                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   October 9, 2008
                                                                  Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                       Clerk of Court




    In re:

    ROXANN ROE,

              Debtor.


    ROXANN ROE,
                                                        No. 08-4022
              Plaintiff-Appellant,             (D.C. No. 2:07-CV-00794-BSJ)
                                                          (D. Utah)
    v.

    COLLEGE ACCESS NETWORK;
    EDUCATIONAL CREDIT
    MANAGEMENT CORPORATION,
    ECMC; UTAH HIGHER
    EDUCATION AUTHORITY,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Appellant Roxann Roe, proceeding pro se, filed for bankruptcy after

borrowing approximately $88,000 to attend college. Because her student loans

could not be discharged absent a finding of undue hardship as provided by

11 U.S.C. § 523(a)(8), she brought an adversary proceeding in the bankruptcy

court to determine whether she satisfied the standard. The bankruptcy court

concluded she did not, and therefore, her loans could not be discharged. The

district court affirmed. We now affirm as well.

                                         I

      Ms. Roe graduated from college in 1994 with a bachelor of science degree

in Middle East studies. She also holds an associate’s degree and has taken

graduate level classes online to become a teacher. She worked part-time as an

interpreter until 1995, and has since earned money by delivering newspapers and

acting as a movie-extra two to five times a year. Her movie roles pay $72.50 per

day and require that she work between two and twelve hours each day, although

she has twice worked longer. Despite these jobs, however, Ms. Roe claims to be

unable to work. Indeed, she has submitted no job applications within the past ten

years and has not been employed on a full-time basis since 1986. As a single

mother of two children, ages 17 and 12, Ms. Roe collects $623 in Supplemental

Security Income (SSI) and $385 from Aid to Families with Dependent Children

every month. She also receives $135 in food stamps each month. She once


                                        -2-
received a lump sum of $6,000 in back SSI benefits and $10,000 as a settlement

for injuries sustained in a car accident. She has never made any payments on her

student loans, has exhausted her available forbearances and deferments, and has

declined loan consolidation.

      After hearing testimony from Ms. Roe, the bankruptcy court concluded that

requiring her to repay her student loans would not impose an undue hardship.

The court reasoned that under Brunner v. New York State Higher Education

Services Corp., 831 F.2d 395, 396 (2d Cir. 1987) (per curiam), Ms. Roe was

maintaining a minimal standard of living but failed to show that her impoverished

circumstances were likely to persist or that she had acted in good faith to repay

her loans. Without providing any independent analysis, the district court

affirmed. Ms. Roe appealed, arguing that her state of affairs is unlikely to change

on account of her medical condition, and that she acted in good faith.

                                         II

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

conclusions of law de novo. Alderete v. Educ. Credit Mgmt. Corp.

(In re Alderete), 412 F.3d 1200, 1204 (10th Cir. 2005). Under the Bankruptcy

Code, government backed student loans cannot be discharged unless the loans

impose an undue hardship. See 11 U.S.C. § 523(a)(8). To evaluate whether an

undue hardship exists, we adopted the three-part test articulated in Brunner,

which requires a debtor to show:

                                         -3-
      (1) that the debtor cannot maintain, based on current income and
      expenses, a “minimal” standard of living 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.

Educ. Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302, 1307 (10th Cir. 2004)

(quoting Brunner, 831 F.2d at 396). If a debtor fails to show all three elements,

there is no undue hardship and the loans cannot be discharged. Id.

      Ms. Roe argues the bankruptcy court erred in finding that she failed to

satisfy the second and third elements of the Brunner test. She claims she satisfied

the second element by discussing her medical condition, which is an additional

circumstance indicating that her impoverished lifestyle is likely to persist. She

claims she satisfied the third element by not immediately seeking to discharge her

student loans, but instead keeping them in deferment or forbearance as long as

possible. We reject both contentions.

      “[A] permanent medical condition will certainly contribute to the

unlikelihood of a debtor earning enough money to repay her student loan debt,”

but such a condition is not a prerequisite to discharging the debt. Id. at 1311.

Ms. Roe, however, relies on her medical condition to show that she will be unable

to repay her debt, despite failing to produce any evidence of any diagnosed

medical condition in the bankruptcy court. Indeed, she was limited to her own

testimony of pain in her neck and back, numbness in her legs and feet, and

                                         -4-
radiating pain in her arm. Although she also claimed to suffer from fear, racing

heartbeats, high blood pressure, and carpal tunnel syndrome, she admitted that no

doctor had ever told her she could not work. Rather, she stated that she must take

a ten to fifteen-minute break every hour. Additionally, she testified that she

home-schools her daughter and can sit, stand, walk, visit her father, and do just

about anything else she likes. Perhaps most importantly, Ms. Roe failed to submit

any evidence of a prognosis of her stated medical condition, which, at least in

part, compelled the bankruptcy court to conclude that she failed to satisfy the

second element of Brunner.

      We perceive no error in the court’s judgment. Ms. Roe submitted only her

own testimony concerning her medical condition, without any professional

diagnosis or prognosis to show how her condition or symptoms might affect her

ability to work in the future. Although she insists that the Social Security

Administration found her disabled, there was no evidence of this determination

properly before the bankruptcy court, and the court offered no opinion on the

issue. Consequently, we will not consider this issue for the first time on appeal.

See Robinson v. Tenantry (In re Robinson), 987 F.2d 665, 669 (10th Cir. 1993)

(per curiam) (“A reviewing court may not . . . decide factual issues not addressed

by the bankruptcy court.”). And absent any diagnosed medical condition or

prognosis indicting that her state of affairs is likely to persist, Ms. Roe fails to

satisfy the second element of the Brunner test.

                                           -5-
      Nevertheless, even if Ms. Roe could satisfy the second element of Brunner,

she cannot show the third element – that she acted in good faith to repay her

loans. Ms. Roe argues that she exercised good faith by not immediately seeking

to discharge her loans and instead exhausting her available deferments and

forbearances. Although these are certainly factors to be considered in assessing

good faith, the inquiry also “requires determining whether a debtor’s

circumstances are a result of factors beyond her reasonable control.” Polleys,

356 F.3d at 1311 (quotation omitted). The bankruptcy court found that Ms. Roe

had not acted in good faith because she had not applied for a job in over eleven

years and had never made a payment on her student loans, despite having received

two sizeable sums of money. We agree with this assessment.

      “[T]he failure to make a payment, standing alone, does not establish a lack

of good faith.” Id. Courts should consider additional factors such as whether the

debtor immediately sought to discharge her student loans or opted to consolidate

or defer her loans. Id. at 1311-12. Courts also ought to consider whether the

debtor is “actively minimizing current household living expenses and maximizing

personal and professional resources.” Id. at 1312. Additionally, courts should

assess whether the debtor is “attempting to abuse the student loan system” by

seeking to discharge her debt. Id. (quotation omitted). A debtor who “willfully

contrives a hardship in order to discharge student loans should be deemed to be

acting in bad faith.” In re Alderete, 412 F.3d at 1206 (quotation omitted).

                                         -6-
      Ms. Roe claims she acted in good faith by keeping her loans in deferment

or forbearance as long as possible, rather than seeking to discharge them as soon

as they became due. Yet she also acted in ways that foreclose a finding of good

faith. For example, she received two lump sum payments totaling $16,000 but

used none of it to pay down her loans. Instead, she spent nearly $1,000 on dance

lessons and approximately $4,000 on orthodontic work; she used the remainder to

buy essentials, pay bills, and repay family and friends. Her choice to forgo her

student-loan payments in favor of dance lessons and braces is not dispositive, but

because it was a decision within her reasonable control that negatively impacted

her ability to repay her loans, it suggests she did not act in good faith.

      Perhaps more revealing, however, is Ms. Roe’s failure to maximize her

personal and professional resources. Indeed, despite having two college degrees

and potentially invaluable experience as an interpreter for Iraqi refugees, Ms. Roe

has not applied for a job in at least ten years and has not held a full-time job since

1986. Moreover, since 1995, she has completely failed to make any use of her

education or experience, which has apparently resulted in her losing the

translation skills she acquired as an interpreter. These facts demonstrate that she

has not attempted to maximize (or even use) her personal and professional

resources. Ms. Roe responds that her medical condition precludes her from

working, but we have already held that she failed to show her medical condition

prevented her from working. The argument is unavailing.

                                          -7-
      Still, Ms. Roe adds that she did not act in bad faith by refusing to

consolidate her loans. She asserts the consolidation program available to her – an

income-contingent repayment plan – would itself impose an undue hardship,

because she would remain liable for interest accrued during the repayment period,

which, after amortization, could exceed the original loan amounts. Her argument

misses the point. The undue-hardship analysis evaluates whether a debtor’s loan

debt may be discharged, not whether a debtor should participate in a repayment

plan. Because a debtor’s willingness to participate in a repayment plan is “an

important indicator of good faith,” id. (quotation omitted), Ms. Roe’s refusal to

consolidate her loans is one more factor indicating a lack of good faith. This is

especially true where she conceded she could pay the consolidated monthly

payment, which could be as little as zero to five dollars. This and the other

relevant factors already discussed compel us to agree with the bankruptcy court

that Ms. Roe did not act in good faith to repay her loans. Consequently, she fails

to satisfy the third element of the Brunner test and cannot show an undue

hardship. Thus, her student loans are not subject to discharge.

      The judgment of the bankruptcy court is AFFIRMED. Ms. Roe’s motion to

proceed on appeal in forma pauperis is GRANTED.

                                                    Entered for the Court


                                                    Timothy M. Tymkovich
                                                    Circuit Judge

                                         -8-
