                                                           FILED
                                                            MAY 31 2012
 1                                                      SUSAN M SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 2
                    UNITED STATES BANKRUPTCY APPELLATE PANEL
 3
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )      BAP No.    EC-11-1512-MkHKi
                                   )
 6   TIMOTHY R. TAYLOR,            )      Bk. No.    98-38409
                                   )
 7                  Debtor.        )      Adv. No.   11-02356
     ______________________________)
 8                                 )
     TIMOTHY R. TAYLOR,            )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     U.S. DEPARTMENT OF JUSTICE;   )
12   U.S. DEPARTMENT OF EDUCATION; )
     U.S. DEPARTMENT OF HEALTH AND )
13   HUMAN SERVICES; OFFICE OF THE )
     INSPECTOR GENERAL,            )
14                                 )
                    Appellees.     )
15                                 )
16                      Submitted Without Oral Argument
                                 On May 1, 2012
17
                              Filed – May 31, 2012
18
               Appeal From The United States Bankruptcy Court
19                 for the Eastern District of California
20   Honorable Christopher M. Klein, Chief Bankruptcy Judge, Presiding
21
     Appearances:     Appellant Timothy R Taylor, M.D. pro se on brief;
22                    Benjamin B. Wagner, United States Attorney, and
                      Jeffrey J. Lodge, Assistant United States
23                    Attorney, on brief for Appellees.
24
     Before:   MARKELL, HOLLOWELL and KIRSCHER, Bankruptcy Judges.
25
26        *
           This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.
 1                             INTRODUCTION
 2        Debtor Timothy Taylor (“Taylor”) appeals the bankruptcy
 3   court’s order (1) denying his motion for an order to show cause
 4   re contempt (“Contempt Motion”), and (2) dismissing the adversary
 5   proceeding deemed commenced by the filing of his Contempt Motion.
 6   We MODIFY the dismissal order as stated herein and, as modified,
 7   AFFIRM.
 8                                 FACTS
 9        The key facts are undisputed.    Taylor filed a chapter 71
10   bankruptcy petition in November 1998.    He attached to his
11   petition a document entitled “Declaration Of Timothy R. Taylor In
12   Support Of Petition For Discharge Of Student Loans Under Hardship
13   Code Sec. 523(a)(8)(B)” (“Discharge Declaration”).2   Based on
14   allegations of undue hardship, Taylor requested in his Discharge
15   Declaration that the court discharge his student loan debt.
16   Taylor never served his Discharge Declaration on anyone, and the
17   bankruptcy court never explicitly addressed it.    In January 1999,
18   the chapter 7 trustee filed a report representing that there were
19
20        1
           Unless otherwise indicated, all chapter, section, and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1330 and
21   to the Federal Rules of Bankruptcy Procedure, Rules 1001–9036, in
22   effect prior to the effective date of the Bankruptcy Abuse
     Prevention and Consumer Protection Act of 2005, Pub.L. 109–8, 119
23   Stat. 23 (Apr. 20, 2005). All Civil Rule references are to the
     Federal Rules of Civil Procedure.
24
          2
           Before October 1998, § 523(a)(8) alternately allowed a
25   student loan to be discharged either if it first became due seven
26   years or more before the bankruptcy filing (§ 523(a)(8)(A)), or
     if excepting it from discharge would cause undue hardship
27   (§ 523(a)(8)(B)). Congress amended § 523(a)(8) so that, for
     cases filed after October 7, 1998, the only ground for
28   discharging student loans was undue hardship.

                                     2
 1   no assets to be distributed to creditors.    Shortly thereafter, in
 2   March 1999, the bankruptcy court granted Taylor a discharge by
 3   entering an order (“Discharge Order”) containing the language set
 4   forth in Official Form 18 – the version of that form in effect
 5   between 1991 and 1997.3    The Discharge Order Provided:
 6        IT IS ORDERED that:
 7        1. The above-named debtor(s) is (are) released from all
          dischargeable debts.
 8
          2. Any judgment heretofore or hereafter obtained in any
 9        court other than this court is null and void as a
          determination of the personal liability of the
10        debtor(s) with respect to any of the following:
11        (a) debts dischargeable under 11 U.S.C. § 523;
12        (b) unless heretofore or hereafter determined by order
          of this court to be nondischargeable, debts alleged to
13        be excepted from discharge under clauses (2), (4), (6),
          and (15) of 11 U.S.C. § 523(a);
14
          (c) debts determined by this court to be discharged.
15
          3. All creditors whose debts are discharged by this
16        order and all creditors whose judgments are declared
          null and void by paragraph 2 above are enjoined from
17        instituting or continuing any action or employing any
          process or engaging in any act to collect such debts as
18        personal liabilities of the above-named debtor(s).
19   Discharge Order (Mar. 23, 1999) at p. 1.    In August 1999, the
20   bankruptcy court entered its Final Decree closing Taylor’s
21   bankruptcy case.4
22        But that was not the end of Taylor’s bankruptcy case.    In
23   May 2011, Taylor filed his Contempt Motion, which the bankruptcy
24
          3
           The use of the outdated official form is discussed more
25   fully below. See infra note 8 and accompanying text.
26        4
           In 2007, Taylor filed another bankruptcy case in the United
27   States Bankruptcy Court for the District of Hawaii. That
     bankruptcy case has no bearing on Taylor’s Contempt Motion or
28   this appeal.

                                       3
 1   court deemed to be a complaint commencing an adversary
 2   proceeding.
 3        Taylor named the above-captioned appellees (“Appellees”) as
 4   respondents to his Contempt Motion.    Taylor asserted that the
 5   Appellees had violated the Discharge Order by taking action to
 6   collect on his discharged student loan debts.   The Appellees
 7   filed a motion to dismiss Taylor’s Contempt Motion, arguing that
 8   Taylor’s student loan debt had not been discharged, and thus they
 9   has not violated the Discharge Order by attempting to collect the
10   debt.5
11        Both sides filed additional papers in support of their
12   respective positions, and the court held a hearing on the
13   dismissal motion, after which it issued a memorandum decision
14   essentially agreeing with the Appellees’ position.   Based on its
15   memorandum decision, the court entered on September 19, 2011, an
16   order denying Taylor’s Contempt Motion and dismissing the
17   adversary proceeding.   Taylor timely filed his appeal on
18   September 21, 2011.
19                               JURISDICTION
20        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
21   §§ 1334 and 157(b)(2)(O).   We have jurisdiction under 28 U.S.C.
22   § 158.
23                                  ISSUE
24        Did the bankruptcy court err when it dismissed Taylor’s
25
26        5
           The Appellee’s alternately requested judgment on the
27   pleadings under Civil Rule 12(c). The bankruptcy court did not
     grant any relief on that basis, so we will not discuss it any
28   further.

                                      4
 1   Contempt Motion?
 2                           STANDARD OF REVIEW
 3         We review de novo the bankruptcy court’s dismissal under
 4   Civil Rule 12(b)(6).   Barnes v. Belice (In re Belice), 461 B.R.
 5   564, 572 (9th Cir. BAP 2011).    “When we conduct a de novo review,
 6   ‘we look at the matter anew, the same as if it had not been heard
 7   before, and as if no decision previously had been rendered,
 8   giving no deference to the bankruptcy court’s determinations.’”
 9   Id. (quoting Charlie Y., Inc. v. Carey (In re Carey), 446 B.R.
10   384, 389 (9th Cir. BAP 2011)).
11                               DISCUSSION
12   A.   Applicable Standards For Motions To Dismiss
13         This panel applies the same legal standards to Civil
14   Rule 12(b)(6) motions as do all federal courts.6   In re Belice,
15   461 B.R. at 573.   We therefore accept as true all well-pleaded
16   allegations contained in the plaintiff’s initial pleading, but we
17   need not accept as true “conclusory statements, statements of
18   law, or unwarranted inferences cast as factual allegations.”     Id.
19   (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57     (2007).
20         As the Supreme Court has explained:
21         To survive a motion to dismiss, a complaint must
           contain sufficient factual matter, accepted as true, to
22         state a claim to relief that is plausible on its
           face. . . . A claim has facial plausibility when the
23         plaintiff pleads factual content that allows the court
           to draw the reasonable inference that the defendant is
24         liable for the misconduct alleged. . . . Threadbare
           recitals of the elements of a cause of action,
25         supported by mere conclusory statements, do not
           suffice.
26
27
           6
           Rule 7012(b) makes Civil Rule 12(b) applicable in adversary
28   proceedings.

                                       5
 1   Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)
 2   (citations and internal quotation marks omitted).
 3         Importantly, we may use judicially noticed facts to
 4   establish that a complaint does not state a claim for relief, see
 5   Intri–Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052
 6   (9th Cir. 2007), and we properly can take judicial notice of
 7   documents filed in Taylor’s underlying bankruptcy case.     O’Rourke
 8   v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955,
 9   957–58 (9th Cir.1989).   The Panel also may consider exhibits
10   attached to and referenced in the complaint.   Stengel v.
11   Medtronic Inc.,    676 F.3d 1159, ___, 2012 WL 1255040, at *7 (9th
12   Cir. 2012); Durning v. First Boston Corp., 815 F.2d 1265, 1267
13   (9th Cir. 1987).
14   B.   Merits of Appeal
15         Section 524 governs the effect of a discharge in bankruptcy.
16   In relevant part, this section specifies that the discharge
17   “operates as an injunction against the commencement or
18   continuation of an action, the employment of process, or an act,
19   to collect, recover or offset” a discharged debt.   In turn, § 523
20   governs the dischargeability of particular types of debt, and
21   § 523(a)(8) specifically provides that most types of student loan
22   debt are nondischargeable unless the nondischargeability of that
23   debt would cause the debtor undue hardship.    As this Panel
24   previously has explained, § 523(a)(8) “furthers congressional
25   policy to ensure that such loans, extended solely on the basis of
26   the student’s future earnings potential, cannot be discharged by
27   recent graduates who then pocket all of the future benefits
28   derived from their education.”   Nys v. Educ. Credit Mgmt. Corp.

                                       6
 1   (In re Nys), 308 B.R. 436, 441 (9th Cir. BAP 2004).
 2        Taylor contends that his student loan debt was discharged
 3   under § 523(a)(8), and that the Appellees violated the Discharge
 4   Order, which enjoined them from attempting to collect the
 5   discharged debt.7   Taylor’s contention hinges on a single
 6   assumption: that he previously obtained a determination that his
 7   student loans were dischargeable under § 523(a)(8).   In assuming
 8   that the bankruptcy court previously determined the
 9   dischargeability of his student loans, Taylor relies on the
10   Discharge Order.    According to Taylor, the Discharge Order on its
11   face provided for the discharge of all of his student loan debt.
12   Taylor in essence claims that, by using the Official Form 18
13   discharge order in effect between 1991 and 1997 (“Old Official
14   Form”) instead of the Official Form 18 discharge order in effect
15   thereafter (“New Official Form”), the bankruptcy court granted
16   him a broader discharge that included a discharge of his student
17   loan debt.8
18        Taylor’s claim is refuted by the Advisory Committee Notes
19   (“Notes”) accompanying Official Form 18.   The Notes make it clear
20   that no substantive change in the scope of the discharge was
21
          7
22         According to Taylor, some of his student loans were “HEAL”
     loans, which are governed by 42 U.S.C. § 292f(g), instead of
23   § 523(a)(8). We discuss Taylor’s HEAL loans below, at the
     conclusion of our discussion of Taylor’s non-HEAL student loans.
24
          8
           Rule 4004(e) directs bankruptcy courts to issue discharge
25   orders conforming to the official form. Apparently, at the time
26   the bankruptcy court granted Taylor’s discharge in 1999, it had
     not yet switched over from the Old Official Form to the New
27   Official Form. However, as explained below, the use of the Old
     Official Form did not substantively alter the scope of Taylor’s
28   discharge.

                                       7
 1   intended by the 1997 amendment of Official Form 18.   Rather, the
 2   Notes explain that the amendments were made to simplify the form
 3   and to make the preexisting meaning, scope and effect of the
 4   standard bankruptcy discharge more understandable:
 5        The discharge order has been simplified by deleting
          paragraphs which had detailed some, but not all, of the
 6        effects of the discharge. These paragraphs have been
          replaced with a plain English explanation of the
 7        discharge. This explanation is to be printed on the
          reverse of the order, to increase understanding of the
 8        bankruptcy discharge among creditors and debtors.
 9   Advisory Committee Note accompanying the 1997 amendment of
10   Official Form 18 (West 2011).9
11        In any event, the language in the Old Official Form simply
12   is not susceptible to Taylor’s interpretation.    Taylor argues
13   that the following text from that form should be construed as
14   discharging his student loans:
15        1.   The above-named debtor is released from all
               dischargeable debts.
16
          2.   Any judgment heretofore or hereafter obtained in
17             any court other than this court is null and void
               as a determination of the personal liability of
18             the debtor with respect to any of the following:
19             (a) debts dischargeable under 11 U.S.C. § 523; . . . .
20   Old Official Form (West 1997) (emphasis added).   Taylor’s
21   argument apparently is based on the following logic: the language
22   of the Old Official Form provided for the discharge of all
23   “dischargeable” debts, and his debt was dischargeable under
24   § 523(a)(8) because he had proven by way of his Discharge
25
26        9
           Indeed, the New Official Form’s plain-language explanation
27   makes it abundantly clear that “[d]ebts for most student loans”
     generally are nondischargeable in chapter 7. See reverse side of
28   Official Form 18 (West 2011).

                                      8
 1   Declaration that excepting his student loan debt from discharge
 2   would cause him undue hardship.   But Taylor’s logic flies in the
 3   face of the plain and well-accepted meaning of § 523(a)(8).    It
 4   is beyond cavil that student loan debt covered by § 523(a)(8) is
 5   nondischargeable, unless and until the debtor obtains the
 6   bankruptcy court’s determination that such debt is dischargeable
 7   based on a court finding of undue hardship.   As one leading
 8   bankruptcy treatise explained:
 9        Section 523(a)(8) is the “hardship” provision, which
          allows the court to discharge an otherwise
10        nondischargeable student loan if excepting the debt
          from discharge will impose an undue hardship on the
11        debtor or the debtor’s dependents. This exemption from
          the exception to discharge requires the bankruptcy
12        judge to determine whether payment of the debt will
          cause undue hardship on the debtor and his dependents,
13        thus defeating the “fresh start” concept of the
          bankruptcy laws. There may well be circumstances that
14        justify failure to repay a student loan, such as
          illness or incapacity. When the court finds that such
15        circumstances exist, it may order the debt discharged.
16        The Supreme Court has stated that section 523(a)(8) is
          “self-executing” and that “[u]nless the debtor
17        affirmatively secures a hardship determination, the
          discharge order will not include a student loan debt.”
18        In other words, student loan debt remains due until
          there is a [court] determination that the loan is
19        dischargeable.
20   4 Collier On Bankruptcy ¶ 523.14[2] (Alan N. Resnick and Henry J.
21   Sommer eds. 16th ed. 2011) (emphasis added) (quoting Tenn.
22   Student Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004)).
23        Taylor never obtained a bankruptcy court finding that his
24   student loan debt would impose upon him undue hardship or a court
25   determination that his student loans were exempt from the
26   exception to discharge covering his student loans.   Taylor
27   apparently believes that the Old Official Form included an
28   exemption from the general nondischargeability of student loan

                                       9
 1   debt and an implicit finding that excepting the student loan debt
 2   from discharge would cause undue hardship.    But we simply cannot
 3   and will not read into the Old Official Form such an exemption
 4   and finding, particularly when neither the exemption nor the
 5   finding are apparent on the face of the form.    To accept Taylor’s
 6   view would stand § 523(a)(8) on its head, and undermine the plain
 7   meaning and purpose of the statute.
 8        Taylor also claims that, under United Student Aid Funds,
 9   Inc. v. Espinosa, 130 S.Ct. 1367 (2010), this court should hold
10   that his student loan debts were discharged.    But Espinosa does
11   not help Taylor.   Taylor would have us hold that a confirmed
12   chapter 13 plan providing for the discharge of student loan debt
13   (as was at issue in Espinosa) is the functional equivalent of the
14   Discharge Declaration he attached to his chapter 7 petition.     But
15   there is no equivalency between his Discharge Declaration and a
16   confirmed chapter 13 plan.   As Espinosa explained, a proposed
17   chapter 13 plan becomes effective when the bankruptcy court
18   enters an order confirming that plan, “and will result in a
19   discharge of the debts listed in the plan if the debtor completes
20   the payments the plan requires . . . .”   Id. 1374 (citing
21   §§ 1324, 1325, 1328(a)).
22        Taylor has not cited us to any statute or rule that would
23   give his Discharge Declaration a legal effect similar to a
24   confirmed plan.    Nor are we aware of any.   The key here is that
25   the bankruptcy court never took any judicial action granting the
26   request Taylor made “for discharge of [his] student loan debts.”
27   Discharge Declaration (Nov. 30, 1998) at ¶ 19.
28        Taylor’s other arguments on appeal similarly lack merit.

                                      10
 1   All of them are based on the premise that he obtained a finding
 2   of undue hardship and a determination of nondischargeability,
 3   which he did not, as we have held above.10
 4         In sum, nothing in the Discharge Order or elsewhere in the
 5   record would have allowed the bankruptcy court, or this Panel on
 6   appeal, to conclude that Taylor’s student loan debt had been
 7   discharged.      The discharge injunction under § 524 thus did not
 8   apply to Taylor’s student loan debt, so there was no violation of
 9   a court order on which the bankruptcy court could have held the
10   Appellees in contempt.      Accordingly, the bankruptcy court did not
11   err in denying Taylor’s Contempt Motion.
12   C.   Other Matters
13         1.     HEAL Loans
14         The parties’ papers indicate that at least some of Taylor’s
15   student loans were lent to him under the Health Education
16   Assistance Loan Act (“HEAL”).      HEAL loans are subject to even
17   more stringent requirements before they can be discharged in
18   bankruptcy.      See 42 U.S.C. § 292f(g);11 see also 4 Collier On
19
20         10
           The parties and the bankruptcy court spent a great deal of
     time and effort discussing the procedures that should be utilized
21   to obtain a discharge of student loan debt and also discussing
22   the nature and extent of notice that must be given. But these
     issues are irrelevant to our analysis and resolution of this
23   appeal. No amount of notice given and no procedure followed
     changes the dispositive fact that the bankruptcy court never made
24   a finding of undue hardship and never granted Taylor’s request
     for a discharge of his student loans.
25
           11
26              42 U.S.C. § 292f(g) provides:

27         (g) Conditions for discharge of debt in bankruptcy
           Notwithstanding any other provision of Federal or State
28                                                       (continued...)

                                         11
 1   Bankruptcy, supra, at ¶ 523.14[7].
 2        Taylor argued both in the bankruptcy court and on appeal
 3   that, under the differing standards and rules applicable to HEAL
 4   loans, they are subject to discharge unless the HEAL creditor
 5   takes affirmative action in the debtor’s bankruptcy case.    In
 6   effect, Taylor claims that the nondischargeability of HEAL loans,
 7   unlike other student loans, is not self-executing.    Again, Taylor
 8   has it wrong.   The nondischargeability of HEAL loans is self-
 9   executing, just like other student loans.    See   U.S. v. Wood,
10   925 F.2d 1580, 1582-83 (7th Cir. 1991).    In other words, HEAL
11   loans are not dischargeable in bankruptcy, unless the bankruptcy
12   court determines that the debtor has pleaded and proven all three
13   of the requirements for discharge set forth in 42 U.S.C.
14   § 292f(g).   See, e.g., Woody v.    U.S. Dep’t of Justice (In re
15   Woody), 494 F.3d 939, 955 (10th Cir. 2007) (holding that debtor’s
16   HEAL loans were not dischargeable because debtor had not met his
17
          11
           (...continued)
18        law, a debt that is a loan insured under the authority
19        of this subpart may be released by a discharge in
          bankruptcy under any chapter of Title 11, only if such
20        discharge is granted--

21        (1) after the expiration of the seven-year period
          beginning on the first date when repayment of such loan
22
          is required, exclusive of any period after such date in
23        which the obligation to pay installments on the loan is
          suspended;
24
          (2) upon a finding by the Bankruptcy Court that the
25        nondischarge of such debt would be unconscionable; and
26
          (3) upon the condition that the Secretary shall not
27        have waived the Secretary’s rights to apply subsection
          (f) of this section to the borrower and the discharged
28        debt.

                                        12
 1   burden of proof to establish one of the elements necessary to
 2   enable the court to discharge a HEAL loan – unconscionability);
 3   Rice v. United States (In re Rice), 78 F.3d 1144, 1150-52 (6th
 4   Cir. 1996) (same).
 5        In short, regardless of whether Taylor’s student loans were
 6   HEAL Loans, our analysis and resolution of this appeal does not
 7   change.   The Appellees have not violated the discharge
 8   injunction, so the bankruptcy court properly denied Taylor’s
 9   Contempt Motion.
10        2.   Equity and § 105(a)
11        Taylor also has claimed that, under general principles of
12   equity and § 105(a), this Panel should hold that the Discharge
13   Order discharged his student loan debt.   But neither equity nor
14   § 105(a) entitle either this Panel or the bankruptcy court to
15   depart from the result mandated by statute.   Both the bankruptcy
16   court and this Panel must exercise their authority within the
17   confines of the laws that Congress has enacted.   See Saxman v.
18   Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1175 (9th
19   Cir. 2003) (holding that bankruptcy court’s equitable powers and
20   § 105(a) do not give court “roving commission to do equity” when
21   determining the dischargeability of student loans; rather, the
22   court must satisfy itself that the requirements of § 523(a)(8)
23   have been met); see also In re Rice, 78 F.3d at 1151 (holding
24   that neither “equity” nor § 105(a) permit a bankruptcy court to
25   deviate from Congress’s statutory scheme governing the
26   nondischargeability of student loans).
27        3.   Taylor’s In Forma Pauperis Status
28        On November 14, 2011, a BAP motions panel issued an order

                                     13
 1   transferring this appeal under Ninth Circuit BAP Rule 8001(e)-1
 2   to the United States District Court for the Eastern District of
 3   California (“District Court”) for the limited purpose of
 4   obtaining a ruling from the District Court on Taylor’s
 5   application to proceed in forma pauperis.   In response, on
 6   November 15, 2011, the District Court entered an order granting
 7   Taylor’s in forma pauperis request, thereby effectively waiving
 8   the requirement that Taylor pay the $298 fee for filing his
 9   appeal.
10        Subsequently, on December 1, 2011, the bankruptcy court
11   issued a certification under 28 U.S.C. § 1915(a)(3) stating that
12   this appeal is frivolous and was not taken in good faith.
13   Appellees claim in their appeal brief that, in light of the
14   bankruptcy court’s certification, “Taylor cannot proceed in forma
15   pauperis and the appeal must be dismissed.”   We disagree.
16   Regardless of the bankruptcy court’s belated certification, we
17   have no jurisdiction or authority to review the District Court’s
18   order granting Taylor in forma pauperis status.   In other words,
19   even if we were to assume that the District Court improvidently
20   granted in forma pauperis status to Taylor, we are in no position
21   to either ignore or second-guess the District Court’s decision.
22        The Appellees also suggest that, under 28 U.S.C.
23   § 1915(e)(2), this Panel should dismiss Taylor’s appeal.     Again,
24   we disagree.   The Panel has no authority or duties under
25   28 U.S.C. § 1915 because it is not a “court of the United States”
26   within the meaning of 28 U.S.C. § 451.   See Determan v. Sandoval
27   (In re Sandoval), 186 B.R. 490, 496 (9th Cir. BAP 1995); Perroton
28   v. Gray (In re Perroton), 958 F.2d 889, 896 (9th Cir. 1992).

                                     14
 1        In any event, our affirmance of the order on appeal renders
 2   moot Appellees’ arguments for dismissal of this appeal.
 3        4.   Modification Of Dismissal Order
 4        At the outset of its memorandum decision, the bankruptcy
 5   court made a statement that arguably could lead one to conclude
 6   that the court treated Taylor’s Contempt Motion as a complaint to
 7   determine the dischargeability of his student loan debt:
 8        This court has construed the action to be in the nature
          of seeking a determination whether student loan debts
 9        exceeding $435,000 are excepted from discharge by
          virtue of 11 U.S.C. § 523(a)(8).
10
11   Mem. Dec. (Sept. 16, 2011) at p. 1.
12        However, nothing else in its memorandum decision indicates
13   that the bankruptcy court actually treated the Contempt Motion as
14   a dischargeability action.   In fact, later on in its memorandum
15   decision, the court made the following statement inconsistent
16   with its earlier construction of the Contempt Motion:
17        This court has located no case where a debtor has been
          permitted to maintain [a nondischargeability] action
18        more than ten years after the bankruptcy case was
          filed. If such an action were to be filed by the
19        debtor in this case, the facts asserted in the unsigned
          declaration that was appended to the debtor’s petition,
20        schedules, and statement of financial affairs would be
          largely irrelevant. Thus, even if this action were
21        construed as an action under § 523(a)(8), it would need
          to be dismissed.
22
23   Mem. Dec. (Sept. 16, 2011) at pp. 6-7 (emphasis added).
24   Similarly, in its December 1, 2011 certification under 28 U.S.C.
25   § 1915(a)(3), the bankruptcy court stated that Taylor never
26   presented for judicial decision the question of whether his
27   student loans should be discharged under § 523(a)(8).
28        We also note that Taylor himself strenuously argued on

                                     15
 1   appeal that his Contempt Motion was not a complaint to determine
 2   dischargeability of debt.   We agree with Taylor on this point.
 3   We know of no reason why the Contempt Motion should be construed
 4   as anything other than what it purported to be on its face.
 5        Notwithstanding the initial statement in the bankruptcy
 6   court’s memorandum decision, based on a fair reading of the
 7   entire record, we conclude that the bankruptcy court did not
 8   treat and dispose of the Contempt Motion as an action to
 9   determine the dischargeability of Taylor’s student loan debt.
10        Nonetheless, the initial language in the memorandum
11   decision, when read in conjunction with the broad dispositive
12   language in the bankruptcy court’s order dismissing the Contempt
13   Motion, raises the concern that the bankruptcy court’s dismissal
14   order erroneously could be construed as a dismissal of a
15   nondischargeability action.    We thus consider it appropriate to
16   modify the bankruptcy court’s dismissal order to clarify that it
17   should not be construed as the dismissal of a nondischargeability
18   action.   See Rule 8013 (authorizing this Panel to modify
19   bankruptcy court orders and judgments).    Accordingly, we hereby
20   order that the bankruptcy court’s dismissal order, entered
21   September 19, 2011, shall be and is MODIFIED to include the
22   following statement: “This order shall not be construed as the
23   dismissal of a nondischargeability action.”
24                                 CONCLUSION
25        For the foregoing reasons, we MODIFY the bankruptcy court’s
26   dismissal order as set forth above, and as modified, we AFFIRM.
27
28

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