     10-4811-bk
     Roger John Traversa v. Educational Credit Management Corporation

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
     January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this
     Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party
     must cite either the Federal Appendix or an electronic database (with the notation “summary order”).
     A party citing a summary order must serve a copy of it on any party not represented by counsel.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
 2   Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 28th day
 3   of October, two thousand eleven.
 4
 5   PRESENT:
 6
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                         Circuit Judges.
11
12   __________________________________________
13
14   In re: Roger John Traversa,
15   -------------------------------------------------------------------
16
17   Roger John Traversa,                                                          No. 10-4811-bk
18
19                      Debtor-Appellant,
20
21                               v.
22
23   Educational Credit Management Corporation,
24
25               Creditor-Appellee.
26   __________________________________________
27
28   FOR PLAINTIFF-APPELLANT:                                          ROGER TRAVERSA, Harwinton, CT.
29
30   FOR DEFENDANT-APPELLEE:                                           TROY GUNDERMAN, Oakdale, MN.
31


                                                              1
 1           Appeal from a judgment of the United States District Court for the District of Connecticut
 2   (Janet C. Hall, Judge).
 3
 4        UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of the District Court is AFFIRMED.
 6
 7            Plaintiff-appellant Roger John Traversa, an attorney appearing pro se, brought this action in the
 8   Bankruptcy Court for the District of Connecticut (Lorraine M. Weil, Chief Judge), seeking discharge of
 9   his student loan debt. Following trial, the Bankruptcy Court held that Traversa was not entitled to
10   discharge his student loan debt pursuant to 11 U.S.C. § 523(a)(8) and denied Traversa’s various motions
11   to seal portions of the record pursuant to 11 U.S.C. § 107(b) and (c). Traversa appealed, and the District
12   Court affirmed the Bankruptcy Court decision on November 5, 2010. This appeal followed. We
13   assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
14   on appeal.
15
16           “An appeal from a district court’s review of a bankruptcy court ruling is subject to plenary
17   review.” In re Halstead Energy Corp., 367 F.3d 110, 113 (2d Cir. 2004). “We accept [a] bankruptcy court’s
18   findings of fact unless clearly erroneous, but review its conclusions of law de novo.” Id. at 114. We
19   review the discretionary rulings of a bankruptcy court for abuse of discretion. In re Dana Corp., 574 F.3d
20   129, 145 (2d Cir. 2009); see Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining “abuse of
21   discretion”).
22
23           Whether a debtor may discharge his student loans in bankruptcy proceedings is governed by 11
24   U.S.C. § 523, which provides in relevant part:
25
26                   (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b)
27                        of this title does not discharge an individual debtor from any debt
28                        ...
29                     (8) unless excepting such debt from discharge under this paragraph
30                           would impose an undue hardship on the debtor and the
31                           debtor’s dependents, for—
32                       (A) (i) an educational benefit overpayment or loan made, insured, or
33                                 guaranteed by a governmental unit, or made under any
34                                 program funded in whole or in part by a governmental unit
35                                 or nonprofit institution; or
36                           (ii) an obligation to repay funds received as an educational
37                                 benefit, scholarship, or stipend; or
38                       (B) any other educational loan that is a qualified education loan,
39                              as defined in section 221(d)(1) of the Internal Revenue Code
40                              of 1986, incurred by a debtor who is an individual.
41
42           11 U.S.C. § 523(a) (emphasis added).

                                                       2
 1            There is no dispute that Traversa’s student loans, which amount to approximately $60,000,
 2   qualify as presumptively nondischargeable under § 523(a)(8). Accordingly, the primary issue on appeal
 3   is whether Traversa would face an “undue hardship” if his loans were not discharged. 11 U.S.C.
 4   § 523(a)(8).
 5
 6          To defeat the statutory presumption against a student loan discharge, a debtor who claims
 7   “undue hardship” must demonstrate the following by a preponderance of the evidence:
 8
 9                      (1) that the debtor cannot maintain, based on current income and
10                      expenses, a ‘minimal’ standard of living for herself and her dependents
11                      if forced to repay the loans; (2) that additional circumstances exist
12                      indicating that this state of affairs is likely to persist for a significant
13                      portion of the repayment period of the student loans; and (3) that the
14                      debtor has made good faith efforts to repay the loans.
15
16   Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir. 1987) (per curiam);1 see also
17   Grogan v. Garner, 498 U.S. 279, 291 (1991) (holding that “the standard of proof for the dischargeability
18   exceptions in 11 U.S.C. § 523(a) is the ordinary preponderance-of-the-evidence standard”).
19
20            In this case, the Bankruptcy Court found that Traversa met the first Brunner prong based on his
21   testimony that he had been unemployed since December 2004, that he lived with his mother, and that
22   his only income consisted of approximately $1,577 in monthly Social Security benefits. The Bankruptcy
23   Court also found, however, that Traversa had not satisfied the second Brunner prong because there was
24   insufficient evidence that his medical conditions were “likely to persist for a significant portion of the
25   repayment period.” Brunner, 831 F.2d at 396.
26
27            Because § 523(a)(8) exhibits a “clear congressional intent . . . to make the discharge of student
28   loans more difficult than that of other nonexcepted debt,” we have required debtors seeking to
29   discharge student loans to provide evidence “not only of current inability to pay but also of additional,
30   exceptional circumstances, strongly suggestive of continuing inability to repay over an extended period
31   of time.” Brunner, 831 F.2d at 396. In Brunner, we found that the second prong was not satisfied where
32   the debtor was not disabled or elderly, had no dependents, and “[n]o evidence was presented indicating
33   a total foreclosure of job prospects in her area of training.” Id. at 396-97.
34
35           Here, the trial evidence established that Traversa was unemployed and receiving Social Security
36   benefits. Traversa testified that he suffered from depression, sleeping disorders, ADHD, and bipolar


              1
                 The Brunner test was subsequently adopted by the majority of our sister circuits. See, e.g., United States Dep’t of
     Educ. v. Gerhardt (In re Gerhardt), 348 F.3d 89, 91 (5th Cir. 2003); Hemar Ins. Corp. of Am. v. Cox (In re Cox), 338 F.3d 1238,
     1241 (11th Cir. 2003); United Student Aid Funds, Inc. v. Pena (In re Pena), 155 F.3d 1108, 1112 (9th Cir. 1998); Pa. Higher
     Educ. Assistance Agency v. Faish (In re Faish), 72 F.3d 298, 306 (3d Cir. 1995).

                                                                3
 1   disorder, and that these conditions affected his ability to gain and maintain employment. On cross-
 2   examination, Traversa admitted that his treating nurse believed that the medication he was taking for
 3   depression was effective, that the medications he was taking for his sleeping disorders worked
 4   “moderately well,” and that he had never received any documentation of his alleged bipolar disorder.
 5   Traversa further testified that he had suffered from these conditions “throughout [his] life,” including
 6   when he was in college and law school and during his approximately seven years of consecutive
 7   employment prior to law school. Traversa also testified inconsistently about why he lost one of his
 8   post-law school jobs, asserting on direct examination that he was terminated because of his medical
 9   condition, while admitting on cross-examination that he lost the job because of a “budget cut.”
10   Although Traversa introduced a notice from the State of Connecticut Department of Social Services
11   referring to an initial agency determination that he was “unable to work long-term” and eligible for
12   benefits, those documents contained no factual or medical findings with respect to any disability.
13
14           Given Traversa’s prior ability to work while suffering from the same medical conditions at issue
15   here, the inconsistencies in his trial testimony, and the fact that the sole piece of documentary evidence
16   in the trial record contained no information about his medical conditions, it was not error for the
17   Bankruptcy Court to conclude that Traversa had not carried his burden to prove that his alleged medical
18   conditions would render him unable “to repay [his loans] over an extended period of time.” Brunner,
19   831 F.2d at 396.
20
21          With respect to Traversa’s challenge to the denial of his various motions to seal the record, we
22   note that he has failed to identify the particular order or orders he seeks to challenge on appeal.
23   Nonetheless, an independent review of the record reveals no error in the orders disposing of his various
24   motions to seal. We therefore affirm for substantially the same reasons stated by the District Court.
25
26           We have considered Traversa’s remaining arguments and find them to be without merit.
27
28                                              CONCLUSION
29
30          We reject all of Traversa’s claims on appeal. Accordingly, the judgment of the District Court
31   is AFFIRMED.
32
33                                                   FOR THE COURT,
34                                                   Catherine O’Hagan Wolfe, Clerk of Court
35




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