            United States Bankruptcy Appellate Panel
                         FOR THE EIGHTH CIRCUIT

                                   _______________

                                     No. 10-6017
                                   _______________

In re: Kellie K. Sederlund, also         *
known as Kelly K. Sederlund,             *
                                         *
      Debtor                             *
                                         *
Kellie K. Sederlund, also known as       *   Appeal from the United States
Kelly K. Sederlund,                      *   Bankruptcy Court for the
                                         *   District of Minnesota
      Plaintiff - Appellant              *
                                         *
            v.                           *
                                         *
Educational Credit Management            *
Corporation                              *
                                         *
      Defendant - Appellee               *

                                   _______________

                          Submitted: September 22, 2010
                             Filed: November 1, 2010
                                _______________

Before FEDERMAN, VENTERS and NAIL, Bankruptcy Judges

FEDERMAN, Bankruptcy Judge
      Debtor Kellie K. Sederlund appeals from the Order of the Bankruptcy Court1
holding that her student loans should not be discharged pursuant to 11 U.S.C. §
523(a)(8). For the reasons that follow, we AFFIRM.

                             FACTUAL BACKGROUND

       Debtor Kellie K. Sederlund is forty-two years old. She has no physical, mental,
or psychological disability. She began her college education in 1986 and, in March
1992, earned a Bachelor of Arts degree in Psychology from the University of
Minnesota - Twin Cities. Although she worked throughout college, she funded her
education, in part, through student loans. In March 1992, she consolidated all of her
student loans, in the amount of $16,649.70, with Sallie Mae Loan Servicing
Association. Over the next twelve years, she paid a total of $11,825.10 against the
student loans. Her last payment was in 2004. Since that time, she has received
forbearances and economic hardship deferments from the loan holders. ECMC now
holds the consolidated loan, which totaled approximately $47,000 at the time of trial.

       As discussed in more detail below, the Debtor never obtained employment in
her field of study, but has held several jobs over the years, mostly at law firms and
with the food service industry. She has also had periods of unemployment. The
Debtor is unmarried and has no children or dependents. Since 2004, the Debtor has
lived with her boyfriend, who pays more than half of their household expenses.

      The Debtor filed a Chapter 7 bankruptcy petition on December 11, 2008, and
received a general discharge on March 13, 2009. On March 2, 2009, she filed an
adversary proceeding seeking to have her student loans discharged. Following a trial,
at which the Bankruptcy Court announced its findings and conclusions, the
Bankruptcy Court entered judgment in favor of Defendant ECMC, holding that the

       1
          The Honorable Nancy C. Dreher, Bankruptcy Judge, United States Bankruptcy Court
for the District of Minnesota.

                                             2
Debtor had not met her burden of proving undue hardship, so the loans are not
dischargeable under § 523(a)(8). The Debtor appeals.

                                 STANDARD OF REVIEW

      “Undue hardship ‘is a question of law which we review de novo. Subsidiary
findings of fact on which the legal conclusion is based are reviewed for clear error.’”2

                                    UNDUE HARDSHIP

       Dischargeability of student loans is governed by § 523(a)(8) of the Bankruptcy
Code, which provides, in relevant part, that a discharge under § 727 does not
discharge an individual debtor from any debt for student loans, “unless excepting such
debt from discharge under this paragraph would impose an undue hardship on the
debtor and the debtor’s dependents . . . .”3 In making a determination of undue
hardship, the Bankruptcy Court may properly consider the circumstances as they exist
at the time of trial.4

      The Eighth Circuit has adopted a totality-of-the-circumstances test in evaluating
undue hardship in student loan cases:




       2
         Educational Credit Mgmt. Corp. v. Jesperson, 571 F.3d 775, 779 (8th Cir. 2009)
(quoting In re Reynolds, 425 F.3d 526, 531 (8th Cir. 2005)).
       3
          11 U.S.C. § 523(a)(8). “In contrast to many other types of debts, § 523(a)(8)’s
exclusion of student loans from discharge is ‘self-executing’ in the sense that, ‘unless the debtor
affirmatively secures a hardship determination, the discharge order will not include a student
loan debt.’” Walker v. Sallie Mae Serv. Corp. (In re Walker), 427 B.R. 471, 476 (B.A.P. 8th Cir.
2010) (quoting Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 450, 124 S.Ct. 1905,
1912, 158 L.Ed.2d 764 (2004)).
       4
           Walker v. Sallie Mae, 427 B.R. at 483-84.

                                                 3
       We apply a totality-of-the-circumstances test in determining undue
       hardship under § 523(a)(8). Reviewing courts must consider the debtor’s
       past, present, and reasonably reliable future financial resources, the
       debtor’s reasonable and necessary living expenses, and “any other
       relevant facts and circumstances.” The debtor has the burden of proving
       undue hardship by a preponderance of the evidence. The burden is
       rigorous. “Simply put, if the debtor's reasonable future financial
       resources will sufficiently cover payment of the student loan debt-while
       still allowing for a minimal standard of living – then the debt should not
       be discharged.”5

       We start, in this case, with the Debtor’s expenses. In the Eighth Circuit, in
order to be reasonable and necessary under § 523(a)(8), an expense must be “modest
and commensurate with the debtor’s resources.”6 The Bankruptcy Court found the
Debtor’s expenses to be moderate and neither party contests that finding. Rather, the
dispute here centers around the Bankruptcy Court’s findings that (i) the boyfriend’s
contributions to the household expenses should be considered in determining whether
the Debtor can pay the student loans while still allowing for a minimal standard of
living; (ii) the Debtor is voluntarily underemployed; and (iii) the Debtor is eligible for
an income contingent repayment plan under which she will be able to maintain a
minimal standard of living.

       As stated, the Debtor has a Bachelor of Arts in Psychology. She has no
professional licenses or certifications and she has never obtained employment in her
field of education. Instead, since graduating from college, the Debtor has had
somewhat sporadic employment as a secretary and word processor for law firms, and,
most recently, as a butler for a catering company. According to the statement from



       5
         Jesperson, 571 F.3d at 779 (citing In re Long, 322 F.3d 549, 554-55 (8th Cir. 2003))
(footnote omitted).
       6
           Id. at 780.

                                                4
the Social Security Administration admitted into evidence at trial, the Debtor’s taxed
earnings for the years 1992 (the year she graduated) to 2003 were as follows:

                1992           $12,150
                1993           $14,325
                1994           $9,100
                1995           $23,213
                1996           $8,969
                1997           $13,544
                1998           $19,541
                1999           $23,595
                2000           $30,860
                2001           $28,600
                2002           $32,944
                2003           $28,5027

The parties stipulated that her income from 2004 to 2009 was as follows:

                2004           $6,601
                2005           $5,930
                2006           $9,180
                2007           $5,316
                2008           $12,635
                2009           $6,5068

With the exception of 2008, each of these annual incomes since 2004 fell below the
poverty level established by the United States Health and Human Services.9




      7
          Plaintiff’s Ex. 4.
      8
          Stipulation of Uncontroverted Facts, Appendix for the Appellee’s Brief, at 185.
      9
          Id.

                                                5
     Viewed in isolation, one might view the Debtor’s recent history of income
below the poverty level as supporting a finding of undue hardship. However, the
Bankruptcy Court found two reasons why it does not in this case.

       First, as the Bankruptcy Court held, the Debtor’s long-time, live-in boyfriend
pays more than half of the couple’s household expenses. Courts have held it proper
to consider a spouse’s income in the undue hardship analysis.10 The Debtor asserts
that the Bankruptcy Court erred in considering her boyfriend’s contributions to the
household income, pointing to the fact that they have no written or oral agreement as
to who pays expenses. The boyfriend did not testify. Although the Debtor testified
that she did not consider the relationship to be “stable,” she also appeared to concede
that her relationship was no less “stable” than a marriage might be.11 Further, there
was no evidence that the couple had ever separated in the past six years, or that either


       10
           See In re Walker, 427 B.R. at 484 n. 40 (holding that the bankruptcy court was correct
in considering the debtor’s spouse’s income, which was the sole household income, in
determining undue hardship); Sweeney v. Educ. Credit Mgmt. Corp. (In re Sweeney), 304 B.R.
360, 362-63 (D. Neb. 2002) (“Overwhelming authority requires that a court consider the
spouse’s income. This Court finds no published opinion of a court that holds to the contrary.”);
Collins v. Educ. Credit Mgmt. Corp. (In re Collins), 376 B.R. 708, 714 (Bankr. D. Minn. 2007)
(“A court must consider a spouse’s income in deciding whether a student loan constitutes an
undue burden . . . . For reasons of sound authority and sound public policy, the court must view
undue hardship in light of the total income of the family.”) (citation omitted); Shadwick, v. U.S.
Dept. of Education (In re Shadwick), 341 B.R. 6, 11 (Bankr. W.D. Mo. 2006) (“In addition to the
current and prospective income of the Debtor, the Court must consider the income or earning
potential of the Debtor’s spouse.”) (citations omitted). But see Reynolds v. Penn. Higher Educ.
Assistance Agency (In re Reynolds), 425 F.3d 526, 535 (8th Cir. 2005) (Bright, J., concurring)
(stating that, since the student loans were incurred prior to the marriage, and each spouse
contributed equally to the household, that should be taken into account).
       11
            Transcript of Proceedings at 111:

                Q:     Would you describe the relationship as being stable?

                A:     No because half the time I’m saying that I want to leave. I mean, I
                       – when you’re not married it’s – well, I suppose if you are married,
                       it can be unstable, but no, I would not.

                                                6
of them had any actual intention to leave the relationship. Since the evidence was that
the couple has been cohabiting with the same financial arrangement for six years, and
the Debtor’s characterization of the relationship as other than stable was vague and
self-serving under the circumstances, we conclude that the Bankruptcy Court did not
err in finding that the relationship was a joint economic unit similar to a marital
relationship, that the boyfriend was likely to continue to contribute to the household
finances in the same manner into the future, and that his contributions should be
considered as part of the household income.12

       Second, even without considering the boyfriend’s contributions, the Bankruptcy
Court found that the Debtor is voluntarily underemployed. The Court found the
Debtor to be “pretty sophisticated” and that she represented herself well at trial,
including reading and understanding case law on the subject of discharging student
loans and correctly using legal jargon. The Court found that the Debtor has held good
jobs at law firms, and there was no evidence that the Debtor lost any of her jobs due
to lack of performance or inability to do the work. Instead, the evidence supported the
Court’s finding that she simply quit most of the jobs because she did not like them.

      Specifically, the Debtor testified that she worked at the law firm of Reif &
Gregory from October 1987 to April 1995.13 She quit that job because she had
accepted a position to train to be a claims adjuster at Lincoln National Insurance. In
1996, she quit the job at Lincoln National Insurance because she “got in an argument
with [her] boss because they were picking on this lady that worked there,” and
because she did not like insurance. At some point, she got a job at the Hennepin
County probation office, where she worked for three months. However, the


       12
           In the event that the couple were to split, or if the boyfriend stopped contributing to
the household finances, we have previously said that a debtor may, under certain circumstances,
file a new action to discharge student loans based on changed circumstances. See In re Walker,
427 B.R. at 481.
       13
            Part of this period was while she was still in college. She graduated in 1992.

                                                  7
supervisors there were “very abusive and they had outdated attitudes,” they wanted
the employees to time in and out when they went to the bathroom, they yelled at the
employees on one occasion, and they treated the employees like they were one of the
parolees. She quit that job because it was too stressful and she “couldn’t handle the
abuse.” After several months of unemployment, she then got a job doing night
secretarial work at the law firm of Bassford and Lockhart, where she worked for about
six months in 1997. She quit that job because, after she had gotten into an argument
with one of the day secretaries, the firm wanted to change her from night hours to day
hours, and she did not think that was a good idea. She testified that she quit because
she “didn’t like it there.” She then worked as a temporary secretary at several places
between 1997 to 2000, but none of those employers offered her a permanent position.
In 2000, she got a permanent job with the law firm of Winthrop & Weinstine as a
night word processor, earning as much as $22.50 per hour. She was terminated in
October 2003 following a dispute with a co-worker over hours. She was initially
denied worker’s compensation benefits because it was determined that she was
terminated for misconduct for, essentially, failing to attend a meeting to resolve the
conflict with the co-worker. However, she appealed that decision and prevailed on
appeal.14

       She was then unemployed until April 2005, when she began working as a butler
(server) for Wolfgang Puck’s catering division, now known as Compass Group USA,
Inc. She continues to work for Compass Group USA as a butler. She is paid an
hourly wage of $14 per hour and the number of hours she works varies. She testified
that her hours are currently low due to a downturn in the catering business and the
economy in general. Despite this downturn, she is not currently looking for “office
jobs,” but instead is only applying for food service jobs.15



      14
           Tr. at 87-106; Plaintiff’s Ex. 9.
      15
           Tr. at 87-106.

                                               8
       The Debtor asserts that her difficulty in getting and keeping jobs is due to age,
race, and/or gender discrimination. She is a forty-two year old, Korean-American
woman. This discrimination, she asserts, extends to her current position with the
Compass Group catering company and is the reason why she has never been promoted
to captain, which earns a higher hourly wage than butlers make. However, her theory
of widespread discrimination is, essentially, speculation – she presented no evidence
of any actual discrimination by any of the former or potential employers, nor did she
ever file a formal complaint with any of her employers or with the EEOC.16 Indeed,
she repeatedly, and candidly, conceded that she probably lost many of her jobs
because she complains a lot and has been labeled a troublemaker.17 In sum, there
simply was no evidence to support the Debtor’s allegation that her lack of income was
due to age, race, or gender discrimination, and the Bankruptcy Court did not err in so
finding.

        The Debtor also points to the current economic recession to support her
argument that her loans should be discharged. However, as the Court pointed out,
there is no way of knowing how long this, or any, recession will last. Moreover, as
ECMC’s counsel pointed out in closing argument, the current economic climate
cannot be a basis for meeting the high standard for dischargeability because everyone
is in this recession together.



       16
          In her Brief, the Debtor recounts specific instances when people made race-based
offensive comments to her as she was growing up and in college. See, e.g., Appellant’s Brief at
11-12. She also brought up at trial a perception that opportunities for actresses and women over
age 40 “tend to peter out.” See Tr. at 62-64. However, she testified to no instance where an
employer or potential employer discriminated against her due to any protected reason, or even
made an offensive comment to her based on her race, age, or gender. Instead, she assumes that
adverse actions are taken against her because of her race, age, or gender, likely due in part to her
experiences growing up. However, despite her strong feelings of past prejudice, the Bankruptcy
Court was required to rely on actual evidence, and there simply was none showing that the
Debtor is unable to maintain suitable employment based on her race, age, or gender.
       17
            See, e.g., Tr. at 65-66, 69-70, 71, 74; Appellant’s Brief at 46-48.

                                                   9
       “A debtor is not entitled to an undue hardship discharge of student loan debts
when his current income is the result of self-imposed limitations, rather than lack of
job skills . . . .”18 The evidence and testimony support the Bankruptcy Court’s
conclusion that the Debtor is entirely capable of obtaining full-time, gainful
employment, and that she is voluntarily underemployed. Therefore, she failed to prove
that she should be entitled to discharge her student loans.

      Finally, the Eighth Circuit Court of Appeals confirmed in Jesperson that the
Income Contingent Repayment Plan for student loans, which, the parties concede, is
available to the Debtor, is a factor to be considered in evaluating the totality of the
debtor’s circumstances:

       [U]ndue hardship under § 523(a)(8) continues to require separate
       analysis under which, in this circuit, the ICRP is “a factor” to consider
       in evaluating the totality of the debtor’s circumstances. However, a
       student loan should not be discharged when the debtor has “the ability
       to earn sufficient income to make student loan payments under the
       various special opportunities made available through the Student Loan
       Program.”19

“Although some question remains as to the weight to be given to the ability to make
an ICRP payment following Jesperson, the Eighth Circuit made clear that the ability
to do so is, at a minimum, an important factor in the analysis.”20




       18
            In re Jesperson, 571 F.3d at 782.
       19
            Id. at 781 (citations omitted).
       20
          In re Walker, 427 B.R. at 486-87 (citing In re Jesperson, 571 F.3d at 784 (Smith, J.,
concurring) (stating that, while the ICRP is a factor relating to good faith in the analysis, a
bankruptcy court should not place too much weight on the debtor’s refusal to enroll in the
ICRP), Id. at 786 (Bye, J., dissenting) (stating that a debtor is not ineligible for a hardship
discharge if capable of making payments under the ICRP)).

                                                10
        The undisputed evidence was that the Debtor’s loans qualify for the William
D. Ford Federal Direct Loan Program and that, under either the Income Contingent
Repayment Plan or the Income Based Repayment plan, at her current income level,
her student loan payments would be zero.21 The Debtor stated that she had not applied
for either of these repayment plans because she believes there will be tax
consequences. As the Bankruptcy Court stated, however, while there is some question
as to whether borrowers whose student loans are forgiven are subject to tax liability,
the Eighth Circuit in Jesperson appeared to reject the argument that such potential tax
liability is a basis for a finding of undue hardship under § 523(a)(8).22

       Finally, the Debtor asserts that the Bankruptcy Court made a “hasty” decision
because she made her findings and conclusions from the Bench at the conclusion of
the trial. However, courts frequently announce findings and conclusions from the
Bench and doing so does not mean that the Court hastily considered the evidence.
The transcript shows that the Court in this case carefully considered the evidence and
the law and made detailed findings based on those items. Indeed, the Debtor has
pointed to no specific item of evidence which was overlooked, nor any error in
determining the law to be applied.

                                        CONCLUSION

      Because we conclude that the Bankruptcy Court did not err in finding that
the Debtor failed to meet her burden of showing that repaying her student loans



       21
            Stipulation of Uncontroverted Facts at 5-6, Appendix for the Appellant’s Brief at 187-
88.
       22
          Jesperson, 571 F.3d at 782 (disagreeing with the bankruptcy court and district court’s
view of the ICRP as being inimical to the goals of the fresh start because the ICRP allows for
negative amortization and a potentially significant tax bill when the loans are forgiven, and
pointing out that a tax obligation would only arise if the borrower has assets exceeding the
amount of debt being canceled).

                                                11
would impose an undue hardship on her pursuant to 11 U.S.C. § 523(a)(8), the
Judgment is AFFIRMED.




                                       12
