 169 B.R. at 84; see also Shryock v. Pittsburg State Univ. (In re Shryock), 102 B.R. 217, 219 (Ban kr. D. Kan. 1989) (broadly interpreting the term “suspension,” under prior ver sion of § 523(a)(8)(A) that provided five-year period of nondischargeability, a s including “any time the original repayment period is set aside either by ce ssation of payments or modification of payments”). Section 523(a)(8)(A)’s legislative history supports this interpretation. See In re Huber, 169 B.R. at 84. In drafting this statute, Congress sought to insure that a debtor not be able to manipulate defe rments in order to defeat the period of nondischargeability. See Williams v. Uni ted States Dep’t of Educ. (In re Williams), 195 B.R. 644, 647 (Bankr. N.D. Te x. 1996). Congress did not intend to allow student loans to be discharged in b ankruptcy without some effort on the debtor’s part to repay those loans. See id. at 646-47; see also Law v. The Educational Resources Inst., Inc. (In re Law), 159 B.R. 287, 291 (Bankr. D.S.D.-6-

1993) (noting strong policy against permitting debt ors to escape repayment of student loans underlies § 523(a)(8)(A)).

The only cases in which courts have found that a ce ssation of payments was not an “applicable suspension” are cas es involving unilateral action by the lender. The rationale beh ind this exception is that the borrower should not be penalized for the l ender’s extension of the payment period, when the borrower did not re quest such an extension. In re Gibson, 184 B.R. at 719 (citing cases, which have been omitted here). There is no question in this case, however, that the exte nsion of the repayment period was the result of appellant’s requests. See In re Huber, 169 B.R. at 86-87 and 87 n. 11 (discussing importance of fact that debtor re quested deferment to which he was not entitled). Further, appellant has not show n that appellee, in granting the requested extensions, acted in bad faith. See id. at 87. Therefore, the period of time during which appellee and the lender granted appellant’s requests for deferment, based upon his status as a part-time student, is an “applicable suspension of the repayment perio d” excludable under § 523(a)(8)(A), even though appellant was not entit led to such a deferment pursuant to the terms of the promissory notes. See In re Huber, 169 B.R. at 83, 86-87. In light of this, the student loans at issu e had not first become due more than seven years prior to appellant’s filing for bankruptcy relief. These debts, accordingly, are not dischargeable under § 523(a)(8 )(A).-7-

Appellant’s remaining procedural arguments lack mer it. We, therefore, AFFIRM the judgment of the United States District C ourt for the District of Colorado. We DENY appellant’s requests for an award of attorney fees and costs, and for reimbursement of his filing fees

.