Petition for Writ of Certiorari — Janet Tingling, Petitioner v. Educational Credit Management Corporation, et al.

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Opinion of the United States Court of Appeals for

the Second Circuit (March 11, 2021)................. la

Memorandum and Order of the United States

District Court for the Eastern District of

New York (January 30, 2020)............................ 10a

Judgment of the United States Bankruptcy

Court for Eastern District of New York

(April 15, 2019)...........................................

41a

Rehearing Order

Order of the United States Court of Appeals for

the Second Circuit Denying Petition for

Rehearing (September 17, 2021)...................

44a

App.la

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

(MARCH 11, 2021)

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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.

No. 20-757-bk

On Appeal from the United States District Court

for the Eastern District of New York

Before: CABRANES, RAGGI, and

SULLIVAN, Circuit Judges.

App.2a

JOSE 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, Bank­

ruptcy 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 memo­

randum, 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 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 estab­

lish “undue hardship” under Brunner v. N.Y. State

Higher Educ. Servs. Corp831 F.2d 395, 396 (2d Cir.

1987), as would be required to discharge her educa­

tional 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

App.3a

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 memo­

randum as the 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

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 proceed­

ing before the Bankruptcy Court.

2 See 11 U.S.C. § 523(a)(8).

3 Tingling v. U.S. Dep’t ofEduc., 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).

App.4a

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.®

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

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).

® 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) (“[PJermission 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)).

App.5a

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 hand-marked joint pretrial memorandum accept­

able and directed that it be docketed, and that the

parties submit a “clean” version. App’x 65. But Tingling

subsequently filed additional “joint” pretrial memo­

randa. 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 marked-up 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.

After reviewing the record, we agree with the Dis­

trict Court that the Bankruptcy Court did not abuse

its discretion in adopting the joint pretrial memoran­

dum 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 uni­

laterally revised versions.

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

the subsequent course of the action.” Rockwell IntT, 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).

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

App.6a

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.’”lO While the Bankruptcy Court need

not “view[] such modification with hostility,” its deter­

mination should balance “the need for doing justice

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

for maintaining orderly and efficient procedural

arrangements.”!! 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 memo­

randum 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 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.”!2 However, pursuant

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

ment, Subdivision (d).

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

11 Laguna, 439 F.2d at 101-02.

12 Easterling v. Collecto, Inc., 692 F.3d 229, 231 (2d Cir. 2012)

App.7a

to 11 U.S.C. § 523(a)(8), a student loan can be dis­

charged 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 depend­

ents 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

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

statutory scheme exhibiting “clear congressional

(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”).

App.8a

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 admin­

istration, 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

15 Brunner, 831 F.2d at 396.

App.9a

year for 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 Bank­

ruptcy 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 Dis­

trict Court’s judgment.

App.lOa

MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF NEW YORK

(JANUARY 30, 2020)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JANET TINGLING,

Appellant,

v.

UNITED STATES DEPARTMENT OF

EDUCATION, AMERICAN EDUCATION

SERVICES, GREAT LAKES EDUCATIONAL LOAN

SERVICES, INC., NELNET, INC., NAVIENT

CORPORATION, and EDUCATIONAL CREDIT

MANAGEMENT CORPORATION,

Appellees.

19-CV-2307(JS)

Before: Joanna SEYBERT, U.S. District Judge.

SEYBERT, District Judge:

Currently pending before the Court is an appeal

filed by Janet Tingling (“Debtor” or “Tingling”),

appearing pro se, from an order of the United States

Bankruptcy Court for the Eastern District of New York

(“Bankruptcy Court”), Hon. Alan S. Trust, dated April

15, 2019, denying Debtor’s request to discharge her

App.lla

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

For the reasons stated below, the Bankruptcy Court’s

determination that the loans are non-dischargeable

is AFFIRMED.

BACKGROUND

The following facts are drawn from the Complaint

and the documents incorporated by reference therein.

Additionally, the Court takes judicial notice of the doc­

uments filed in Debtor’s bankruptcy case. See New­

man v. Educ. Credit Mgmt. Corp., No. 08-CV-3871,

2009 WL 1875778, at *1 (E.D.N.Y. June 26, 2009);

Harbinger Capital Partners Master Fund I, Ltd. v.

Wachovia Capital Markets, LLC, No. 07-CV-8139, 2008

WL 3925175, at *1 n. 2 (S.D.N.Y. Aug. 26, 2008) (court

can take judicial notice of the public filings in a

bankruptcy proceeding).!

I.

Bankruptcy Proceedings

On April 25, 2016, Debtor, represented by counsel,

filed for relief under Chapter 7 of the United States

Code (the “Bankruptcy Code”) and received a general

discharge on August 9, 2016. (Bankr. 16-71800, D.E.

10-1, Bankr. Pet., at ECF pp. 9-15; Appellant Br., D.E.

1 The documents filed in the underlying Bankruptcy case 1671800 “Bankr.” can be found at D.E. 10, at ECF pp. 1-119. The

documents cited to in the underlying Adversary Proceeding 1608113 “ADV. PR.” are docketed in this Court at D.E. 6; however,

the Court has used the PACER System to access the Adversary

Proceeding documents and uses the docket entry numbers

generated by the PACER System. References to the docket in the

adversary proceeding are cited as “ADV. PR., D.E. [docket entry

number].” References to the docket in the instant appeal are cited

as “D.E. [docket entry number].” For consistency, the Court will

refer to page numbers provided by the court’s CM/ECF system.

App.l2a

4, at 2.) On August 5, 2016, Debtor filed an adversary

proceeding by filing a complaint against the United

States Department of Education (“DOE”), American

Education Services (“AES”), Great Lakes Educational

Loan Services, Inc. (“Great Lakes”), Nelnet, Inc. (“Nel­

net”), and Navient Corporation (“Navient”) (collect­

ively, “Defendants”) seeking a determination that her

educational loans are dischargeable pursuant to 11

U.S.C. § 523(a)(8) 2 (ADV. PR., D.E. 1.)

On February 6, 2017, Debtor’s attorney filed a

motion to withdraw as counsel (DOE Br., D.E. 11, at 8

(citing ADV. PR., D.E. 19)) which the Bankruptcy

Court granted on April 28, 2017 (DOE Br. at 8; ADV.

PR., D.E. 25.) On April 17, 2017, Debtor filed a motion

to seal the case and a motion for a default judgment

against the DOE for not responding to a request for the

production of documents. (ADV. PR., D.E. 22, 23, 24.)

On June 21, 2017, the Bankruptcy Court granted Edu­

cational Credit Management Corporation (“ECMC”)’s

motion to intervene in the adversary proceeding, as

the assignee of eight of the educational loans. (ADV.

PR. Consent Order, D.E. 30.) The Bankruptcy Court

denied Debtor’s default motion on September 25, 2018.

(ADV. PR. Order Denying Default Motion, D.E. 54.)

After mediation efforts failed, the Bankruptcy

Court ordered the parties to file a joint pretrial memo­

randum. (DOE Br. at 9 (citing ADV. PR., D.E. 33,

36).) On July 27, 2018, Defendants filed a joint

2 Navient agreed to discharge Debtor’s liability as to the loan it

held and in turn Tingling stipulated to the dismissal of Navient

as a defendant which was approved by the Bankruptcy Court on

October 18, 2018. (Hr’gTr., D.E. 4-3, at 6; ADV. PR., D.E. 10.) Great

Lakes did not appear in the adversary proceeding.

App.l3a

pretrial memorandum and Debtor filed a separate pre­

trial memorandum. (ADV. PR. Defs. Joint Pretrial

Memo., D.E. 41; DOE Br. at 9.) Following the Bank­

ruptcy Court’s subsequent order, the parties conferred

and filed a joint pretrial memorandum containing hand

written notations made during their meeting. (DOE

Br. at 9; ADV. PR. Revised Joint Pretrial Memo., D.E.

44.) On July 31, 2018, the Bankruptcy Court directed

the parties to submit a clean version of the joint pretrial

memorandum by August 10, 2018. (ADV. PR. Am.

Pretrial Scheduling Order, D.E. 43.) Debtor did not

consent to the draft of the clean version but filed her

own “joint pretrial memo” on August 10, 2018. (ADV.

PR. Tingling Pretrial Memo., D.E. 47.)

Following a September 25, 2018 status conference,

the Bankruptcy Court directed ECMC to prepare a

revised joint pretrial memorandum setting forth both

stipulated facts and, separately, questions of fact to

be determined by the Bankruptcy Court at trial. (ADV.

PR. Further Am. Pretrial Scheduling Order, D.E. 54.)

Tingling submitted an amended “joint” pretrial memo­

randum along with her affidavit of direct testimony

on September 27, 2019. (ADV. PR. Tingling Aff. and

Am. Joint Pretrial Memo., D.E. 56.) ECMC filed the

revised joint pretrial memorandum on October 9, 2018.

(ADV. PR. Final Joint Pretrial Order (“JPTO”), D.E.

61.) Ultimately, Defendants’ joint pretrial memoran­

dum was entered by Order, dated October 9, 2018, as

the JPTO governing the trial (see ADV. PR. JPTO),

and Tingling’s amended pretrial memorandum was

specifically excluded from admission at trial (Trial

Tr., D.E. 4-2, 56:5-14 (referencing Tingling Aff.)).

App.l4a

A. Joint Pretrial Order

The following are stipulated facts in the JPTO.3

At the time of the filing of the JPTO, Debtor was fiftytwo (52) years of age, unmarried, and had no depen­

dents. (ADV. PR. JPTO 1111 8, 9.) She had no medical

or psychological disabilities. (ADV. PR. JPTO K 10.)

Debtor holds B.S. and M.S. degrees in Biology, an

M.B.A. in Healthcare Management, and a D.B.A.

(Doctorate of Business Administration) degree. (ADV.

PR. JPTO HU 11) 12.) At the time of the filing of the

JPTO, Debtor was attending school to obtain her

PhD in Healthcare Management. (ADV. PR. JPTO

If 6.) She has been employed by Montefiore Medical

Center as a Clinical Research Associate since 2014.

(ADV. PR. JPTO f 13.) Debtor received an adjusted

gross income of approximately $48,320 in 2016 and

$50,234 in 2017. (ADV. PR. JPTO H 14.) Debtor’s pay­

roll deductions included contributions toward a 403(b)

retirement plan and life insurance premiums. (ADV.

PR. JPTO U 15.) She claimed tax deductions for edu­

cational tuition in her tax returns for years 2013

through 2017. (ADV. PR. JPTO U 21.) Debtor received

federal tax refunds of $2,697 for 2013; $4,264 for

2014; $4,264 for 2015; $4,291 for 2016; and $4,530

for 2017. (ADV. PR. JPTO 1 22.) She did not use any

portion of her tax returns to repay her outstanding

student loans. (ADV. PR. JPTO K 22.) She reported

charitable donations in the amount of $2,407 for

2015; $2,462 for 2016; and $2,644 for 2017. (ADV.

PR. JPTO H 23.)

3 References to specific paragraphs of the JPTO are from Section

IV of the JPTO labeled, “Stipulated Facts.”

App.l5a

Debtor lives in a house that she co-owns with her

sister and they each pay fifty percent of the monthly

household expenses. (ADV. PR. JPTO UH lb, 17.) In

December 2016, the house was assessed at $298,800

and as of July 2018, the outstanding mortgage on the

house was $152,827.92. (ADV. PR. JPTO UH 18, 19.)

Debtor’s monthly expenses include, among other things,

$149 per month for bundled cable, telephone and inter­

net service. (ADV. PR. JPTO U 20.)

ECMC, which acts as a federal student loan guar­

antor in the Federal Family Education Loan Program

(“FEELF’), holds an interest in eight of Debtor’s unpaid

student loans (the “ECMC loans”). (ADV. PR. JPTO

UK 1, 2.) These ECMC loans were used to finance

Debtor’s education at Adelphi University and Ross

University School of Medicine. (ADV. PR. JPTO U 3.)

As of March 28, 2017, the outstanding balance of the

ECMC loans, including principal, interest, fees, and

costs was approximately $59,112.10 (accruing an

interest rate of 2.65% per annum, or $4.23 per diem

in the aggregate). (ADV. PR. JPTO U 4.) Debtor is

eligible to enter the William D. Ford Direct Loan

Consolidation Program (the “Ford Program”) or par­

ticipate in other options under FFELP in order to

achieve greater flexibility in repaying the ECMC

loans. (ADV. PR. JPTO U 24.) If Debtor participates

in the Ford Program her monthly payment under the

income-based repayment program (“IBR”) would be

$380, based on her reported household adjusted gross

income. (ADV. PR. JPTO U 25.) If she participates in

the Revised Pay As You Earn Plan (“REPAYE”), her

monthly payment would be $253.33 for twenty-five

years based on her reported gross income. (ADV. PR.

JPTO U 26.) ECMC advised Debtor of these loan

App.l6a

repayment options but as of the date of the filing of

the JPTO, she declined to participate in any of them.

(ADV. PR. JPTO 1 26.)

The DOE loans include, among others, a number

of Stafford Loans issued to Debtor between 1996 and

1999. (ADV. PR. JPTO H 5.) There was a question of

fact as to the number of loans possessed by the DOE

and the amount owed on the loans. (ADV. PR. JPTO,

§ V, Questions of Fact,

4, 7, 8.) The DOE placed

Debtor in deferred status based upon her enrollment

in a program to obtain her PhD. (ADV. PR. JPTO

1 6.) As of the date of the JPTO, Debtor had not

made any payments toward any of the DOE loans.

(ADV. PR. JPTO H 7.)

B. Trial Testimony

On October 11, 2018, the Bankruptcy Court held

a trial to consider whether or not Debtor’s educational

loans owed to ECMC and the DOE were dischargeable

pursuant to 11 U.S.C. § 523(a)(8). (See Trial Tr. at 1.)

Tingling testified and the Court admitted her affidavit

into evidence with the following exceptions. The Bank­

ruptcy Court excluded testimony regarding prior dis­

putes concerning the production of documents and its

denial of Tingling’s motion for a default judgment

against the DOE. (Trial Tr. 52:1-8.) Over Debtor’s

objections, the Bankruptcy Court refused to reconsider

the JPTO which stipulated that ECMC owned eight

of Debtor’s student loans. (Trial Tr. 52:9-16; 104:14106:20.) The Bankruptcy Court also declined to hear

testimony referencing Tingling’s diagnosis of a tumor.

(Trial Tr. 52:24-53:23.) It noted that Tingling had

waived her right to raise a medical condition as an issue

in the adversary proceeding and had also stipulated

App.l7a

that she had no medical or psychological disabilities in

the JPTO. (Trial Tr. 53:6-21.) Finally, the Bankruptcy

Court excluded the pretrial memorandum Tingling

attached to her affidavit which contained a number

of statements that were not ultimately included in

the final JPTO. (Trial Tr. 55:11-22.)

Tingling testified that she obtained loans for her

education at Queens College from 1996 until 2001,

and Davenport University from 2009 through 2014.

(Trial Tr. 56:23-57:21.) She testified that her take

home pay was $2,773 every month after taxes, 403(b)

contribution and loan repayment, and health insurance.

(Trial Tr. 69:4; 100:19-101:3.) Tingling stated that she

pays half of the $2,426.37 monthly mortgage which

includes real estate taxes. (Trial Tr. 71:10-22.) She also

testified that she pays half of the electric, water and

ADT bills. (Trial Tr. 71: 23-25; 77:7-9.)

Tingling claimed that she did not receive legiti­

mate documentation from ECMC to establish proof

of ownership of the loans. (Trial Tr. 104:3-109:3.)

She testified that the fcCMC loans were tied up with

the Sallie Mae loans and that she made very small

payments to Sallie Mae while in medical school

beginning in 2014 or 2016 for two years. (Trial Tr.

75:13-23; 87:19-89:24.) The Court noted that the JPTO

did not address the issue of whether or not the Debtor

had made any payments on the ECMC loans to which

ECMC responded that there is no evidence in the

record showing that she made any payments on the

loans at issue. (Trial Tr. 115:8-18.)

In regard to the DOE loans, Tingling disputed

the amount owed arguing that there was a lack of

evidence of the existence of some of the loans. (Trial

Tr. 107:10-111:16.) She stated that she never made

App.l8a

any payments on the DOE loans. (Trial Tr. 78:4-20.)

DOE witness Rhoda Terry (“Terry”), a loan analyst

testified that the DOE possessed the promissory notes

for twenty of the twenty-five loans. (Trial Tr. 12:8-13;

26:24-25.) According to Terry’s testimony, Tingling

was eligible to enter into an income-based repayment

program for the DOE loans. (Trial Tr. 40:25-41:3.)

Based on the outstanding DOE loan amount and Tingling’s reported income on her 2017 tax return, Terry

determined that Tingling would be required to pay

approximately $400 per month. (Trial Tr. 41:4-18.)

Terry also testified that if Tingling consolidated all of

her student loans, she would be eligible for the

REPAYE program, requiring that she pay approxi­

mately $266 per month. (Trial Tr. 40:4-18.)

At the close of trial, the Bankruptcy Court acknow­

ledged that there was “more than substantial evidence

in the record that th[e] debts exist”, that Debtor did

not “have a good faith challenge that [she] didn’t

borrow most of this money, [and] use it for educa­

tional purposes,” and that “the Defendants [ ] are owed

the money.” (Trial Tr. 129:16-22.) The Bankruptcy

Court noted that “[m]ost of [Debtor’s] battle with the

Defendants has been the amount that might be

owed,” (Trial Tr. 127:5-8) and therefore it needed to

decide “whether or not [it] needs to actually liquidate

the amount of the claims of ECMC and the [DOE], or

simply determine that the legitimate loans that they

did make are non-dischargeable or dischargeable”4

(Trial Tr. 126:24-127:3).

4 In closing, the DOE stated that it would waive collection of

five of the twenty-five loans for which they were unable to locate

promissory notes. (Trial Tr. 116:17-21.) This would bring the

outstanding balance of $206,000 to $181,000. (Trial Tr. 117:3-10.)

App.l9a

C. Bankruptcy Court’s Decision

The Bankruptcy Court explained its Ruling at a

Conference on February 26, 2019 (the “Ruling Confer­

ence”). (See Hr’g Tr.) It determined that the Debtor

was not entitled to discharge her student loans pursu­

ant to 11 U.S.C. § 523(a)(8) because she failed to satisfy

any one of the three requisite elements of the Second

Circuit’s test pursuant to Brunner v. N.Y. State Higher

Educ. Servs. Corp., 831 F.2d 395 (2d Cir. 1987) (per

curiam), aff’g 46 B.R. 752 (S.D.N.Y. 1985). More spe­

cifically, the Bankruptcy Court found that under

Brunner, Debtor failed to meet her burden of proving:

(1) that she cannot maintain a minimal standard of

living for herself, (2) “that additional circumstances

exist indicating that [her] state of affairs is likely to

persist for a significant portion of the repayment

period of the loans,” and (3) that she made good-faith

efforts to repay the ECMC loans or the DOE loans.

(Hr’g Tr. 13:4-20:13.)

Before stating its Ruling, the Bankruptcy Court

restated the relevant facts as stipulated to in the

JPTO. (Hr’g Tr. 8:19-12:8.) Additionally, in applying

the Brunner test, the Bankruptcy Court made findings

of fact based on the testimony of the witnesses and

the exhibits entered into evidence at trial. (Hr’g

Tr. 12:9-16; 14:14-20:8.)

In regard to the first Brunner factor, the Bank­

ruptcy Court found that “Debtor Q failed to undertake

steps to improve her overall financial condition and

reduce her expenses.” (Hr’g Tr. 14:14-17.) More spe­

cifically, it found that Debtor has “financial flexibility”

but has decided not to utilize the substantial equity

in her home to reduce her monthly expenses and/or

to repay any of the loans. (Hr’g Tr. 14:20-25.) It fur-

App.20a

ther noted that Debtor’s income exceeded the 2018

Federal Poverty Guidelines. (Hr’g Tr. 15:5-8.) The

Bankruptcy Court therefore concluded that based on

Debtor’s current income and expenses, she failed to

meet her burden of proving the inability to maintain

a minimal standard of living while repaying the ECMC

loans and the DOE loans simultaneously. (Hr’g

Tr. 15:8-10; 19:4-9.)

In regard to the second factor of the Brunner test,

the Bankruptcy Court found that the Debtor should

be able to continue to maintain the level of income

that she enjoyed for several years prior to filing for

bankruptcy. (Hr’g Tr. 15:21-24; 19:14-18.) It based

this conclusion on the Debtor’s relatively young age;

good health, including the absence of any mental or

physical existing impairments; work skills; numerous

educational degrees and marketability; and lack of

obligation to pay dependents support. (Hr’g Tr. 15:2516:5; 19:18-24.) The Bankruptcy Court also pointed

out that it was the ECMC loans, in part, that enabled

Debtor to obtain her advanced degrees by financing

her education. (Hr’g Tr. at 16.) Thus, it determined that

Debtor failed to meet her burden of proof with respect

to the second factor. (Hr’g Tr. 16:10-12; 19:14-20.)

Finally, the Bankruptcy Court found that Debtor

failed to satisfy Brunner’s third factor because of her

lack of good-faith efforts to repay the loans. (Hr’g

Tr. 16:13-17:3; 20:2-8.) The Bankruptcy Court deter­

mined that Debtor’s decision “not to avail herself of

any of the[] repayment options” available for the

ECMC loans precluded a finding of good faith effort to

repay the loans. (Hr’g Tr. 16:21-17:3.) The Bankruptcy

Court further found that Debtor failed to meet her

burden of proof to show good faith efforts towards

App.21a

repaying or negotiating an alternative payment of the

DOE loans. (Hr’g Tr. 20:2-8.) It noted that the DOE

loans were used to finance the Debtor’s education at

Queens College, Nassau Community College, and

Davenport University. (Hr’g Tr. 18:1-3.) The Bank­

ruptcy Court further noted that, though the DOE was

unable to locate one or more promissory notes, the out­

standing balance for the notes they did possess was

approximately 181,000.5 (Hr’g Tr. 18:4-11.) The Bank­

ruptcy Court acknowledged that the DOE loans were

in deferment while Debtor was enrolled in various

higher educational programs but that her deferred

status ended on March 4, 2018, almost two years after

Debtor had filed for bankruptcy. (Hr’g Tr. 18:12-19.)

It further noted that Debtor had not made any pay­

ments on the DOE loans and that the DOE had not

sought collection as Debtor had filed for bankruptcy.

(Hr’g Tr. 18:20-25.) Therefore, the Bankruptcy Court

concluded that Debtor failed to meet her burden of

proof to show good faith by negotiating an alternative

payment plan on the DOE loans. (Hr’g Tr. 20:2-8.)

In sum, the Bankruptcy Court found that the

Brunner test was not satisfied as Debtor failed to

meet her burden of proof with respect to any of its

three requisite elements and accordingly, that the

loans were not dischargeable. (Hr’g Tr. 19:2-4.) Final

judgment was entered for Defendants on April 15,

2019. (ADV. PR. Final J., D.E. 68.) Debtor timely

filed her notice of appeal on April 19, 2019, seeking

reversal of the Bankruptcy Court’s order.

5 The Bankruptcy Court’s decision appears to contain a typo­

graphical error in stating that the balance was $281,000. (See

Hr’g Tr. 18:11.)

App.22a

DISCUSSION

I.

Standard of Review

This Court has jurisdiction to hear appeals from

decisions of a bankruptcy court pursuant to 28 U.S.C.

§ 158(a), which provides in relevant part that “[t]he

district courts of the United States shall have jurisdic­

tion to hear appeals . . . from final judgments, orders,

and decrees;. . . [and,] with leave of the court, from

other interlocutory orders and decrees ... of bankruptcy

judges. ...” 28 U.S.C. § 158(a). On review of a bank­

ruptcy court’s order, a district court functions as

an appellate court and may affirm, modify, reverse

or remand with instructions for further proceedings.

Sumpter v. DPH Holdings Corp. (In re DPH Holdings

Corp.), 468 B.R. 603, 611 (S.D.N.Y. 2012).

Whether discharging a debtor’s student loan would

impose an “undue hardship” under 11 U.S.C. § 523

(a)(8) requires a conclusion regarding the legal effect

of the bankruptcy court’s findings and is thus properly

subject to this Court’s review. Brunner, 831 F.2d at

396. In reviewing the bankruptcy court’s decision, a

district court does not have to agree with every conclu­

sion reached but can affirm the decision on “any ground

supported in the record.” In re Coronet Capital Co., No.

94-CV-1187, 1995 WL 429494, at *3 (S.D.N.Y. July 20,

1995) (citing Roby v. Corp. of Lloyd’s, 996 F.2d 1353,

1359 (2d Cir. 1983), cert, denied, 510 U.S. 945, 114 S.

Ct. 385, 126 L. Ed. 2d 333 (1993).

A bankruptcy court’s “[findings of fact, whether

based on oral or documentary evidence, shall not be

set aside unless clearly erroneous.” In re Artha Mgmt.,

Inc., 91 F.3d 326, 328 (2d Cir. 1996) (internal quotation

marks and citation omitted); see also In re Momentum

App.23a

Mfg. Co., 25 F.3d 1132, 1136 (2d Cir. 1994). “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 the definite and firm con­

viction that a mistake has been committed.” Robbins

Int’l, Inc. v. Robbins MBW Corp. (In re Robbins Int’l,

Inc.), 275 B.R. 456, 464-65 (S.D.N.Y. 2002) (internal

quotation marks and citation omitted). “Factual find­

ings must be upheld if plausible in light of the record

viewed in its entirety.” Id. (internal quotation marks

and citation omitted). A bankruptcy court’s legal con­

clusions are reviewed de novo. See In re Momentum

Mfg. Co., 25 F.3d at 1136.

Finally, discovery rulings and evidentiary exclu­

sions are reviewable under an abuse of discretion stan­

dard. See Rockstone Capital LLC v. Metal, 508 B.R.

552, 558 (E.D.N.Y. 2014) (discovery rulings); In re

Bernard L. Madoff Inv. Sec., LLC, 605 B.R. 570, 582

(S.D.N.Y. 2019) (citing Manley v. AmBase Corp., 337

F.3d 237, 247 (2d Cir. 2003) (evidentiary exclusions).

A trial court’s determination that certain facts or issues

must be excluded from trial on the basis of a pretrial

order is reviewed for abuse of discretion. Laguna v.

Am. Exp. Isbrandtsen Lines, Inc., 439 F.2d 97, 101-02

(2d Cir. 1971). A trial court abuses its discretion when

“(1) its decision rests on an error of law (such as the

application of the wrong legal principle) or a clearly

erroneous factual finding, or (2) its decision-though

not necessarily the product of a legal error or a clearly

erroneous factual finding-cannot be located within

the range of permissible decisions.” Zervos v. Verizon

N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnotes

omitted).

App.24a

II. Issues on Appeal

The Debtor challenges the Bankruptcy Court’s de­

termination that her DOE and ECMC loans are nondischargeable under 11 U.S.C. § 523(a)(8). In support

of this contention, Debtor claims that the Bankruptcy

Court’s final judgment is based on fraudulent loan

documents, insufficient and missing evidence, and

procedural errors. (See Appellant Br. at 1-18; Appellant

Reply Br., D.E. 16, at 5.) The majority of Debtor’s

briefs are devoted to challenging various discoveryrelated and evidentiary rulings of the Bankruptcy

Court (see Appellant Br. at 1-18); the issue of the

dischargeability of the educational loans is discussed

in just two and a half pages of her twenty-three-page

opening brief. (Appellant Br. at 19-21.)

Specifically, Debtor makes the following argu­

ments: the Bankruptcy Court erred in admitting the

Defendants’ revised joint pretrial memorandum while

denying admission of her own (Appellant Br. at 17-18);

the Bankruptcy Court’s denial of her motion for a

default judgment against the DOE for failing to

timely respond to discovery requests was prejudicial

(Appellant Br. at 7-9); it was error for the Bankruptcy

Court to grant ECMC’s motion to intervene as she

was coerced into conceding that ECMC was in fact the

owner of the assigned loans (Appellant Br. At 16-17);

and, personal information not covered under the redac­

tion requirement should be protected and de-identified

in all public documents that are not sealed® (Appellant

Br. at 18).

® Debtor also contends that non-defendant Sallie Mae and Defend­

ant Great Lakes violated the automatic stay during the bankruptcy

proceeding by pursuing collection efforts in violation of the Fair

App.25a

In regard to the dischargeability of her educational

debt, Tingling makes the following arguments: the

Bankruptcy Court erred in not considering her recently

diagnosed tumor in its application of the Brunner

test (Appellant Br. at 19); she made good-faith efforts

to repay her Sallie Mae loans by making monthly

payments of $100-$150 for approximately two years

while employed and requested a forbearance and

deferment when she was unable to make such pay­

ments (Appellants Br. at 20); and, participation in

the Ford Program would result in a tax liability that

would subject her social security benefits to garnish­

ment leaving her in a worse situation (Appellant Br.

at 21).

III. Analysis

The Court will address Debtor’s discovery-related

and evidentiary issues before it turns to the dis­

chargeability of her educational debt. As noted supra,

the Court reviews such rulings for abuse of discretion.

See Rockstone Capital LLC, 508 B.R. at 558.

A. The JPTO

First, Debtor contends that the Bankruptcy Court

erred when it denied admission of her revised pretrial

memorandum but accepted Defendants’ revised version

which ultimately became the Bankruptcy Court’s

JPTO. (Appellant Br. at 17-18.) After reviewing the

record, the Court finds that there was no abuse of

Debt Collection Practices Act (“FDCPA”). (Appellant Br. at 15.)

However, the Court declines to address this issue as Sallie Mae

is not a party to the underlying bankruptcy and Great Lakes,

though a named Defendant, did not appear in the adversary

proceeding.

App.26a

discretion in the Bankruptcy Court’s rulings pertaining

to the admission of the JPTO.

Pursuant to Federal Rule of Civil Procedure 16(d),

made applicable to the Bankruptcy Court by Federal

Rule of Bankruptcy Procedure 7016, a pretrial order

“supersede^] all prior pleadings and control[s] the

subsequent course of the action.” Rockwell Int’l Corp.

v. United States, 549 U.S. 457, 474, 127 S.Ct. 1397, 167

L. Ed. 2d 190 (2007) (internal quotation marks and cita­

tions omitted). “A bankruptcy court has broad discretion

to preserve the integrity of a pretrial order, and ... an

appellate court generally should not interfere with a

trial court’s decision to admit or exclude evidence based

on its interpretation of its own pretrial order.” Old

Republic Nat’l Title Ins. Co. v. Levasseur (In re Levasseur), 737 F.3d 814, 819 (1st Cir. 2013) (internal quota­

tion marks and citation omitted); see also Santrayll v.

Burrell, No. 91-CV-3166, 1998 WL 24375, at *7-8

(S.D.N.Y. Jan. 22, 1998) (“‘Motions to reopen or to

modify a pretrial order are addressed to the sound

discretion of the trial judge.’”) (quoting Bradford Trust

Co. v. Merrill Lynch Fierce, Fenner, and Smith, Inc.,

805 F.2d 49, 52 (2d Cir. 1986))).

In the instant case, the JPTO entered by the

Bankruptcy Court on October 9, 2018 was the subject

of much dispute among the parties. (Trial Tr. 53:10-18.)

As noted, after numerous failed attempts at collab­

orating on a pretrial memorandum, and multiple

hearings before the Bankruptcy Court, the parties

were directed to file a single version of a revised joint

pretrial memorandum. (ADV. PR. Am. Pretrial Sched­

uling Order, D.E. 43.) Declining to consent to the

Defendants’ version, Debtor filed her own version of

the revised “joint” pretrial memorandum and a motion

App.27a

requesting that the Bankruptcy Court accept her pro­

posed facts and argument. (ADV. PR. Tingling Pretrial

Memo.; ADV. PR. Motion, D.E. 48.) Notably, Tingling’s version of the “joint” pretrial memorandum

challenged the chain of ownership of the ECMC

loans but did acknowledge the existence of the eight

loans. (ADV. PR. Tingling Pretrial Memo.) Ultimately,

the Bankruptcy Court entered Defendants’ revised

pretrial memorandum as the JPTO governing the

trial. (See ADV. PR. JPTO.) It contained stipulated

facts the parties had previously agreed to and

numerous questions of fact and questions of law to be

determined at trial that had been raised by Tingling’s “joint” pretrial memorandum. (ADV. PR. JPTO.)

The Court upholds the Bankruptcy Court’s “broad

discretion to preserve the integrity” of its pretrial

order. In re Levasseur, 737 F.3d at 819 (finding no

abuse of discretion where bankruptcy court granted

defendant’s motion to strike a portion of debtor’s

pretrial memorandum) (internal quotation marks and

citation omitted). The Court notes that “for pre-trial

procedures to continue as viable mechanisms of court

efficiency, appellate courts must exercise minimal inter­

ference with trial court discretion in matters such as

the modification of its orders.” Ramirez Pomales v.

Becton Dickinson & Co., S.A., 839 F.2d 1, 3 (1st Cir.

1988) (citing Syracuse Broad. Corp. v. Newhouse, 295

F.2d 269, 274 (2d Cir. 1961)). Accordingly, the Court

finds that the Bankruptcy Court did not abuse its dis­

cretion in admitting the JPTO and precluding Debtor’s

version.7

7 Because the Court finds that the Bankruptcy Court did not abuse

its discretion with regard to admission of the JPTO, the Court

declines to address Debtor’s numerous challenges to the facts as

App.28a

B. Motion for a Default Judgment

Next, Tingling contends that the Bankruptcy

Court erred when it denied her motion for a default

judgment against the DOE for not responding to

discovery requests in a timely manner. (See Appellant

Br. at 5-10.) The Court finds that the Bankruptcy

Court did not abuse its discretion in denying Debtor’s

motion.

The decision to grant or deny a motion for default

judgment pursuant to Rule 55 of the Federal Rules of

Civil Procedure is within the trial court’s discretion.

See Reilly v. Natwest Mkts. Grp., Inc., 181 F.3d 253,

271 (2d Cir. 1999) (affirming denial of default motion

despite defendant’s failure to produce certain files in

discovery). Furthermore, “[a] plaintiff is not entitled

to default judgment as a matter of right, merely be­

cause a party has failed to appear or respond.” LG

Funding, LLC u. Fla. Tilt, Inc., No. 15-CV-0631, 2015

WL 4390453, at *2 (E.D.N.Y. July 15, 2015) (citing

Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp.

160, 162 (S.D.N.Y. 1993)). “The dispositions of motions

for entries of defaults and default judgments . . . are

left to the sound discretion of a district court because

it is in the best position to assess the individual cirstipulated in the JPTO related to the validity and ownership of

the federal education loans. (See Appellant Br. at 3-6, 10-14;

Appellant Reply Br. at 2-3, 5, 9; JPTO 1HJ 2-5.) Additionally, it

appears that Debtor raises a statute of limitations defense claiming

that the educational loans became due more than six years ago.

(Appellant Br. at 3, 20.) However, pursuant to the Higher Edu­

cation Technical Amendments of 1991 (“HETA”), 20 U.S.C. § 1091a,

actions to recover on defaulted student loans are not subject to

statutes of limitations. See United States v. Whitaker, No. 09-CV2983, 2011 WL 5856482, at *1 n. 4 (E.D.N.Y. Nov. 21, 2011).

App.29a

cumstances of a given case and to evaluate the cred­

ibility and good faith of the parties.” Enron Oil Corp.

v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). According­

ly, as the Bankruptcy Court was in the best position

to evaluate the circumstances of the case, including

the good faith of the parties, this Court will not

disrupt its ruling denying Debtor’s motion for default

judgment.

C. Motion to Intervene

Tingling claims that she did not knowingly consent

to the Bankruptcy Court’s order authorizing ECMC

to intervene as guarantor of eight of the educational

loans. (Appellant Br. At 16; Appellant Reply Br. at 34.) Debtor’s challenge to ECMC’s intervention in the

bankruptcy proceeding is without merit.

On June 21, 2017, the Bankruptcy Court executed

a consent order authorizing ECMC to intervene in

the adversary proceeding pursuant to Federal Rule

of Civil Procedure 24(a) and (b). (ADV. PR. Consent

Order.) By executing the consent order and agreeing

to ECMS’s intervention, Debtor waived her right to

challenge ECMS’s intervention. See Marker v. Trout­

man (In re Troutman Enters., Inc.), 286 F.3d 359, 363

(6th Cir. 2002) (holding “[intervention is a procedural

hurdle, rather than a jurisdictional requirement, and

as such, can be waived,” and finding where the Trustee

failed to lodge a timely intervention objection, he affir­

matively consented to an agreed upon Order, and

thereby waived his objection); In Re Appl. of the

Akron Beacon Journal, No. 94-CV-1402, 1995 WL

234710, at *3-4 (S.D.N.Y. April 20, 1995) (citing

Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291,

294 (2d Cir. 1979) (holding that defendant’s failure to

App.30a

challenge the government’s standing resulted in a

waiver of any objections to the government’s permissive

intervention under Rule 24(b)). Thus, as Debtor con­

sented to ECMS’s intervention, she is precluded from

challenging it on appeal.

D. Motion to Seal

Finally, Debtor claims that her “safety and future

employment” are being compromised and seeks to have

“personal information not covered under the redaction

requirement such as drivers Lie#, address, email,

name, and phone # be protected and de-identified in

all public documents that are not sealed.” (Appellant

Br. at 18) (emphasis omitted).

On April 17, 2017, Debtor moved to seal the adver­

sary proceeding (ADV. PR. Motion to Seal, D.E. 22),

but the Bankruptcy Court never ruled on that motion.

However, at trial, the Bankruptcy Court did provide

limited protection to Debtor’s personal information

pursuant to Federal Rule of Bankruptcy Procedure

9037. (Trial Tr. 6:18-7:20.)

The Supreme Court has explained, “the decision

as to access [to judicial records] is one best left to the

sound discretion of the trial court, a discretion to be

exercised in light of the relevant facts and circum­

stances of the particular case.” Nixon v. Warner Comm.,

Inc., 435 U.S. 589, 599, 98 S. Ct. 1306, 1313, 55 L. Ed.

2d 570 (1978). Therefore, the Court finds that the

Bankruptcy Court properly exercised its discretion in

taking reasonable protective measures of Debtor’s

information.

App.31a

E. Dischargeability Under 11 U.S.C. § 523

(a)(8)

“Generally, a debtor who seeks relief under the

Bankruptcy Code cannot have student loan debt dis­

charged. 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.” Williams v. N.Y. State

Higher Educ. Serus. Corp., 296 B.R. 298, 302 (S.D.N.Y.

2003) (internal quotation marks omitted), aff’d, 84 F.

App’x 158 (2d Cir. 2004); see also Easterling v. Collecto,

Inc., 692 F.3d 229, 231-32 (2d Cir. 2012). Congress

enacted 11 U.S.C. § 523(a)(8) (“Section 523(a)(8)”) in

light of “evidence of an increasing abuse of the bank­

ruptcy process that threatened the viability of educa­

tional loan programs and harm to future students as

well as taxpayers.” In re Renshaw, 222 F.3d 82, 87

(2d Cir. 2000). “[Section] 523(a)(8) exhibits a ‘clear

congressional intent... to make the discharge of

student loans more difficult than that of other nonexcepted debt.... Traversa v. Educ. Credit Mgmt.

Corp. (In re Traversa), 444 F. App’x 472, 474 (2d Cir.

2011) (summary order), cert, denied, 568 U.S. 817,

133 S.Ct. 135, 184 L.Ed.2d 29 (2012) (quoting Brunner,

831 F.2d at 396 (The debtor bears the burden of proof

to show undue hardship by a preponderance of the

evidence).

The Second Circuit adopted a three-part test to

be applied in determining whether a student loan is

dischargeable pursuant to Section 523(a)(8) on the

basis of “undue hardship.” Brunner, 831 F.2d at 396.

Discharge is permissible only if a court finds: (1)

“that the debtor cannot maintain, based on current

income and expenses, a ‘minimal’ standard of living

App.32a

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.” See id. If any one of

the three Brunner requirements is not met, “the

bankruptcy court’s inquiry must end there, with a

finding of no dischargeability.” Williams, 296 B.R. at

302 (citing Pa. Higher Educ. Assistance Agency v.

Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1995)).

In determining whether the three-pronged Brun­

ner test is satisfied courts consider multiple factors,

“including the debtor’s gross income, age, health,

dependents, and marital status.” Id. The test makes

clear that it imposes a heavy burden on the debtor

seeking discharge of student debt. See, eg., In re L.K.,

351 B.R. 45, 52 (Bankr. E.D.N.Y. 2006). “Discharge

based on undue hardship is reserved for extreme cir­

cumstances where a debtor is living in poverty or near

poverty with little possibility of supplemental income.”

Williams, 296 B.R. at 303.

1. Application of Brunner

Applying the Brunner test, the Bankruptcy Court

determined that Tingling failed to satisfy any one of

the three requisite factors, and therefore denied her

request for an undue hardship discharge of her student

loans. (See ADV. PR. Final J.) As the Court finds

that the Bankruptcy Court’s determination was not

based on clearly erroneous factual findings or on an

erroneous view of the law, Tingling’s appeal is without

merit.

App.33a

a. Debtor can Maintain a Minimal

Standard of Living

Tingling does not satisfy the first Brunner factor

because the undisputed facts establish that her income

and expenses will allow her to make loan repayments

while maintaining a “minimal” standard of living.

Brunner, 831 F.2d at 396.

To satisfy this first factor, “[a] debtor must

demonstrate financial circumstances that [go] beyond

the garden-variety financial hardship that most debtors

experience.” Jean-Baptiste v. Educ. Credit Mgmt. Corp.,

(In re Jean-Baptiste), 584 B.R. 574, 587 (Bankr. E.D.

N.Y. 2018) (internal quotation marks and citation

omitted). In evaluating this factor, courts consider

“household income and the expenses necessary to meet

a debtor’s basic needs, such as food, shelter, clothing,

transportation and medical treatment, and assess

whether a debtor has sought to maximize income while

minimizing certain discretionary expenses.” Id. (citing

In re Pincus, 280 B.R. 303, 318 (Bankr. S.D.N.Y.

2002)); see also Williams, 296 B.R. at 303 (finding no

undue hardship where debtor was not living in im­

poverished conditions); In re Faish, 72 F.3d at 306

(affirming district court finding that student loan

debt was non-dischargeable where debtor with one

dependent and a gross yearly salary of $27,000 failed

to show that she could not maintain a minimal stan­

dard of living).

Debtor has not met this burden. Though Tingling

may face difficulty repaying her student loans, the

undisputed facts establish that she can maintain a

minimal standard of living. Debtor’s salary has

continuously increased since the beginning of her em­

ployment at Montefiore in 2014, and she has received

App.34a

substantial tax refunds each year. (Trial Tr. 63:9-24;

ADV. PR. JPTO H 22.) Though Debtor now claims a

$59 monthly shortfall after expenses without the

student loan payment (Appellant Br. at 19), this

alone is insufficient under Brunner. See Perkins v.

Pa. Higher Educ. Assistance Agency (In re Perkins), 318

B.R. 300, 305-07 (Bankr. M.D.N.C. 2004) (stating that

whether a debtor has minimized her expenses “requires

the court to examine the reasonableness of the expen­

ses listed in the Plaintiffs budget”); In re Pincus, 280

B.R. at 318 (finding debtor failed to meet burden with

respect to the first Brunner factor despite negative

monthly cash flow where his monthly expenditures

on items such as cable, telephone and transportation

were not reasonable). Debtor’s monthly budget was

based on post retirement contributions and includes

expenses such as life insurance, cable, cell phone,

and transportation that have been considered unneces­

sary for a minimal standard of living. (Appellant Br.

at 19; ADV. PR. JPTO

15, 20.) See In re Perkins, 318

B.R. 305 (finding the debtor could maintain minimal

standard of living by eliminating unnecessary expen­

ses); In re Pobiner, 309 B.R. 405, 417 (Bankr. E.D.N.Y.

2004) (characterizing voluntary 401(k) contributions,

life insurance, internet access, and premium cable

channels as ‘luxuries” which demonstrated that debtor

had failed to minimize his expenses for purposes of

undue hardship inquiry).

Finally, the poverty guidelines issued by the

United States Department of Health and Human

Services, effective January 13, 2018, list income of

$12,140 as the guideline for a single-person household.

(See ADV. PR. JPTO K 28.) Therefore, Debtor’s annual

salary of $50,000 is more than four times the poverty

App.35a

level and thus well beyond meeting the “minimal”

standard of living requirement. See In re N.M. v.

Educ. Credit Mgmt. Corp., 325 B.R. 507, 509-10 (Bankr.

W.D.N.Y. 2005) (finding no undue hardship where

debtor’s income was more than two-and-one-half times

the poverty level for a debtor with no dependents).

Thus, the Bankruptcy Court reasonably found that

her situation was not “so dire” and “likely to persist

for so long that [she] could not maintain a minimal

standard of living.” (Trial Tr. 122:6-11.) This finding

is supported by substantial evidence and was not

clearly erroneous.

b. There is No Evidence of an Excep­

tional Circumstance

With regard to the second Brunner factor, the

Bankruptcy Court correctly concluded that Debtor

failed to present evidence from which a reasonable

finder of fact could conclude by a preponderance of

the evidence that there were additional, exceptional

circumstances indicating “a total incapacity now and

in the future to pay [her] debts for reasons not within

[her] control.” In re Brunner, 46 B.R. at 758 (internal

quotation marks and citation omitted).

Debtor asserts that her “job and health prospects

indicate that [her] state of affairs is likely to persist

for a significant portion of the repayment period of

the [] [d]ebt.” (Appellant Br. at 20.) She claims that

she has “never earned a net income of more than

$2,773.38 per month,” and that she has “about a decade

or less of work life remaining based on current

health status.” (Appellant Br. at 20.) Tingling claims

that her “financial circumstances are not reasonably

likely to change in the future to enable [her] to have

App.36a

the ability to otherwise repay the [s]tudent [l]oan [d]ebt

because of added medical expenses, a static base salary,

and the lack of advanced experience needed for higher

paying jobs.” (Appellant Br. at 20.)

The record does not support Debtor’s contentions.

In determining whether a debtor has met the second

Brunner factor, courts consider the debtor’s job skills,

age, health, the number of working years remaining,

and whether the debtor has maximized her income

potential. See In re Traversa, 444 F. App’x at 474-75.

“[T]he additional circumstances element [of the Brunner

test] sets a high standard of proof.” Educ. Credit

Mgmt. Corp. v. Curiston, 351 B.R. 22, 29 (D. Conn.

2006). Courts typically find this second factor satisfied

under such extreme circumstances as severe illness,

disability, or an unusually large number of dependents.

See Brunner, 46 B.R. at 755; Davis v. Educ. Credit

Mgmt. Corp. (In re Davis), 373 B.R. 241, 249-50 (W.D.

N.Y. '2007) (Brunner's second factor is “a demanding

requirement and necessitates that a certainty of

hopelessness exists that the debtor will not be able to

repay the student loans.”) (internal quotation marks

and citation omitted).

Here, Debtor presented no evidence of any

exceptional circumstances that would limit her future

ability to earn a living, support herself, and repay

her loans. At the time of the JPTO, Debtor was fiftytwo years of age, single with no dependents, resided

in a house with her sister, and was gainfully employed.

(ADV. PR. JPTO 1H[ 8, 9, 13, 16.) Notably, she possesses

both B.S. and M.S. degrees in Biology, an M.B.A. in

Healthcare Management, and a D.B.A. (Doctorate in

Business Administration), making her marketability

high. (ADV. PR. JPTO

H, 12.) In fact, the very

App.37a

loans she is seeking to discharge provided Debtor with

the educational ability to maintain and even further

her income. (See ADV. PR. JPTO

3, 6, 11, 12.)

Significantly, Debtor maintained that she was in

good health until trial, when she argued for the first

time that her ability to work in the future was

questionable based on a recent tumor diagnosis. (Trial

Tr. 42:21-53:23; 56:6-9.) However, the Bankruptcy

Court noted that Debtor had affirmatively waived on

the record her right to raise a medical condition as an

issue in the adversary proceeding, and also stipulated

to the fact that she had no medical or psychological

disabilities. (Trial Tr. 53:3-23.) “At a minimum, \\, a

borrower seeking an ‘undue hardship’ discharge

must provide corroborative evidence that he had an

impairment that prevents him from earning enough

to repay his student loans, and that the impairment

is likely to persist well into the future.” In re Norasteh,

311 B.R. 671, 678 (Bank. S.D.N.Y. 2004) (finding debtor

failed to sustain burden where he did not offer any

medical reports to corroborate a persistent impair­

ment); see also In re Traversa, 444 F. App’x at 475

(noting absence of evidence of medical condition in

record supported finding that debtor had failed to

satisfy second Brunner factor); In re Pobiner, 309 B.R.

at 419 (finding lack of corroborating evidence precluded

finding that debtor suffered from “any medical condi­

tion which would impact his ability to earn a living

over a significant portion of the repayment periods of

the student loans”). Thus, having waived raising a

medical issue as an exceptional circumstance in the

adversary proceeding, and there being no evidence in

App.38a

the record of any medical condition, Debtor is precluded

from doing so now.8

Accordingly, the Bankruptcy Court’s determination

that Debtor failed to satisfy the second requisite

factor of Brunner was correct.

c. Debtor has not Demonstrated GoodFaith Efforts to Repay the Student

Loans

As to the final Brunner factor, the Bankruptcy

Court did not err in concluding that Debtor failed to

make “good faith efforts to repay [her] loans.” See

Brunner, 831 F.2d at 396. Good faith is measured by

the debtor’s “‘efforts to obtain employment, maximize

income, and minimize expenses.’” Educ. Credit Mgmt.

Corp. v. Frushour (In re Frushour), 433 F.3d 393, 402

(4th Cir. 2005) (quoting O’Hearn v. Educ. Credit Mgmt.

Corp. (In re O’Hearn), 339 F.3d 559, 564 (7th Cir.

2003); see also In re Pobiner, 309 B.R. at 420. A

debtor’s failure to diligently pursue repayment options

is considered when applying the good faith require­

ment set forth in Brunner. In re Pobiner, 309 B.R. at

421; In re Frushour, 433 F.3d at 402 (“The debtor’s

effort to seek out loan consolidation options that

make the debt less onerous is an important component

of the good-faith inquiry.”).

The Bankruptcy Court correctly found that Ting­

ling failed to show good-faith because she has not

shown the requisite effort to repay her student loans.

8 Debtor’s contention that she did not submit medical records

for fear of Defendants’ gaining access to her personal information

(Appellant Br. at 17; Appellant Reply Br. at 5) does not change

the Court’s analysis.

App.39a

Though she claims to have made several minimal pay­

ments on her “Sallie Mae” loans (Appellant Br. at 1'6),

she failed to offer any proof at trial to support this

contention.9 (Trial Tr. 115:8-18.) Furthermore, as to

the ECMC loans, the Debtor declined the opportunity

to enter into various repayment options, including

but not limited to the Ford Program. (Hr’g Tr. 16:1324.) Though Debtor asserts that her participation in

the Ford Program would still result in undue hardship

due to “tax liability that would subject the debtor’s

social security benefits to garnishment,” (Appellant

Br. at 21), “the potential downstream tax consequences

of entering a loan forgiveness! program [are] not

relevant to [the undue hardship] analysis.” In re

Lozada, 604 B.R. 427, 437 (S.D.N.Y. 2019).

As for the DOE loans, Debtor requested and was

granted a deferment on those loans while she attended

school to earn her PhD. (ADV. PR. JPTO | 6.) Though

her deferred status ended in March 2018, as of the

date of the Bankruptcy Court’s decision, Debtor made

no payments on any of the DOE loans nor made any

efforts to negotiate an alternative payment plan. 10

(Hr’g Tr. 20:2-8.) See In re L.K., 351 B.R. 45, 54-55

0 Debtor refers to “Sallie Mae” loans, however, Sallie Mae is not

a defendant in this proceeding. The Court notes that it is possible

at some point that Sallie Mae was the servicer of the loans. (See

Trial Tr. 114:17-25.)

10 Debtor disputes the amount owed on the DOE loans. However,

for purposes of the adversary proceeding, the Bankruptcy Court

only needed to determine whether the Debtor’s loans were

dischargeable. See Williams, 296 B.R. at 303. (“a bankruptcy court

is not required to determine the full amount due to the creditors

during adversary proceedings concerning the dischargeability of

student loans.”)

App.40a

(Bankr. E.D.N.Y. 2006) (finding no good faith where

debtor sought deferments but did not attempt to

renegotiate the repayment terms of her loans or avail

herself of the Ford Program); In re Pobiner, 309 B.R.

at 421 (same). Accordingly, the Court finds that the

Bankruptcy Court did not err in finding that Debtor

failed to satisfy the third Brunner factor.

In sum, the Bankruptcy Court’s findings of fact

were not clearly erroneous, and it did not err as a

matter of law in finding that Debtor was precluded

from discharging her student loan debt under Section

523(a)(8) as she failed to carry her burden on all three

of the requisite Brunner factors. Accordingly, the Court

AFFIRMS the Bankruptcy Court’s determination that

the educational debt is non-dischargeable.

CONCLUSION

The Bankruptcy order appealed from is

AFFIRMED and Debtor’s appeal is DISMISSED. The

Clerk of the Court is directed to mail a copy of this

Order to the pro se Debtor and mark the case CLOSED.

SO ORDERED.

/s/ Joanna Sevbert

U.S.D.J.

Dated: January 30, 2020

Central Islip, New York

App.41a

JUDGMENT OF THE UNITED STATES

BANKRUPTCY COURT FOR EASTERN

DISTRICT OF NEW YORK

(APRIL 15, 2019)

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF NEW YORK

IN RE JANET TINGLING,

Debtor,

JANET TINGLING,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF

EDUCATION, AMERICAN EDUCATION

SERVICES, GREAT LAKES EDUCATIONAL LOAN

SERVICES, INC., NELNET, INC., NAVIENT

CORPORATION, and EDUCATIONAL CREDIT

MANAGEMENT CORPORATION,

Defendants.

Case No.: 16-71800-AST

ADV. PRO. NO.: 16-08113-AST

Before: Alan S. TRUST,

United States Bankruptcy Judge.

App.42a

On August 5. 2016, Plaintiff Janet Tingling (Plain­

tiff) filed a Complaint (the “Complaint”), to declare

her debts for certain educational loans held by Defend­

ants, Educational Credit Management Corporation

(“ECMC”) and United States Department of Education

(“ED”), dischargeable pursuant to 11 U.S.C. § 523(a)(8).

The Court held a trial on October 11, 2018, at which

the Court considered the dischargeability of (i) eight

(8) federal educational loans owed by Plaintiff to ECMC

(the “ECMC Loans”) and (ii) approximately twentyfive (25) federal educational loans owed by Plaintiff

to ED (the “ED Loans”). The Court considered the

testimony of Plaintiff and Rhoda Terry of ED, and

the documents submitted into evidence by the parties;

and conducted a ruling conference on February 26,

2019, the transcript of which is incorporated herein

by reference. The Court determined that Plaintiff failed

to satisfy her burden of proving that she cannot

maintain a minimal standard of living for herself

and her dependents if she is forced to repay the

ECMC Loans or the ED Loans, that Plaintiff failed to

satisfy her burden of proving that additional circum­

stances exist indicating that her state of affairs is

likely to persist for a significant portion of the repay­

ment periods for the ECMC Loans or the ED Loans,

and that Plaintiff failed to satisfy her burden of

proving that she made good-faith efforts to repay the

ECMC Loans or the ED Loans. Based thereon, it is

hereby

ORDERED, that the ECMC Loans be and are

hereby deemed to be nondischargeable pursuant to

11 U.S.C. § 523(a)(8); and it is further

App.43a

ORDERED, that the ED Loans be and are hereby

deemed to be nondischargeable pursuant to 11 U.S.C.

§ 523(a)(8); and it is further

ORDERED, that the Clerk of the Court serve this

Final Judgment on Plaintiff and Defendants.

Is/ Alan S. Trust

United States Bankruptcy Judge

Dated: April 15, 2019

Central Islip, New York

App.44a

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

DENYING PETITION FOR REHEARING

(SEPTEMBER 17, 2021)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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.

Docket No. 20-757

Before: Jose A. CABRANES, Reena RAGGI,

Richard J. SULLIVAN, Circuit Judges.

App.45a

Appellant Janet Tingling having filed a petition

for panel rehearing and the panel that determined

the appeal having considered the request,

IT IS HEREBY ORDERED that the petition is

DENIED.

For The Court:

/s/ Catherine O’Hagan Wolfe

Clerk of Court