In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-3702

MARK WARREN TETZLAFF,

Plaintiff-Appellant,

v.

EDUCATIONAL CREDIT MANAGEMENT CORPORATION,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 14-cv-767 — Lynn S. Adelman, Judge.

____________________

ARGUED APRIL 22, 2015 — DECIDED JULY 22, 2015

____________________

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Mark Tetzlaff currently owes approximately $260,000 in student loan debt, which is guaranteed by Educational Credit Management Corporation. When 

Tetzlaff filed for Chapter 7 bankruptcy in 2012, he sought to 

have this debt discharged, claiming that repayment constituted an “undue hardship” under 11 U.S.C. § 523(a)(8). After 

a trial, the bankruptcy court held that Tetzlaff’s student debt 

could not be discharged. The United States District Court for 
2 No. 14-3702

the Eastern District of Wisconsin affirmed. We, in turn, affirm the district court.

I. Background

Mark Tetzlaff is fifty-six years old and lives in Waukesha,

Wisconsin with his eighty-five-year-old mother; they both 

subsist on the income from her Social Security payments. 

Tetzlaff is divorced, has no children, and is currently unemployed. From the mid-1990s until 2005, Tetzlaff pursued a

Masters in Business Administration from Marquette University, as well as a law degree from Florida Coastal School of 

Law (“Florida Coastal”).1 Most relevant to this appeal, Tetzlaff took out various federally guaranteed student loans to 

finance his graduate education.2 In 2004, Tetzlaff consolidated his student loan debt, and Educational Credit Management Corporation (“Educational Credit”) is now the guarantor for the outstanding loan amount.

Tetzlaff has been unsuccessful at passing a state bar exam

to date (although he has made two attempts). Prior to attending graduate school, Tetzlaff worked as a financial advisor, an employee-benefits consultant, an insurance salesman, 

and a stock broker. Over the years, Tetzlaff has struggled 

with depression and alcohol abuse; he has also been involved in domestic disputes. Tetzlaff has several misde-

 

1 Tetzlaff also attended DePaul University College of Law, but was dismissed from the program without a degree.

2 Tetzlaff financed his education at Florida Coastal directly with the 

school. Tetzlaff’s Florida Coastal debt was not included in this discharge

action. However, as we will explain later, Tetzlaff argues that payments 

made to Florida Coastal should influence our analysis of his good faith 

efforts to pay the student loan debt at issue in this action for discharge.
No. 14-3702 3

meanor convictions, including convictions for disorderly 

conduct and intimidating a victim. He claims that all of these 

factors combined make it very difficult for him to secure 

employment.

In February 2012, Tetzlaff filed for Chapter 7 bankruptcy

in the United States Bankruptcy Court for the Eastern District of Wisconsin. At the time, Tetzlaff owed approximately 

$260,000 in student loan debt, which was guaranteed by Educational Credit. In July 2012, Tetzlaff filed an adversary 

complaint seeking to discharge his student loan debt; the 

complaint named two financial institutions (who are not 

parties to this appeal) as defendants. Educational Credit 

subsequently filed a motion to substitute itself as a real party 

of interest, and the bankruptcy court granted this motion.

The bankruptcy court held a trial in May 2014 to determine whether Tetzlaff was eligible to discharge his student 

loans. The court determined that Tetzlaff failed to show that

repaying his student loans would constitute an “undue 

hardship,” and thus found that Tetzlaff could not discharge 

them. The United States District Court for the Eastern District of Wisconsin affirmed. Tetzlaff appealed.

II. Discussion

Student loans are generally not dischargeable in bankruptcy unless the debtor proves that excluding the loans 

from discharge “would impose an undue hardship on the 

debtor.” 11 U.S.C. § 523(a)(8). To determine which situations 

constitute an “undue hardship,” we have adopted the Brunner test for student loan discharge proceedings, which requires a debtor to show that:
4 No. 14-3702

(1) [he] cannot maintain, based on current income and expenses, a “minimal” standard of 

living for himself and his dependents if forced 

to repay [his] loans;

(2) additional circumstances exist indicating 

that this state of affairs is likely to persist for a 

significant portion of the repayment period; 

and

(3) [he] made good faith efforts to repay the 

loans.

In re Roberson, 999 F.2d 1132, 1135 (7th Cir. 1993) (citing 

Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395, 

396 (2d Cir. 1987)). A debtor must satisfy each element of the 

Brunner test in order to have his loans discharged. Id. at 

1135–36. In this case, the bankruptcy court found that Tetzlaff met the first element of the Brunner test, but that he 

failed to meet the second two. Educational Credit does not 

challenge the bankruptcy court’s analysis of the first Brunner 

prong. Thus, we accept for purposes of our analysis that 

Tetzlaff meets the first Brunner requirement, and we proceed 

to examine the remaining elements: the “additional circumstances” prong and the “good faith” prong. The bankruptcy 

court found that neither element fell in Tetzlaff’s favor. 

We review the factual findings of the bankruptcy court 

for clear error. Id. at 1137. In Krieger v. Educational Credit 

Management Corp., we held that the additional circumstances 

prong represents a “factual finding,” and thus is only reversible if shown to be clearly erroneous. 713 F.3d 882, 884

(7th Cir. 2013). In analyzing the good faith prong, we held 

that this determination “combines a state of mind (a fact) 
No. 14-3702 5

with a legal characterization (a mixed question of law and 

fact).” Id. While we acknowledged in Krieger that there may 

be circumstances in which the “only real dispute is legal”—

in which case our review would be less deferential—we recognized that the good faith analysis is “a predominantly factual understanding” and that the “undue hardship” inquiry 

as a whole is “a case-specific, fact-dominated standard, 

which implies deferential appellate review.” Id. With such 

deference in mind, we find that the bankruptcy court’s conclusions on the additional circumstances prong and the good 

faith prong must both be affirmed.

A. Additional Circumstances

The second prong of the Brunner test contemplates 

whether “additional circumstances exist indicating that [the 

inability to pay] is likely to persist for a significant portion of 

the repayment period ... .” Roberson, 999 F.2d at 1135. We 

have noted that “the dischargeability of student loans 

should be based upon the certainty of hopelessness, not 

simply a present inability to fulfill financial commitment.”

Id. at 1136 (citing In re Briscoe, 16 B.R. 128, 131 (Bankr.

S.D.N.Y. 1981)). While in Krieger we noted that the “certainty 

of hopelessness” standard “sounds more restrictive than the 

statutory ‘undue hardship’ [standard]” we also noted that “a 

judge asked to apply a multi-factor standard interpreting an 

open-ended statute necessarily has latitude; the more vague 

the standard, the harder it is to find error in its application.” 

713 F.3d at 885. Here, the bankruptcy court found that Tetzlaff’s financial situation has the ability to improve given that 

“he has an MBA, is a good writer, is intelligent, and family 

issues are largely over.” The court also concluded that “Tetzlaff is not mentally ill and is able to earn a living.” On the 
6 No. 14-3702

topic of Tetzlaff’s mental health, the court mentioned the testimony of Dr. Marc Ackerman—a forensic psychologist 

hired by Educational Credit—and Dr. Amy Gurka—

Tetzlaff’s treating psychologist. The bankruptcy court noted 

that Dr. Gurka diagnosed Tetzlaff with Narcissistic Personality disorder, but that Tetzlaff’s “anxiety and depression do 

not reach clinical levels.” The court also noted that tests performed by Dr. Ackerman indicated that Tetzlaff “scored 

very high on several malingering scales,” indicating that 

Tetzlaff was perhaps feigning his psychological symptoms.

On these facts, the bankruptcy court’s analysis of the additional circumstances prong was not clearly erroneous. 

Given Tetzlaff’s academic degrees, prior work experience, 

and age, we agree with the bankruptcy court that he is capable of earning a living. (In fact, Tetzlaff’s capable pro se representation in this case is, in our opinion, an indicator of his 

marketable job skills.) While Tetzlaff references obstacles related to his mental health, testimony presented to the bankruptcy court indicates that he does not suffer from clinical 

levels of anxiety or depression, and further indicates that 

Tetzlaff may, in fact, be exaggerating his symptoms. As we 

stated in Roberson, “undue hardship encompasses a notion 

that the debtor may not willfully or negligently cause his 

own default, but rather his condition must result from factors beyond his reasonable control.” 999 F.2d at 1136 (citation and internal quotation marks omitted).

On appeal, Tetzlaff notes that the bankruptcy court did 

not permit him to present the testimony of two experts that

would have helped his case, particularly on the topic of his 

future ability to secure employment and earn a living. Prior 

to trial, the bankruptcy court excluded the proposed testi-
No. 14-3702 7

mony of: (1) a forensic psychologist who would have testified that Tetzlaff had memory problems that would likely 

prohibit him from ever passing a bar exam; and (2) a vocational counselor who would have testified that Tetzlaff was 

unlikely to find employment paying more than $31,000 to 

$37,000 per year. The bankruptcy court excluded this testimony due to Tetzlaff’s late disclosure of the experts. The 

bankruptcy court previously granted three extensions of the 

court’s pretrial deadline to disclose experts, such that Tetzlaff had until August 2, 2013 to do so. On April 10, 2014, 

Tetzlaff filed an emergency motion seeking permission to 

disclose the additional experts, and the bankruptcy court 

denied the motion. The district court affirmed, noting that 

under Federal Rule of Civil Procedure 16(b)(4), a pretrial 

scheduling deadline may only be modified for “good cause.” 

Tetzlaff explained that it did not occur to him to seek testimony on memory loss until he failed two exams needed to 

work in the financial industry in November 2013 (several 

months after the expert disclosure deadline had passed). For 

the next six months, Tetzlaff apparently gathered the 

“memory evidence” that he wished to present at trial, and 

then filed the emergency motion with the bankruptcy court 

regarding the two additional experts. However, even assuming that Tetzlaff could not have recognized the need for 

“memory experts” prior to November 2013, Tetzlaff waited 

another six months to raise the issue with the bankruptcy 

court (and this was after the deadline for expert disclosure 

had been thrice extended). We therefore agree with the district court that Tetzlaff did not show good cause for the lateness of his expert disclosure, and thus we reject Tetzlaff’s 

argument that the bankruptcy court erred in excluding his 

two proposed experts. 
8 No. 14-3702

B. Good Faith

A debtor’s good faith efforts to repay his student loans 

are measured by his ability to “obtain employment, maximize income, and minimize expenses.” Roberson, 999 F.2d at

1136. Good faith is also assessed by the debtor’s demonstrated efforts to pay off his existing loans. In Krieger, we recognized that the question of good faith under Brunner necessarily implicates the debtor’s past efforts to pay down the 

debt at issue (rather than a resolve to pay the debt in the future, which directly conflicts with the very nature of a loan 

discharge proceeding). 713 F.3d at 884. The bankruptcy court 

noted that “[Tetzlaff] repaid much of the loan to Florida 

Coastal Law School, but nothing on the loan at issue in this 

adversary proceeding.” Drawing on these facts, the bankruptcy court concluded that, as with the additional circumstances prong, Tetzlaff did not meet Brunner’s good faith requirement.

Tetzlaff argues that the bankruptcy court erred in refusing to consider his payments to Florida Coastal (which are 

not included in the instant discharge action) in concluding 

that he had not made a good faith effort to repay the debt

held by Educational Credit. However, Tetzlaff’s position is 

without legal support. Educational Credit points to In re 

Roberta Spence, 541 F.3d 538, 545 (4th Cir. 2008), in which a 

debtor also sought to discharge student loan debt (also held 

by Educational Credit) and argued that her attempt to pay 

Perkins Loans should qualify as a “good faith” effort to repay her Educational Credit debt. The Fourth Circuit noted 

that “[Spence’s] choice to repay some of the Perkins Loans 

does not demonstrate a good faith effort to repay the student 

loans held by [Educational Credit].” Id.; see also In re Cun-
No. 14-3702 9

ningham, No. 04-2636, 2006 WL 1133923, at *4 (N.D. W.Va. 

Apr. 26, 2006) (holding that “there is no authority that suggests that a debtor who pays down one loan while neglecting another acts in good faith”) Tetzlaff has not identified

any competing authority. Additionally, Tetzlaff’s argument 

conflicts with the very nature of the undue hardship analysis, which is an inquiry about the ability of a debtor to pay 

student loan debt subject to a discharge action. See 11 U.S.C. 

§ 523(a)(8). The bankruptcy court was not required to consider Tetzlaff’s payments to Florida Coastal as evidence of a 

good faith effort to repay Educational Credit, as his Florida 

Coastal debt was not included in the discharge action. Furthermore, as the bankruptcy court noted, it seems that Tetzlaff repaid his debt to Florida Coastal largely because he 

needed the school’s cooperation in releasing his diploma 

and transcript. Thus, Tetzlaff was motivated by certain incentives to pay down his Florida Coastal debt that do not 

apply to the repayment of his debt held by Educational 

Credit. Therefore, we decline to hold that the bankruptcy 

court erred when it refused to consider the repayment of 

debt not included in the loan discharge proceeding before it 

in making a determination of good faith under the Brunner

test. Further, we affirm the bankruptcy court’s conclusion 

that Tetzlaff has not made a good faith effort to pay down 

his student loan debt.

III. Conclusion

Accordingly, we AFFIRM.