                                                           FILED
                                                           MAR 26 2012
 1
                                                        SUSAN M SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
 2                                                        OF THE NINTH CIRCUIT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )       BAP No.    AZ-11-1376-DJuPa
                                   )
 6   AUGUST K. RISTOW, JR. and     )      Bk. No.     10-06491-EWH
     VICTORIA REI RISTOW,          )
 7                                 )       Adv. No. 10-01141-EWH
                    Debtors.       )
 8   ______________________________)
                                   )
 9   EDUCATIONAL CREDIT MANAGEMENT )
     CORPORATION,                  )
10                                 )
                    Appellant,     )
11                                 )
     v.                            )       M E M O R A N D U M1
12                                 )
     AUGUST K. RISTOW;             )
13   VICTORIA REI RISTOW,          )
                                   )
14                  Appellees.     )
     ______________________________)
15
                    Argued and Submitted on February 24, 2012
16                             at Phoenix, Arizona
17                           Filed - March 26, 2012
18             Appeal from the United States Bankruptcy Court
                         for the District of Arizona
19
        Honorable Eileen W. Hollowell, Bankruptcy Judge, Presiding
20
21   Appearances:     Adam Clinton Trampe, Esq. argued for Appellant;
                      Terry Lee Goddard, Jr., Esq. for Appellees.
22
23   Before:   DUNN, JURY and PAPPAS, Bankruptcy Judges.
24
25
26        1
            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        Victoria and August Ristow (collectively, the “Ristows”)
 2   sought discharge of the student loan debt owed to Educational
 3   Credit Management Corporation (“ECMC”) as an undue hardship under
 4   § 523(a)(8).2   The bankruptcy court granted partial discharge of
 5   the student loan debt.   ECMC appeals, contending that the
 6   bankruptcy court erred in finding that the Ristows met all three
 7   prongs of the test for undue hardship set forth in Brunner v.
 8   N.Y. State Higher Educ. Srvcs. (In re Brunner), 46 B.R. 752
 9   (S.D.N.Y. 1985), aff’d, 831 F.2d 395 (2d Cir. 1987).   We REVERSE.
10                                  FACTS
11   A.   The Ristows’ employment circumstances
12        The Ristows are in their early sixties with no dependents.
13   August is an interim Lutheran minister who works with parishes
14   that are “in between” more permanent ministers.   His pay varies
15   by the size of the parish he serves; he earns less at smaller
16   parishes.   August currently works at a large parish in Las Vegas,
17   Nevada, where he expects to work until mid to late 2012.     He
18   stays in Las Vegas whenever he works at the parish; the parish
19   provides his housing and pays certain expenses.
20        Several years ago, August worked as a furniture repairman
21   and restorer, but he stopped such work due to back problems.
22   Aside from his work at the parish, he has no other source of
23   income.
24        Victoria has a master’s degree in education and an MBA.
25   However, she is unemployed.   For thirty years, she worked as a
26
          2
27          Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
28   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

                                      2
 1   disability case manager in state-funded vocational rehabilitation
 2   programs, providing re-employment assistance to people with
 3   disabilities or work-related injuries.   She also worked as an
 4   international business development consultant.
 5        Because of cutbacks in funding for state vocational
 6   rehabilitation programs, Victoria decided to obtain an MBA from
 7   the Thunderbird School of Global Management (“Thunderbird”) in
 8   hopes of developing another career with higher income.   She
 9   believed that her experience in international business
10   development, as well as Thunderbird’s prestigious reputation,
11   would help her transition into a career in international
12   business.   Victoria further reasoned that she could use her MBA
13   in other endeavors if she was unable to obtain employment in
14   international business.
15        Victoria attended Thunderbird from 2006 to 2008, completing
16   the MBA program with a 3.4 GPA.   She funded her education with
17   student loans from various lenders.    Victoria also continued to
18   work as a disability case manager while attending Thunderbird.
19   However, she was laid off shortly before graduating from
20   Thunderbird.
21        After graduation, for nearly three years, she tried to find
22   employment in business development, business management and case
23   management.    As part of her job-hunting efforts, she joined
24   networking groups, used a private career placement service, and
25   conducted online and phone searches.   She managed to obtain a few
26   interviews, but no job offers.    Subsequently, she continued to
27   search for employment, though not with the “same intensity,”
28

                                       3
 1   believing that her MBA had lost some of its value over time.3
 2        While searching for jobs, Victoria found short-term
 3   employment as a consultant in capital investment; for a
 4   contingent finder’s fee, she introduced venture capitalists to
 5   small start-up companies.   She was unable to develop this
 6   endeavor into permanent employment due to the poor economy.
 7   Victoria also managed to find some employment as an independent
 8   contractor in case management, which supplied her one to four
 9   cases a year.   She supplemented the family income with
10   unemployment benefits.
11        Like August, Victoria has health problems.    Because of a car
12   accident, she needs double-knee replacement surgery, left foot
13   metatarsal fusion surgery and thumb surgery.    She has not
14   undergone the double-knee replacement surgery, because she needs
15   to lose weight before doing so.   Victoria also has no funds with
16   which to pay for the surgeries.   Due to her health, she believes
17   that she only may work jobs that are sedentary or involve light
18   exertion and do not involve high levels of stress or long hours.
19   B.   The Ristows’ chapter 7 bankruptcy filing
20        The Ristows filed their chapter 7 bankruptcy petition on
21   March 10, 2010.   At the time of the bankruptcy filing, the
22   Ristows had $4,675 in monthly net income and $7,011 in monthly
23   expenses.4   Their monthly net income decreased to $3,614,
24
25        3
            Victoria testified that her MBA carried “the most weight
26   and [was] the most effective for about two years after
     graduation.” Tr. of March 29, 2011 trial, 47:15-19.
27
          4
28          Per their amended Schedule J, the Ristows’ monthly
     expenses were $7,006, before they reduced them.

                                       4
 1   however, when Victoria’s unemployment benefits expired sometime
 2   postpetition.5    Their monthly expenses also decreased to $3,704,
 3   after the Ristows surrendered timeshares and a recreational
 4   vehicle postpetition and lowered the monthly mortgage payments on
 5   their home through a loan modification.
 6        Among their expenses, the Ristows pay approximately $1,210
 7   per month for their home mortgage and $415 per month for
 8   utilities.    They also pay $50 per month for laundry, $120 per
 9   month for medical expenses and $140 per month for miscellaneous
10   expenses.6
11        The Ristows also make monthly payments of $516 on a 2007
12   Honda Civic Hybrid and $392 on a 2005 Honda Element.    They report
13   $300 per month in transportation expenses and $96 per month for
14   car insurance.
15        As of the bankruptcy petition date, the Honda Civic had
16   53,618 miles on it and the Honda Element had 74,313 miles on it.
17   The Ristows reaffirmed the debts on the Honda Civic and the Honda
18   Element.     Under the reaffirmation agreement for the Honda Civic,
19   they agreed to pay $516.06 per month for 55 months, beginning
20   April 13, 2010.    Under the reaffirmation agreement for the Honda
21   Element, the Ristows agreed to pay $390.65 per month for 20
22   months, beginning May 30, 2010.
23
          5
24          Victoria testified that at the time of trial, the Ristows
     had a monthly net income as high as $3,800.
25
          6
            According to their original and amended Schedule J, the
26   Ristows made payments of $1,000 per month on student loan debt.
27   According to an expense sheet (which appears to have been
     supplied in answer to ECMC’s discovery request), the Ristows
28   apparently no longer make such payments.

                                        5
 1   C.   The Ristow’s § 523(a)(8) complaint
 2        The Ristows filed a complaint to discharge student loan
 3   debts totaling $204,764 under § 523(a)(8).   They asked that the
 4   student loans be discharged because repayment of the student
 5   loans would impose an undue hardship on them.    Although the
 6   Ristows named several lenders as defendants, only ECMC answered
 7   the complaint.7   The Ristows later obtained a default judgment
 8   against the other lenders.
 9        Victoria owed ECMC $88,966.30 in student loan debt as of
10   July 29, 2010.    ECMC contended that the entire amount of the
11   student loan debt was excepted from discharge.
12        At the March 29, 2011 trial, Victoria testified that she
13   made nominal monthly payments of $150 to $160 on her student loan
14   debt for a few months after the loan repayment deferment period
15   ended.8   She admitted that she had been advised of her student
16   loan repayment options, which were the William D. Ford Income-
17   Based repayment plan (“Income Based Plan”) and the William D.
18   Ford Income Contingent repayment plan (“Income Contingent
19   Plan”)(collectively, “Repayment Plans”).   Under the Income Based
20   Plan, Victoria’s monthly payment would be $268.91.   Under the
21   Income Contingent Plan, her monthly payment would be $479.97.
22
23        7
            The Ristows named in their amended complaint National
24   Collegiate Trust/The Education Resources Institute (collectively,
     “National Collegiate Trust”), Great Lakes Educational Loan
25   Services (“Great Lakes Loan”) and Xpress Loan Services/Student
     Loan Xpress, Inc. (“Xpress Loan”) as defendants. ECMC is the
26   successor in interest to Xpress Loan and Great Lakes Loan.
27        8
            Victoria later testified that she made a total of $600 to
28   $800 in payments on her student loan debt.

                                       6
 1        Victoria explained that she decided not to make payments
 2   under either the Income Based Plan or the Income Contingent Plan
 3   because: (1) she did not want August to be liable for any
 4   payments; (2) she and August did not have any extra disposable
 5   income to make even the minimum payments; and (3) she would have
 6   to make payments until she was 85 or 90 years old, given the 25
 7   to 30-year repayment term.
 8        Victoria testified that “the dual income that [they] . . .
 9   had at one time when both of [them were] working and getting the
10   kind of professional incomes [they] should be getting, [was]
11   about [$]150 to $180,000.”   Tr. of March 29, 2011 trial, 49:9-12.
12   She did not anticipate that she and August would return to their
13   former level of income, however, based on her experiences over
14   the last three years.   Victoria testified that, after one
15   interview with a company, she was informed that she did not
16   advance past the first interview because she “was too old and
17   [she] wouldn’t make it with the technology.”   Tr. of March 29,
18   2011 trial, 59:8-10.    Moreover, she pointed out, their additional
19   sources of income (namely, August’s furniture repair and
20   restoration work) were no longer viable due to the economy and
21   their health.
22        Victoria explained that, with their current income and
23   expenses, she and August either “broke even” or had approximately
24   $100 in disposable income left over.   Tr. of March 29, 2011
25   trial, 74:16-19.   She explained that, based on their current
26   financial circumstances, she did not see how she and August could
27   cut their expenses; they were “just, you know, scraping by as it
28   [was], so.”   Tr. of March 29, 2011 trial, 57:12-13.

                                       7
 1           Victoria testified that she initially sought jobs with
 2   salaries between $101,000 to $150,000, though “she didn’t
 3   stipulate to that criteria.”    Tr. of March 29, 2011 trial,
 4   81:11-15.    She admitted that, in her search for employment, a
 5   $90,000 salary was the minimum salary she would consider.
 6   Victoria explained that she had been told that “six figures and
 7   above [salary was] what MBA people [got].”    Tr. of March 29, 2011
 8   trial, 42:24-25.
 9           Victoria further testified that she believed that she would
10   repay the student loans either with the income she earned through
11   employment with her MBA or by consolidating the student loans
12   and/or using the equity in the Ristows’ home.    She asserted that
13   before she applied to Thunderbird, she had been told that she
14   would very likely get a job within six months of graduation.
15           At the end of the trial, the bankruptcy court concluded
16   that, based on the evidence the Ristows presented, the Income
17   Based Plan and the Income Contingent Plan “would be a stretch
18   because [Victoria] was unemployed and the economy [was] very
19   difficult right now.”    Tr. of March 29, 2011 trial, 89:1-3.     It
20   acknowledged, however, that because the Ristows would be paying
21   off the Honda Element in December 2011, they might have some
22   excess income with which to pay off some of the student loan
23   debt.    The bankruptcy court pointed out that neither the Ristows
24   nor ECMC addressed the issue of a partial discharge of the
25   student loan debt.    The bankruptcy court then gave the Ristows
26   and ECMC the opportunity to present post-trial briefs on the
27   issue.
28           The bankruptcy court issued a memorandum decision

                                        8
 1   (“Memorandum Decision”) after the parties submitted their post-
 2   trial briefs.    It applied the three-prong test established in
 3   Brunner, which was adopted by the Ninth Circuit in United Student
 4   Aid Funds, Inc. v. Pena (In re Pena), 155 F.3d 1108, 1112 (9th
 5   Cir. 1998), to determine undue hardship under § 523(a)(8).
 6           The bankruptcy court found that the Ristows met all of the
 7   elements of the Brunner test.     Although it determined that the
 8   Ristows satisfied the Brunner test, the bankruptcy court refused
 9   to discharge all of Victoria’s student loan debt.
10           The bankruptcy court recognized that the Ristows would never
11   have sufficient income with which to pay the student loan debt in
12   full.    It found, however, that once they paid off the Honda
13   Element in December 2011, the Ristows would have some surplus
14   income with which to pay off some of the student loan debt.     It
15   figured that the Ristows would have approximately $100 per month
16   surplus income, after taking $300 in transportation expenses into
17   account under the chapter 13 trustee guidelines.
18           The bankruptcy court determined that, as there was no
19   statute of limitations on student loan debt, the repayment period
20   should be 25 years.    It determined that the interest rate should
21   be 8%, as applied to federal consolidated loans.    The bankruptcy
22   court calculated that the total amount of the student loan debt
23   excepted from discharge was $13,000, based on a payment of
24   $100.34 per month over 25 years at 8% interest.
25           On July 7, 2011, the bankruptcy court entered a judgment
26   consistent with its rulings.    ECMC timely appealed.
27                                JURISDICTION
28           The bankruptcy court had jurisdiction under 28 U.S.C.

                                        9
 1   §§ 1334 and 157(b)(1) and (b)(2)(I).       We have jurisdiction under
 2   28 U.S.C. § 158.
 3                                    ISSUE
 4           Did the bankruptcy court err in granting the Ristows a
 5   partial discharge of the student loan debt?
 6                             STANDARDS OF REVIEW
 7           We review the bankruptcy court’s factual findings for clear
 8   error and its interpretation of the Bankruptcy Code de novo.
 9   ECMC v. Mason (In re Mason), 464 F.3d 878, 881 (9th Cir. 2006),
10   quoting Miller v. Cardinale (In re DeVille), 361 F.3d 539, 547
11   (9th Cir. 2004).     We review mixed questions of law and fact de
12   novo.    Murray v. Bammer (In re Bammer), 131 F.3d 788, 792 (9th
13   Cir. 1997).    A mixed question of law and fact exists when the
14   facts are established, the law is undisputed, and the issue is
15   whether the facts satisfy the legal standard.      Id.   Such mixed
16   questions require consideration of legal concepts and the
17   exercise of judgment regarding the values that animate legal
18   principles.    Id.
19           The question as to whether student loan debt imposes an
20   undue hardship on a bankrupt debtor is such a mixed question,
21   reviewed de novo.    Rifino v. United States (In re Rifino),
22   245 F.3d 1083, 1086-87 (9th Cir. 2001); Pa. Higher Educ.
23   Assistance Agency v. Birrane (In re Birrane), 287 B.R. 490, 493
24   (9th Cir. BAP 2002).
25                                 DISCUSSION
26           In this appeal, we must deal with the consequences of
27   several arguably poor decisions: It was imprudent of Victoria to
28   incur student loan debt exceeding $150,000 to pursue her MBA at

                                       10
 1   her advanced age, and it was imprudent of her lenders to lend it
 2   to her.    As acknowledged by ECMC in its opening brief, “In 2006,
 3   Victoria Ristow decided to finance an MBA with student loans
 4   despite several factors suggesting she’d never be able to fully
 5   repay them.”    Appellant’s Opening Brief at 2 (emphasis added).
 6   Now, the Ristows are in bankruptcy, and we consider whether the
 7   bankruptcy court erred in partially discharging Victoria’s
 8   approximately $90,000 obligation to ECMC, leaving a balance owing
 9   of $13,000 payable at 8% interest.
10        Under the Bankruptcy Code, student loan debt generally is
11   presumed excepted from discharge under § 523(a)(8)9 unless the
12   debtor establishes that requiring repayment would impose an undue
13   hardship.    The Bankruptcy Code does not define “undue hardship.”
14   ECMC v. Nys (In re Nys), 446 F.3d 938, 944 (9th Cir. 2006).    But
15   using the adjective, “undue,” indicates that Congress viewed
16   garden-variety hardship as an insufficient justification for
17   discharging student loan debt.    In re Pena, 155 F.3d at 1111.
18        What separates a “garden-variety debtor” from a debtor
          who can show “undue hardship” is the realistic
19        possibility that a “garden-variety debtor” could
          improve her financial situation in the future. With
20        increased financial stability, a debtor can make
          payments on her student loans and maintain a minimal
21
22
          9
              Section 523(a)(8) provides, in relevant part:
23
          A discharge under section 727 . . . of this title does
24
          not discharge an individual debtor from any debt . . .
25        unless excepting such debt from discharge under this
          paragraph would impose an undue hardship on the debtor
26        . . . for . . . an education benefit overpayment or
27        loan made, insured, or guaranteed by a government unit,
          or made under any program funded in whole or in part by
28        a governmental unit or nonprofit institution . . . .

                                      11
 1        standard of living. In comparison, forcing debtors who
          cannot reasonably be expected to increase their future
 2        income to make payments on their student loans when it
          causes them to fall below a minimal standard of living
 3        constitutes an “undue hardship.”
 4   In re Nys, 446 F.3d at 944.
 5        To meet the “undue hardship” test of § 523(a)(8), the debtor
 6   must demonstrate that: (1) she cannot maintain, based on current
 7   income and expenses, a minimum standard of living for herself if
 8   forced to repay her student loans; (2) additional circumstances
 9   exist indicating that this state of affairs is likely to persist
10   for a significant portion of the student loan repayment period;
11   and (3) she has made a good faith effort to repay the student
12   loans.   In re Pena, 155 F.3d at 1111-12, adopting the test
13   (“Brunner test”) from Brunner, 46 B.R. at 753.   The debtor bears
14   the burden of proof to establish all three elements of the
15   Brunner test.   Rifino v. U.S. (In re Rifino), 245 F.3d 1083,
16   1087-88 (9th Cir. 2001).   If the debtor fails to meet her burden
17   as to any one of these elements, the inquiry ends with a finding
18   that the student loan debt is not excepted from discharge.     Id.
19   at 1088.   Accordingly, the path to a discharge of student loan
20   debt is not easy.
21        On appeal, ECMC argues that the Ristows failed to meet their
22   burden as to all three of the Brunner test elements.   We agree
23   with ECMC as to one element, the “good faith” effort to repay,
24   but that conclusion is enough to require reversal of the
25   bankruptcy court’s decision.
26        The third element of the Brunner test requires that the
27   debtor establish that she made a good faith effort to repay the
28   subject student loan(s).   See In re Pena, 155 F.3d at 1114.

                                     12
 1   “Good faith is measured by the debtor’s efforts to obtain
 2   employment, maximize income, and minimize expenses.”    In re
 3   Mason, 464 F.3d at 884, quoting In re Birrane, 287 B.R. at 499.
 4   In addition, courts will consider the debtor’s record of making
 5   payments on the student loan debt and the debtor’s efforts, if
 6   any, to negotiate a repayment plan.    Id.   However, the debtor’s
 7   history of making or not making student loan payments is not
 8   dispositive.   Id. at 499-500.
 9        In considering the good faith effort element, the bankruptcy
10   court noted that Victoria “timely sought forbearance and made
11   some minimal payments from her unemployment benefits” on the ECMC
12   loans.   Memorandum Decision at 11.    As noted above, Victoria
13   testified that she made a total of $600 to $800 in payments on
14   her student loan debt.
15        ECMC focuses on two portions of the evidentiary record that
16   we agree are critical in light of Ninth Circuit authorities.
17   First, Victoria’s testimony indicates that following her receipt
18   of her MBA, during the intensive period of her job search, she
19   focused on jobs with compensation ranging from $101,000 to
20   $150,000, and the minimum compensation she would consider was
21   $90,000 with incentive bonuses.    Her career placement firm
22   advised her that in any given week, only about 0.05% of the
23   available employment positions provided compensation in her
24   preferred range.   She never sought employment in lower paying
25   positions.
26        The bankruptcy court noted that Victoria’s testimony “did
27   not indicate that she was unwilling to work for less than six
28   figures” (Memorandum Decision at 8), but that determination does

                                       13
 1   not meet the Ristows’ burden to establish that they sufficiently
 2   exerted themselves to maximize their income.    As ECMC emphasizes,
 3   there is nothing in the record to indicate that Victoria
 4   attempted to secure any “minimum-wage part-time jobs” to pay her
 5   student loan debts.   In fact, as ECMC further notes, “If
 6   [Victoria] worked at a [Lowe’s] customer service desk like the
 7   debtor in [ECMC v. Blackbird (In re Blackbird), 2008 WL 8444793
 8   (9th Cir. BAP July 11, 2008)]–or in any other ‘light sedentary’
 9   job–for minimum wage, ten hours a week, she’d be able to make her
10   loan payments.”10 Appellant’s Reply Brief at 8-9.
11        We do not share ECMC’s blithe assumptions about the
12   increased net income that may result for the Ristows from part-
13   time, minimum wage jobs once the expenses associated with such
14   employment are considered.   See B. Ehrenreich, Nickel and Dimed:
15   On (Not) Getting By in America (2001).     However, we recognize
16   that the lack of any evidence that Victoria considered employment
17   for compensation at any amount less than $90,000 is telling in
18   this context.
19        Second, Victoria testified that she was aware of the Income
20   Based Plan and Income Contingent Plan for payment of her student
21   loan debts and would not apply for them.    Under the Income Based
22   Plan, her initial monthly payment would be $268.91, and after a
23   term of twenty-five years, any unpaid balance would be forgiven.
24
25
          10
            We note that in light of his “doctorate education,” the
26   fact that the debtor in In re Blackbird had obtained a job as a
27   customer service representative at Lowe’s did not satisfy the
     good faith effort to repay element of the Brunner test. In re
28   Blackbird, 2008 WL 8444793 at *7.

                                     14
 1        Where income contingent repayment programs are available, a
 2   failure to pursue such options is considered in determining
 3   whether a debtor has met her burden to establish a good faith
 4   effort to repay student loan debt.   See, e.g., In re Mason,
 5   464 F.3d at 884 (the debtor failed to pursue an income contingent
 6   repayment plan option with diligence); In re Birrane, 287 B.R. at
 7   500 (concluding lack of good faith where debtor made some effort
 8   to renegotiate payment of student loan debt but failed to pursue
 9   an income contingent repayment plan option when it became
10   available).
11        As the bankruptcy court noted, Victoria testified that she
12   rejected applying for either of the Repayment Plans because:
13   1) she did not want her husband to become obligated for the
14   payments, 2) the Ristows could not afford the Income Based Plan
15   payments currently, and 3) the twenty-five year payment term
16   meant that the Ristows would be obligated to make payments under
17   the Income Based Plan through their mid-eighties.   The bankruptcy
18   court concluded that the Ristows’ reasons for not pursuing the
19   Repayment Plans did not demonstrate good faith, and we agree.
20   However, the bankruptcy court’s remedy for the Ristows’
21   deficiency in evidencing a good faith effort to repay was to
22   grant a partial discharge, discharging approximately $77,000 of
23   Victoria’s student loan debt to ECMC, on top of the $100,000+ of
24   student loan debt already discharged by default in the Ristows’
25   adversary proceeding.   As noted above, Ninth Circuit authorities
26   are clear that if the debtor does not meet the burden of proof on
27   any element of the Brunner test to discharge student loan debt,
28   the debt is not discharged.

                                     15
 1                              CONCLUSION
 2        For the foregoing reasons, we conclude that the Ristows did
 3   not meet their burden of proof under the Brunner test to
 4   establish that they are entitled to a discharge of their student
 5   loan debt to ECMC as an undue hardship.   Accordingly, we REVERSE.
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