UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JENNIFER ALICE COCKELS,

Appellant,

v.

SALLIE MAE,

Appellee.

 /

Case No. 09-10674

Honorable Nancy G. Edmunds

OPINION AND ORDER AFFIRMING BANKRUPTCY JUDGE'S FEBRUARY 10, 2009

ORDER SUPPLEMENTING FINDINGS OF FACT REGARDING DISCHARGE OF

DEBTOR’S STUDENT LOAN OBLIGATION AND DENYING DEBTOR'S MOTION

FOR RECONSIDERATION 

This is an appeal from a February 20, 2009 order issued by the Bankruptcy Court in

a Chapter 7 bankruptcy adversary proceeding brought by Appellant Jennifer Alice Cockels

("Debtor Cockels") against Sallie Mae ("Creditor"). The Bankruptcy Court's order

supplemented findings of fact and denied Debtor's motion asking the Court to reconsider

its earlier order specifying the portion of student loan indebtedness that it found nondischargeable under 11 U.S.C. § 523(a)(8). (Bankr. Ct. Dkt. No. 56.) Earlier, the

Bankruptcy Court had rejected Debtor's argument that § 523(a)(8) did not apply to her

because of her co-signor status and issued an order addressing whether excepting

Debtor's liability as a co-obligor on a student loan debt owed to Sallie Mae would cause

undue hardship, and taking the matter under advisement until it obtained information from

Debtor updating her current monthly income and expenditures. (Bankr. Ct. Dkt. No. 47.)

Upon receipt of the requested information, the Bankruptcy Court issued an order granting

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partial discharge of Debtor's student loan obligation. It determined that $9,500 of the

student loan indebtedness is non-dischargeable pursuant to 11 U.S.C. § 523(a)(8) but all

"principal in excess of $9,500.00 and all other interest, penalties, expenses, attorneys' fees

and other related costs" were dischargeable under § 523(a)(8). (Bankr. Ct. Dkt. No. 54.)

Debtor's appeal raises two issues. First, whether the Bankruptcy Court erred when

it interpreted § 523(a)(8) and held that it applied to unrelated, non-student co-obligors like

Debtor. Second, whether the Bankruptcy Court erred when it made findings of fact based

upon the Debtor's supplemental, updated information concerning her monthly income and

expenses, determined that it would constitute an undue hardship for Debtor to repay the

student loan indebtedness in its original amount and under its original terms, determined

that she did possess the ability to repay a material portion of the indebtedness without

suffering an undue hardship, and specified the portion of the student loan indebtedness it

found non-dischargeable under § 523(a)(8) and the terms for repayment. For the reasons

stated below, this Court concludes that the Bankruptcy Court properly construed §

523(a)(8) of the Bankruptcy Code, did not make findings of fact that were clearly erroneous,

and properly determined that a portion of Debtor's student loan indebtedness was nondischargeable under § 523(a)(8). The Bankruptcy Court's February 10, 2009 order is

AFFIRMED.

I. Jurisdiction

Appellate jurisdiction is conferred on this Court by 11 U.S.C. § 158(a)(1) which states,

"[t]he district courts of the United States shall have jurisdiction to hear appeals (1) from final

judgments, orders, and decrees; . . . of bankruptcy judges entered in cases and

proceedings referred to bankruptcy judges under section 157 of this title. An appeal under

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3

this subsection shall be taken only to the district court for the judicial district in which the

bankruptcy judge is serving." Debtor has timely appealed the Bankruptcy Judge's

February 10, 2009 order denying her motion for reconsideration. See Fed. R. Bankr. P.

8001(a), 8002. 

II. Appellate Standard of Review

This Court reviews the Bankruptcy Court's findings of fact for clear error and its

conclusions of law de novo. Wesbanco Bank Barnesville v. Rafoth (In re Baker & Getty

Fin. Servs., Inc.), 106 F.3d 1255, 1259 (6th Cir. 1997). The first issue raised in Debtor's

appeal presents a question of statutory interpretation and thus presents a question of law

subject to de novo review. See In re Pelkowski, 990 F.2d 737, 739 (3d Cir. 1993). The

second issue Debtor raises presents a mixed question of law and fact. As to the findings

of fact made by the Bankruptcy Court, these are reviewed for clear error. The question

"[w]hether student loans pose an undue hardship is a legal question," however, and thus

subject to de novo review. Oyler v. Educ. Credit Mgmt. Corp. (In re Oyler), 397 F.3d 382,

384 (6th Cir. 2005). "De novo means that the appellate court determines the law

independently of the trial court's determination." Meyers v. IRS (In re Meyers), 216 B.R.

402 (B.A.P. 6th Cir. 1998) (internal quotation marks and citation omitted). "A finding of fact

is clearly erroneous when although there is evidence to support it, the reviewing court on

the entire evidence is left with a definite and firm conviction that a mistake has been

committed." United States v. Mathews (In re Mathews), 209 B.R. 218 (B.A.P. 6th Cir.

1997) (internal quotation marks and citation omitted). 

III. Facts

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Debtor filed a voluntary Chapter 7 bankruptcy petition on April 18, 2007 and received

a discharge of eligible debts on August 9, 2007. Listed on her schedules was a student

loan debt owed to Creditor Sallie Mae. Debtor is liable on this loan as a co-signer. It is

undisputed that the loan was not used for Debtor's education. The co-borrower on the loan

was Cory A. Murawski, who was Debtor's fiancé at the time the loan was obtained in June

of 2004. He used the loan for his education. Debtor and Murawski's relationship

subsequently terminated, Murawski failed to make payments, and Creditor began seeking

payments from Debtor.

On June 25, 2007, Debtor filed an adversary proceeding against Creditor Sallie Mae

seeking to have the student loan debt determined dischargeable, and then moved for

summary judgment, arguing that (1) the debt at issue was outside the coverage of 11

U.S.C. § 523(a)(8), and (2) even if the debt was within § 523(a)(8)'s coverage, it should be

discharged as an undue hardship. On February 6, 2008, after a hearing on Debtor's motion

for summary judgment, the Bankruptcy Court rejected Debtor's coverage argument and

determined that her co-signer status did not take the obligation outside the statute. It also

denied summary judgment on the issue whether the student loan debt should be

discharged as an undue hardship, finding that factual issues remained for trial. (Bankr. Ct.

Doc. No. 47, 9/22/08 Opin. Re: Discharge of Student Loan Oblig. at 1-2.) 

On April 16, 2008, a trial was held. At the time of trial, the student loan balance was

approximately $11,183.40, the repayment term was ten years, and the monthly payments

were $138.57. (Id. at 2.) Plaintiff was a 24 year old, single mother of two young children,

a daughter age one and a son age seven. She was employed as a registered nurse with

the Children's Hospital of Michigan at the Detroit Medical Center. She worked 32 hours a

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week and was considered full-time. She took home approximately $1,464.94 in net pay

every two weeks. Healthcare coverage is provided by her employer with a portion

deducted from her wages. She also received $780 in monthly child support for her son, but

received no support for her daughter. Murawski is the daughter's father, but he has not

provided any assistance, financial or otherwise, for the care of his daughter, and Debtor

has not made any attempt to obtain a child support order against Murawski. (Id. at 2.) 

As to Debtor's future financial situation and her ability to repay the student loan

indebtedness, the Bankruptcy Court observed that she is "employed in the healthcare field,

a rapidly growing area with many attendant opportunities for a registered nurse;" that

"Debtor appears to have solid credentials, including a current position with a respected

institution and a record of academic achievement in her nursing program which includes

a 3.77 grade point average;" and that she is "healthy and has no physical or mental

handicaps." (Id. at 6.) 

As for expenses, the Bankruptcy Court observed that Debtor lived with her two

children in a three-bedroom home in Plymouth, Michigan, with a monthly rent of $1,150,

not including utilities. When she originally moved into the rental home, Debtor had a

roommate with whom she shared the rent and other expenses. That roommate has since

moved out and has not been replaced. (Id. at 3.) Debtor conceded at trial that suitable but

less expensive housing could be found. (4/16/08 Tr. at 71.) The Bankruptcy Court thus

found that Debtor had the potential of reducing her monthly rent payments by about $250.

(9/22/08 Order at 4.) It further observed that if she moved closer to her work, she could

also save on transportation costs by reducing her 80-mile roundtrip work commute. (Id.)

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Finally, the Bankruptcy Court considered whether Debtor had made a good faith effort

to repay the student loan indebtedness for which she had co-signed. It observed that

Debtor is making payments on her own personal loans and has not sought to discharge

them; that "she is, in effect, an accommodation endorser of the loan in question;" and that

"Debtor testified that she did contact Sallie Mae to explore arrangements that might be

made after she learned that Murawski had defaulted." (Id. at 6.) 

In lieu of closing arguments, the Court allowed the parties to submit post-trial briefs.

(Id. at 1.) Accordingly, the Bankruptcy Court took the matter under advisement, issuing an

Opinion Regarding Discharge of Student Loan Obligation on September 22, 2008. In its

Opinion, the Bankruptcy Court found that "[t]he passage of time and the instability of the

economy and the possibility of interim changes since the trial" dictated that Debtor submit

"a sworn statement of her present monthly income by category (gross and net together with

backup documentation), together with a statement of all present continuing monthly

expenditures by category, so that the Court can compare and contrast same with what was

presented at the trial." (Id. at 7.) The Court stated that it would issue a decision after

examining this requested information. (Id.) 

A hearing was held on November 6, 2008, addressing the updated information

provided by Debtor, and the Bankruptcy Court issued an order granting partial discharge

of Debtor's student loan obligation. (Bankr. Ct. Doc. No. 54, 1/27/09 Order.) At the

November 2008 hearing, Debtor testified as follows. Her net monthly income had

increased to $3,643.48, and she had received a $6,502 tax refund for 2007. (11/06/08 Tr.

at 10, 12.) Since the April 2008 trial, she had not made any efforts to obtain child support

from her ex-fiance who was also the co-signer on the student loan indebtedness that she

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sought to have discharged. (Id. at 14.) She had moved to another rental home with a

higher monthly rent, did not search for a rental in lower rent areas like Westland, and still

had no roommate. (Id. at 14-15, 32.) Her transportation and food expenses had increased.

(Id. at 17-19, 30.) She had new credit card debt at Target and was still incurring expenses

for cable and internet. (Id. at 23-24.) 

In its January 27, 2009 order, the Bankruptcy Court applied the Brunner test adopted

by the Sixth Circuit for determining whether a debt creates an undue hardship. See In re

Oyler, 397 F.3d at 385 (adopting the three-prong test announced in Brunner v. New York

State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir. 1987)). It determined that "it

would constitute an undue hardship for Debtor to repay the student loan indebtedness in

its original amount pursuant to its original terms;" that "Debtor possesses the ability to

repay a material portion of the indebtedness without suffering undue hardship;" that $9,500

of the student loan indebtedness is non-dischargeable and shall be repaid at 5% annual

interest within ten years; and that "all principal in excess of $9,500.00 and all other interest,

penalties, expenses, attorneys' fees and other related costs are hereby held to be

dischargeable pursuant to 11 U.S.C. § 523(a)(8)." (Id. at 1-2.) 

Debtor moved for reconsideration of the Bankruptcy Court's partial discharge. In

response, the Court entered an order supplementing its findings of fact, denying Debtor's

motion for reconsideration, and clarifying its January 27, 2009 order. It observed that it had

reviewed Debtor's amended schedules, considered her testimony at the November 6, 2008

hearing, and, based on that information and testimony about her legal fees, Target credit

card balance, cable television bill, transportation and food expenses, and determined that

these expenses no longer exist or can be immediately reduced while maintaining a minimal

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Section 523(a)(8) provides in pertinent part that:

Exceptions to Discharge

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this

title doe not discharge an individual debtor from any debt –

* * *

(8) unless excepting such debt from discharge under this paragraph would

impose an undue hardship on the debtor and the debtor's dependents, for –

(A)(i) an educational benefit overpayment or loan made, insured, or

guaranteed by a governmental unit, or made under any program funded in

whole or in part by a governmental unit or nonprofit institution; . . . .

11 U.S.C. § 523(a)(8)(A)(i). 

8

standard of living. (Bankr. Ct. Doc. No. 56, 2/10/09 Order at 2.) Debtor's motion for

reconsideration was denied because "Debtor is capable of paying approximately $100.00

per month towards the student loan indebtedness while leaving a small cushion in the

monthly budget for any small unexpected expenses which may arise . . . without suffering

undue hardship." (Id. at 2-3.) 

Debtor then filed this timely appeal, and the Bankruptcy Court granted a stay of

execution of its order pending the appeal. 

IV. Analysis

A. Section 523(a)(8) Applies to Non-Student Co-Obligors of Student Loans

Despite Debtor's arguments to the contrary, the Bankruptcy Court did not err as a

matter of law when it interpreted 11 U.S.C. § 523(a)(8) and held that this section applies

to unrelated, non-student co-obligors like Debtor.1

 Although the Sixth Circuit Court of

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Appeals has not specifically addressed this issue, the Bankruptcy Court's decision finds

support in the only decision by a Circuit Court of Appeal addressing the issue and by the

vast majority of recent decisions by the United States District Courts that have also

addressed it. See In re Pelkowski, 990 F.2d 737 (3d Cir. 1993); Hamblin v. Educ. Credit

Mgmt. Corp. (In re Hamblin), 277 B.R. 676, 679-80 (Bankr. S.D. Miss. 2002) (collecting

cases). These courts have interpreted § 523(a)(8) and have held, like the Bankruptcy

Court here, that student loans are excepted from discharge under § 523(a)(8) even though

the debtor is a non-student co-obligor. 

The court in In re Pelkowski addressed and rejected arguments Debtor raises here.

Similar to Debtor Cockels, the debtor in Pelkowski argued that § 523(a)(8) did not apply to

her because she derived no educational benefits from the student loan sought to be

discharged. 990 F.2d at 740. The Pelkowski court found "no support in the statutory

language for any distinction based on the status of the borrower as student or as

beneficiary of the education." Id. at 741. It explained:

Section 523(a)(8) does not refer to a "student debtor" but applies to limit

discharge of any "individual debtor" from "any debt" for a covered educational

loan. In the absence of clearly expressed contrary legislative intent, the statutory

language must be regarded as conclusive.

Id. The Pelkowski court further observed that § 523(a)(8), similar to other subsections of

523(a), "describes a particular kind of debt that is excepted from discharge," not the status

of the obligor. Id. Citing numerous decisions from other federal courts, the Pelkowski court

noted that its "rejection of any limitation of section 523(a)(8) based on the beneficiary of the

loan or the recipient of the education is consistent with the weight of authority." Id. (citing

cases). 

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Next, the Pelkowski court rejected another argument that Debtor raises here --

"because co-makers are not mentioned in section 523(a)(8)," Congress did not intend to

include them "within the statute's ambit." Id. Rejecting the debtor's argument that it should

find ambiguity from the statute's silence about the debtor's status as a non-student coobligor, the Pelkowski court reasoned that "[i]f Congress had intended that section

523(a)(8) not apply to non-student co-makers of educational loan debt, we assume that it

would have so stated." Id. at 742. 

The Pelkowski court also rejected an argument similar to Debtor's alternative

argument here -- that legislative history supports Debtor's position that § 523(a)(8) should

not be read to include non-student co-signers. Id. The debtor in Pelkowski argued that

legislative history addressed the perceived abuse of education loan programs by recipients

of education benefits; not non-student co-signers. The Pelkowski court found the debtor's

arguments unpersuasive. "Patently, an unrepaid loan will adversely affect the financial

integrity of the educational loan program equally whether the defaulting debtor is the

student or the student's co-obligor." Id. at 743. It was similarly unpersuaded by the

debtor's argument that "[t]he absence of clear congressional intent to include co-signers"

should resolve the statutory interpretation question in the debtor's favor. "The Supreme

Court has cautioned against reading 'much into nothing. Congress cannot be expected to

specifically address each issue of statutory construction which may arise.'" Id. at 743-44

(quoting Albernaz v. United States, 450 U.S. 333, 341 (1981)). 

The Pelkowski court acknowledged that "section 523(a)(8) was enacted in response

to the belief that students were taking advantage of the loan program" and that "[i]n the

early 1970's, there was concern by legislators and the public about the perceived rise in

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The Sixth Circuit also concluded that "Congress elected to exclude certain obligations

from the general policy of discharge based upon the conclusion that the public policy in

issue, availability and solvency of educational loan programs for students, outweighs the

debtor's need for a fresh start." In re Merchant, 958 F.2d at 740 (applying § 523(a)(8) and

holding that educational bank loans guaranteed by private educational institutions and

extensions of credit by such institutions constitute non-dischargeable education loans). 

11

bankruptcy filings by students on the brink of lucrative careers." Id. at 742 (citing legislative

history). It then agreed with the Sixth Circuit's conclusion in Andrews University v.

Merchant (In re Merchant), "that 'Congress enacted 11 U.S.C. § 523(a)(8) in an effort to

prevent abuses in and protect the solvency of the educational loan programs.'" In re

Pelkowski, 990 F.2d at 743 (quoting In re Merchant, 958 F.2d 738, 742 (6th Cir. 1992)).2

It thus reasoned that the plain language of § 523(a)(8), relevant case law, and legislative

history all support a conclusion that "[t]he congressional intent to eliminate debtor abuse

of the education loan program would apply both to single makers of loan notes and to comakers, whether students or their parents or other co-signers, as all may abuse the

bankruptcy system or take advantage of legal loopholes." Id. at 744. This result "helps

preserve the financial integrity of the student loan program, . . . the other clearly expressed

legislative concern." Id. (internal citations omitted). 

Addressing yet another point raised by Debtor Cockels here, the Pelkowski court

observed that "[e]ven though the debt of the student co-signer would remain outstanding

notwithstanding the co-signer's discharge, releasing co-signers could likely, if not

necessarily, affect the economic viability of the student loan program. After all, the lenders

seek the security of a non-student co-signer precisely because there is a commercial risk

in looking only to the student for credit assurance." Id. (internal citation and parenthetical

omitted). Finally, the Pelkowski court rejected the argument, similar to that made here, that

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Debtor concedes that §523(a)(8) has mutually exclusive subparts that will compel a

determination of non-dischargeability if any one sub-part is applicable. (Appellant's Br. at

5.) In light of this Court's decision affirming the Bankruptcy Court's decision that sub-part

(a)(8)(A)(i) applies, it is unnecessary to address Debtor's additional arguments about the

applicability of the remaining sub-parts of § 523(a)(8).

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an interpretation of § 523(a)(8) that includes non-student co-signer student loan debt within

its ambit "runs counter to the purposes of the Bankruptcy Code to release an honest debtor

from financial burdens and to facilitate the debtor's unencumbered 'fresh start.'" Id. It

explained that, because "Congress has revealed an intent to limit the dischargeability of

educational loan debt," it has construed § 523(a)(8) "no more narrowly than the language

and legislative history allow," and that concluded that section 523(a)(8) "applies to a cosigner of a note for the educational expenses of another." Id. at 745. 

This Court finds this reasoning persuasive and concludes that the Bankruptcy Court

did not err as a matter of law when it reached the same conclusion.3

 

The Court now addresses Debtor's second issue on appeal.

B. The Bankruptcy Court's Findings of Fact Were Not Clearly

Erroneous and It Did Not Err as a Matter of Law in Concluding that

$9,500 of the Debtor/Co-Obligor's Student Loan Indebtedness was

Non-Dischargeable Under § 523(a)(8) 

Section 523(a)(8) of the Bankruptcy Code allows the discharge of student loans when

repayment "would impose an undue hardship on the debtor and the debtor's dependents."

11 U.S.C. § 523(a)(8). In In re Oyler, the Sixth Circuit adopted the three-prong Brunner test

for determining "undue hardship" first announced in a 1987 decision issued by the Second

Circuit Court of Appeals and subsequently followed by most of the other Circuit Courts of

Appeals. 397 F.3d 382, 385 (6th Cir. 2005) (citing Brunner v. New York State Higher Educ.

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Servs. Corp., 831 F.2d 395 (2d Cir. 1987)). Application of the Brunner "undue hardship"

test requires consideration of the following three factors:

(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.

In re Oyler, 397 F.3d at 385 (quoting Brunner, 831 F.2d at 396). 

Despite Debtor Cockels assertions to the contrary, the Bankruptcy Court did not

clearly err when it applied the Brunner test and found that, despite her current financial

obligations as a single mother of two young children and as a debtor on three student loans

of her own, Debtor Cockels could maintain a minimal standard of living for herself and her

dependents if forced to repay the $9,500 portion of student indebtedness found nondischargeable. It was not clear error for the Bankruptcy Court to make this finding in light

of evidence that Debtor is a healthy 25 year old with no mental or physical disabilities, that

she was educated as an registered nurse, employed full-time as a pediatric R.N. with

Children's Hospital in the Detroit Medical Center, that her net pay had increased and was

likely to continue to do so. It was not clear error to find that Debtor's current financial

situation would likely improve in light of evidence that the lease on her rented home expired

in 18 months and more affordable housing was available closer to her work thus allowing

her to decrease existing housing and commuting costs, that her cable expenses could be

eliminated, that her legal and Target credit card debt had or would soon be expired, that

she had not made any efforts to obtain child support from her daughter's father who was

also the co-signer on the student loan indebtedness sought to be discharged, and that her

food expenses were excessive and could be decreased by eating out less. Likewise, it was

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not clear error for the Bankruptcy Court to find that Debtor Cockels had listed expenses

which either "(a) no longer exist, or (b) can be immediately reduced while maintaining a

'minimal' standard of living." (2/10/09 Order at 2.) Finally, despite Debtor's arguments to

the contrary, the Bankruptcy Court did credit Debtor for contacting Sallie Mae to explore

arrangements that might be made on the student loan indebtedness after she learned that

Murawski had defaulted. (9/22/08 Order at 6.) 

Considering the above, it was not clear error for the Bankruptcy Court to find that, by

eliminating or reducing her monthly expenses, Debtor Cockels had available income of

approximately $117 to $167 per month that she could put toward the student loan obligation

that she sought to discharge. (Id. at 2.) Nor was it clear error for the Bankruptcy Court to

find that Debtor Cockels "was capable of paying approximately $100.00 per month towards

the student loan indebtedness while leaving a small cushion in the monthly budget for any

small unexpected expenses that may arise" being "mindful of the fact that unexpected

necessary expenses arise each month in the rearing of young children." (Id. at 2-3.)

Finally, it was not error for the Bankruptcy Court to conclude that forcing Debtor to pay a

slightly reduced portion of the outstanding student loan indebtedness; i.e. $9,500 at 5%

interest over 10 years, would not pose an undue hardship on Debtor and her dependents.

 

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V. Conclusion

For the foregoing reasons, the Bankruptcy Court's February 10, 2009 order is

AFFIRMED, and the Appellant's appeal is DISMISSED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: July 30, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

on July 30, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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