            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                                        FILED
                                                                                       June 26, 2008

                                          No. 07-40991                           Charles R. Fulbruge III
                                        Summary Calendar                                 Clerk


In the Matter Of: DANNY MICHAEL OSTROM

------------------------------------------------------------------------------------------------------
DANNY MICHAEL OSTROM,

                                                          Appellant-Cross Appellee
v.

EDUCATIONAL CREDIT MANAGEMENT CORP.,

                                                          Appellee- Cross Appellant


                      Appeal from the United States District Court
                            for the Eastern District of Texas
                                U.S.D.C. No. 4:06-CV-163


Before REAVLEY, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
        This appeal arises out of Appellant-Cross Appellee Danny Michael
Ostrom’s (“Ostrom”) attempts to discharge his student-loan debt through a
bankruptcy proceeding. The bankruptcy court conducted an adversarial hearing
on the matter and denied Ostrom’s petition to discharge the debt based on a
factual finding that Ostrom had not demonstrated undue hardship as required


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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for a discharge. Finding no clear error in the bankruptcy court’s determination,
the district court affirmed. We AFFIRM for the same reasons.
                     Factual and Procedural History
      In 1965, Ostrom, then 15-years-old, began working as a tile finisher. He
continued in this employment until 1990, when he was hospitalized due to a
bacterial infection. This affliction prevented Ostrom from continuing to work as
a tile finisher and led him to gain roughly 200 pounds, which caused his health
problems to worsen. In 1990, the Social Security Administration determined
Ostrom to be disabled, and he began receiving disability payments.
      Hoping to find new employment, Ostrom pursued other fields and
ultimately returned to school to study social work and counseling. Ostrom
attended the University of North Texas from 1994 through 2002; there he
obtained a Bachelor of Science degree in Social Work and a Master of Science
degree in Counseling. To fund this education, Ostrom took 17 student loans. In
2003 he consolidated these loans into a single unsubsidized federal consolidation
student loan by executing a promissory note in the amount of $68,945.30.
Appellee-Cross Appellant Educational Credit Management Corporation
(“ECMC”) holds the interest in this note.
      During his studies, Ostrom discovered that he also suffered sleep-related
health problems. In 1999, he was diagnosed with sleep apnea, a condition that
causes him to stop breathing during sleep. As treatment, Ostrom received a
breathing apparatus to wear while sleeping; however because Ostrom’s weight
forces him to sleep lying face-down, the apparatus, which fits as a mask, proved
unusable.   Ostrom’s sleep conditions compounded in 2002 when he began
suffering from insomnia. Ostrom contends that this insomnia is effectively
untreatable in conjunction with his sleep apnea because any drugs that would

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put him to sleep would also prevent him from awakening when his breathing
stopped. As a result of his insomnia, Ostrom experiences impaired concentration
and decreased functionality.
       Despite these afflictions, Ostrom completed his degree programs and
began his brief counseling career. From April through November of 2002,
Ostrom was employed as an independent counselor for which he was paid
$18,000.00. Subsequently, Ostrom was offered a counseling position at a state
prison in Wyoming, however, Ostrom declined the job out of fear that the effects
of his sleeping disorders would impede his counseling abilities. Ostrom sought
no further employment in the field of counseling and now serves as the primary
care giver to his elderly mother; he receives no compensation for this service.
        On March 10, 2004, Ostrom filed a petition for relief under Chapter 7 of
the Bankruptcy Code, and on June 14, 2004, he filed the adversarial proceeding
underlying this appeal, seeking discharge of his student loan debt under 11
U.S.C. § 523(a)(8). Ostrom has never made payments on his loans. As of
September 21, 2005, Ostrom owed $74,013.74 in loan debt, and the sum was
accruing interest at a rate of 4%.
       The bankruptcy court held a hearing on the issue on December 6, 2005,
and denied Ostrom’s petition to discharge his student loan debt in a ruling read
into open court on February 28, 2006. It entered this ruling as a final judgment
on March 24, 2006. Ostrom appealed the matter to the district court, which
affirmed the bankruptcy court’s judgment for the reasons stated by the
bankruptcy court. Ostrom then appealed to this court.1



       1
         ECMC also cross appealed an aspect of the bankruptcy court’s ruling, but, as discussed
infra, because we affirm the judgment below we need not address ECMC’s cross appeal.

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                                 Analysis
      Ostrom invokes Section 523(a)(8) of the Bankruptcy Code as the basis for
discharging his student loan debt. Section 523(a)(8) excepts from discharge a
loan made, insured, or guaranteed by a governmental unit, or made by a
program funded in whole or in part by a governmental unit, unless excepting
such debt from discharge will impose an undue hardship on the debtor. 11
U.S.C. § 523(a)(8). This provision covers Ostrom’s federal student loans, so to
receive a discharge Ostrom must demonstrate that his student loan debt imposes
an undue hardship upon him. See In re Gerhardt, 348 F.3d 89, 91 (5th Cir.
2003).
      As the measure for “undue hardship” in this context, we have adopted the
test articulated in the Second Circuit’s decision in Brunner v. New York State
Higher Education Service Corp., 831 F.2d 295 (2d Cir. 1987). See In re Gerhardt,
348 F.3d at 91. Under the Brunner test, to show undue hardship a debtor must
demonstrate three elements: (1) that the debtor cannot maintain, based on
current income and expenses, a minimal standard of living for himself and his
dependents if forced to repay the loan, (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 loan, and (3) that the debtor has made good-faith
efforts to repay the loan. Id.
      Applying the Brunner test, the bankruptcy court found that Ostrom
satisfied the first and third prongs but that Ostrom had not met the second
prong because he presented no evidence, other than his own testimony, that his
impairment was likely to persist well into the future and prevent him from




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earning income sufficient to pay his student loans. The district court affirmed
this finding, and Ostrom now challenges it before this court.
      “In the bankruptcy appellate process, we perform the same function as did
the district court: Fact findings of the bankruptcy court are reviewed under a
clearly erroneous standard and issues of law are reviewed de novo.” In re
Berryman, 159 F.3d 941, 943 (5th Cir. 1998). Here Ostrom contents only that
the bankruptcy court erred in its factual finding that he could not fulfill the
second Brunner prong, so we review that finding for clear error. “A factual
finding is not clearly erroneous if it is plausible in the light of the record read as
a whole.” In re. Ramba, Inc., 416 F.3d 394, 402 (5th Cir. 2005).
      The bankruptcy court’s finding was not implausible in light of the record
as a whole. The bankruptcy court relied on specific record evidence, and the lack
thereof, to conclude that Ostrom had not established that he would be unable to
make loan payments in the future. Specifically, the bankruptcy court noted that:
(1) Ostrom presented no evidence, other than his own testimony, that any
impairments to his earnings are likely to persist into the future, (2) Ostrom
introduced no evidence that the effects of his sleeping problems preclude him
from serving as a counselor, and (3) Ostrom was able to obtain a master’s degree
and serve as a private counselor despite his sleeping problems. Based on this
record evidence, the bankruptcy court plausibly concluded that Ostrom had not
demonstrated that his current financial state would continue well into the
future, so it did not clearly err in finding that Ostrom had not fulfilled the
second Brunner prong. Thus, we affirm the bankruptcy court’s findings.
      Because we can affirm the denial of Ostrom’s petition on these grounds,
we need not address ECMC’s arguments that the district court erred in


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affirming the bankruptcy court’s finding that Ostrom satisfied the third prong
of the Brunner test.
                                Conclusion
For the foregoing reasons, we AFFIRM the judgment below.




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