                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ERIC S. POYNTER,                                 No. 10-56751

              Debtor - Appellant,                D.C. No. 3:10-cv-01041-H-CAB

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,
Department of Education,

              Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                       Argued and Submitted March 5, 2012
                              Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.

       Eric Poynter filed a Chapter 7 bankruptcy petition on October 28, 1993. In

March 1994, he received a discharge. In September 2008, Poynter reopened his

bankruptcy proceedings. He sought a declaration that his discharge covered two



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1985 educational loans held by the Department of Education. The bankruptcy court

ruled the loans were not dischargeable, and the district court affirmed. We have

jurisdiction under 28 U.S.C. § 158(d)(1). We affirm.

      We review de novo an appeal from the district court’s decision on appeal

from the bankruptcy court. In re JTS Corp., 617 F.3d 1102, 1109 (9th Cir. 2010).

We review the bankruptcy court’s findings of fact for clear error and its

conclusions of law de novo. Id.

      When Poynter filed for bankruptcy, his student loans were dischargeable if

they “first became due more than 7 years . . . before the filing of the [bankruptcy]

petition.” 11 U.S.C. § 523(a)(8)(A) (1990). Thus, in order for Poynter’s loans to be

dischargeable, they must have become due no later than October 27, 1986. Poynter

argues that two provisions of the promissory notes independently caused the loans

to become due by this date.

      First, Poynter invokes a term that gave him a six-month grace period before

repayment. The grace period would begin when he “le[ft] school or cease[d] to

carry at least one-half the normal academic workload.” Poynter argues his grace

period ended in September 1986 because he “cease[d] to carry at least one-half the

normal academic workload” when he stopped attending most of his classes in

March 1986. We reject the argument. The date the grace period began turned on


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enrollment, not attendance. Poynter was enrolled in more than one-half of a normal

academic load as late as September 1986. His grace period ended less than seven

years before his bankruptcy petition.

       Our reading follows the “ordinary and popular sense” of “carry.” Cal. Civ.

Code § 1644. In the educational context, “carry” typically refers to responsibility

for courses, which in turn depends on formal enrollment. See The American

Heritage Dictionary 294 (3d ed. 1992). Our reading also “give[s] effect to every

part” of the promissory notes. Cal. Civ. Code § 1641. Equating “carry” with

“attendance” would make the phrase “leav[ing] school” redundant.

       Second, Poynter invokes a term that provided the loans would become

“immediately due and payable” upon default. Poynter argues the loans became due

under this term at the end of the Spring 1986 semester because he “fail[ed] . . . to

notify [the] lender . . . of a change in . . . enrollment status.”

       We reject the argument. The failure to notify the lender of a change in

enrollment status was not the pivotal factor. We recognize that the failure to notify

the lender “could” constitute default. That does not equate to “must” constitute

default. Rather, the promissory notes contemplate that default is declared by the

lender. Even in the case of default, the lender had discretion over when to demand

repayment. See In re Scott, 147 F.3d 788, 790 (8th Cir. 1998). Nothing in the


                                             3
record even suggests that the lender demanded repayment more than seven years

before Poynter filed for bankruptcy.

      AFFIRMED.




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