       United States Bankruptcy Appellate Panel
                         For the Eighth Circuit
                     ___________________________

                             No. 15-6029
                     ___________________________

                         In re: Chelsea Ann Conway

                            lllllllllllllllllllllDebtor

                          ------------------------------

                            Chelsea Ann Conway

                    lllllllllllllllllllll Plaintiff - Appellant

                                        v.

           National Collegiate Trust; First Marblehead Corp., Inc.

                   lllllllllllllllllllll Defendants - Appellees
                                    ____________

               Appeal from United States Bankruptcy Court
               for the Eastern District of Missouri - St. Louis
                               ____________

                       Submitted: December 10, 2015
                         Filed: December 21, 2015
                              ____________

Before KRESSEL, SALADINO and SHODEEN, Bankruptcy Judges.
                          ____________

SALADINO, Bankruptcy Judge.
      Chelsea Conway appeals the decision of the bankruptcy court1 finding some,
but not all, of her student loan obligations to National Collegiate Trust (“NCT”) to
be nondischargeable. For the reasons stated below, we affirm.

       This appeal follows an earlier appeal of the bankruptcy court’s order excepting
all of Ms. Conway’s student loan debts to NCT from discharge. We reversed that
decision, and remanded it to the bankruptcy court “to determine whether Ms.
Conway’s present disposable income, if any, over the course of an entire year is
sufficient to service any of the individual loan payments due to NCT.”2 After
reviewing Ms. Conway’s income and expenses for the period of November 2013
through October 2014, the bankruptcy court held that Ms. Conway’s monthly
disposable income was $170.30, with which she could make payments on four of the
student loans without undue hardship. The remaining 11 loans were dischargeable.
Ms. Conway subsequently asked the bankruptcy court to make additional findings
and amend its judgment in light of increased expenses and decreased income after the
time period reviewed by the court, but that request was denied.

       Ms. Conway now appeals the bankruptcy court’s order denying the motion to
make additional findings and amend the judgment, alleging four errors in the
determination of her ability to repay any of the student loans: (1) a loss of income due
to being laid off from one of her jobs after the cut-off date set by the bankruptcy court
but before the court’s findings were issued; (2) an increase in the monthly payment
due on her federal student loans; (3) an increase in her monthly health insurance
expenses; and (4) the court’s reduction of her monthly miscellaneous expenses. Ms.


      1
      The Honorable Kathy A. Surratt-States, Chief Judge, United States
Bankruptcy Court for the Eastern District of Missouri.
      2
       The underlying facts of the case were set forth in that opinion, Conway v. Nat’l
Collegiate Trust (In re Conway), 495 B.R. 416 (B.A.P. 8th Cir. 2013), aff’d 559 Fed.
Appx. 610 (8th Cir. 2014) (per curiam), and will not be repeated here.

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Conway asserts that she now has negative monthly disposable income and is unable
to make any payments to NCT on her student loans, so they all should be
dischargeable.

                                Standard of Review

        A bankruptcy court’s denial of a motion for new trial, or to alter or amend a
judgment, is reviewed with deference and will not be reversed absent a clear abuse
of discretion. Suggs v. Regency Fin’l Corp. (In re Suggs), 377 B.R. 198, 203 (B.A.P.
8th Cir. 2007); Guy v. Danzig ( In re Danzig), 233 B.R. 85, 93 (B.A.P. 8th Cir. 1999).
The bankruptcy court abuses its discretion when it fails to apply the proper legal
standard or bases its order on findings of fact that are clearly erroneous. Official
Comm. of Unsecured Creditors v. Farmland Indus., Inc. (In re Farmland Indus.,
Inc.), 397 F.3d 647, 651 (8th Cir. 2005) (citing Stalnaker v. DLC, Ltd., 376 F.3d 819,
825 (8th Cir. 2004)).

      The issue of dischargeability of student loans is a question of law, which we
review de novo. Reynolds v. Penn. Higher Educ. Assistance Agency (In re Reynolds),
425 F.3d 526, 531 (8th Cir. 2005) (citing Long v. Educ. Credit Mgmt. Corp. (In re
Long), 322 F.3d 549, 553 (8th Cir. 2003)). Factual findings underlying that legal
conclusion are reviewed for clear error. Id. A finding is clearly erroneous if, after
examining the entire record, we are left with a definite and firm conviction that the
bankruptcy court has made a mistake. Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985).

                                     Discussion

      Ms. Conway contends the bankruptcy court made clearly erroneous factual
findings when it chose so-called arbitrary dates to calculate her disposable income.
Ms. Conway asserts she informed the court in December 2014 (after the hearing upon

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remand, but four months before the bankruptcy court issued its order) that she had
been laid off from one of her jobs and that her health insurance and other student loan
payments would be increasing, but the court chose a cut-off date of October 2014 to
artificially inflate the disposable income calculation and create an undue hardship for
Ms. Conway. Ms. Conway also takes issue with the bankruptcy court’s decision to
eliminate her $80.00 monthly “miscellaneous” expenses when those expenses, in the
amount of $97.00, had previously been allowed.

        The record indicates that after this matter was remanded to the bankruptcy
court, a status conference was held on October 21, 2014. The parties were given time
to file supplemental documentation. On November 12, 2014, Ms. Conway filed a list
of updated expenses, which included the increased payment amount on her federal
student loans, as well as the increased cost of health insurance. The list included
thoroughly detailed explanations of anticipated expenditures in the medical and
transportation categories, so the court was aware of these expected expenses. NCT
filed a reply, characterizing some of the updated expenses as “speculative,
unsubstantiated or . . . one-time expenses.” Ms. Conway was given leave of the court
to respond to NCT, and she did so on December 17, 2014. In her submission, she
noted that she had been laid off from one of her part-time jobs on December 4, 2014,
and while she was taking steps to make up the lost income through unemployment
compensation and increased shifts at her other job, her available income was
unknowable but would likely result in an even larger monthly deficit than she had
reported in the list of expenses filed in November.

       When a bankruptcy court makes a post-discharge undue hardship
determination, it does so on the basis of the facts existing at the time of trial. Walker
v. Sallie Mae Servicing Corp. (In re Walker), 427 B.R. 471, 482-84 (B.A.P. 8th Cir.
2010). In this instance, a trial was unnecessary and the court made its decision as
instructed on remand on the basis of updated figures submitted by the parties. The
court chose the November 2013 through October 2014 time frame because it was the

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most recent 12-month period for which complete income and expense information
was available. Ms. Conway believes the bankruptcy court unfairly penalized her by
failing to take into consideration the post-October 2014 decrease in income and
increase in certain expenses. The court did note the anticipated increase in health
insurance and federal student loan payments, but declined to base its decision on what
were then speculative numbers. The bankruptcy court was required to, and did,
examine the totality of Ms. Conway’s circumstances, including her “reasonably
reliable future financial resources.”

      A decision on the dischargeability of student loan debt will nearly always be
akin to a judicial version of “Whack-A-Mole” because a debtor’s income and
expenses are seldom static. Life is like that. During the prior appeal in this matter, we
recognized that Ms. Conway’s income and expenses varied greatly from month to
month, but appeared more steady when viewed year to year. For that reason, we
requested on remand that the bankruptcy court make its findings based on Ms.
Conway’s ability to service NCT’s individual loans over the course of an entire year.

       The bankruptcy court must make a decision based on the most reliable evidence
before it. Determination of an undue hardship is an inherently discretionary one that
takes into account the circumstances at the relevant time. Woodcock v. U.S. Dep’t of
Educ. (In re Woodcock), 326 B.R. 441, 447 (B.A.P. 8th Cir. 2005) (citing Bender v.
Educ. Credit Mgmt. Corp. (In re Bender), 368 F.3d 846, 848 (8th Cir. 2004). The
courts are not equipped to revisit a nondischargeability determination every time a
debtor’s circumstances change; to do so would wreak havoc with the concept of the
finality of a court order.

             The Code calls upon the bankruptcy court to do the best it
             can with the information that it has available to it at the
             time of determination of dischargeability and to engage in
             an analysis which is not just static, but forward[-]looking.


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            It becomes meaningless if it can be subjected to multiple
            periodic re-review without limit.

Woodcock v. U.S. Dep’t of Educ. (In re Woodcock), 315 B.R. 487, 498 (Bankr. W.D.
Mo. 2004), aff’d, 326 B.R. 441 (B.A.P. 8th Cir. 2005).

      Here, the bankruptcy court properly reviewed a complete year of Ms. Conway’s
income and expense records, adjusting some of the expenses and concluding that Ms.
Conway had the ability to repay some of her student loans. The time period the court
used was the most recent time period for which it had complete income and expense
figures. While Ms. Conway may feel that repayment of the four loans the court
determined to be nondischargeable will cause her a hardship, the bankruptcy court
was not clearly erroneous in its fact findings for the time period analyzed.
Accordingly, the bankruptcy court did not abuse its discretion in denying Ms.
Conway’s motion to make additional findings and amend the judgment. Therefore,
we affirm.
                      ______________________________




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