                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-2507
                                  ___________

In re: Paul F. Bender; Lee E. J. Bender, *
                                         *
             Debtors.                    *
                                         *
______________________                   *
                                         *
Lee E. J. Bender,                        *
                                         * Appeal from the United States
             Appellant,                  * District Court for the District of
                                         * Nebraska.
       v.                                *
                                         *
Educational Credit Management            *
Corporation,                             *
                                         *
             Appellee.                   *
                                   ___________

                            Submitted: April 12, 2004

                                 Filed: May 12, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, RILEY, and COLLOTON, Circuit Judges.
                          ___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.

       This is an appeal from the district court's1 determination that Lee Bender's
petition to discharge her student loans in a bankruptcy proceeding was not ripe for
review. We affirm.

       In February 2001, Ms. Bender and her husband filed for bankruptcy under
Chapter 13. Four months later, three and a half years before they would become
entitled to a discharge of debts under their Chapter 13 plan, Ms. Bender commenced
this adversary proceeding seeking discharge of her student loan debt to Educational
Credit Management Corporation. A little over a year later, the bankruptcy court ruled
in favor of Ms. Bender. On appeal, the district court reversed, ruling that the
adversary petition was not ripe for adjudication. Ms. Bender then brought this appeal.

       Student loans are not ordinarily dischargeable under Chapter 13. See 11 U.S.C.
§§ 523(a)(8), 1328(a)(2). But upon a showing that "excepting such debt from
discharge" will cause "undue hardship," a debtor may receive a discharge of student
loans as part of a general Chapter 13 discharge. See 11 U.S.C. § 523(a)(8); see also
11 U.S.C. § 1328(a)(2). We find it significant that the general rule of non-
dischargeability of student loans is phrased as an exception to the Chapter 13
discharge, and a showing of "undue hardship" simply eliminates the exception.
Accordingly, when student loans are discharged it is as part of the regular Chapter 13
discharge, rather than as a separate event. Thus, Ms. Bender was seeking a ruling on
the dischargeability of the student loans three and a half years before it could occur.

      The ripeness doctrine is rooted both in the limits of Article III of the
Constitution and "on discretionary reasons of policy." See Automotive, Petroleum
& Allied Indus. Employees Union v. Gelco Corp., 758 F.2d 1272, 1275 (8th Cir.

      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.

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1985). The Constitution charges Article III courts with the resolution of "cases and
controversies," precluding them from rendering advisory opinions. Flast v. Cohen,
392 U.S. 83, 96-97 (1968); see U.S. Const. art. III, § 2. In addition to these
constitutional concerns, the ripeness doctrine allows the federal courts to avoid
wasting scarce judicial resources in attempts to resolve speculative or indeterminate
factual issues. See National Treasury Employees Union v. United States, 101 F.3d
1423, 1431 (D.C. Cir. 1996). We find that these concerns justify the district court's
decision in this case.

       "Undue hardship" is an inherently discretionary determination, and we have
held that in applying § 523(a)(8) bankruptcy courts must consider the totality of the
circumstances. See In Re Long, 322 F.3d 549, 554 (8th Cir. 2003). For the reasons
that we have already identified, the factual question is whether there is undue
hardship at the time of discharge, not whether there is undue hardship at the time that
a § 523(a)(8) proceeding is commenced. As a matter of administrative convenience,
of course, it makes sense to commence an adversary petition to determine undue
hardship before the actual date of discharge, but such proceedings should take place
relatively close to that date so that the court can make its determination in light of the
debtor's actual circumstances at the relevant time.

       Ms. Bender in essence argues that her situation at the time of instituting this
action was so dire, and the possibility of improvement so remote, that a court could
determine whether repayment of her student loans three and a half years down the
road would constitute undue hardship. Not only would adopting Ms. Bender's view
require some degree of judicial prescience, such an early determination is unnecessary
in this case. During the period of the Benders' Chapter 13 plan, an automatic stay
protects Ms. Bender from any collection actions by Educational Credit Management,
see 11 U.S.C. § 362(a), and the Benders' plan does not require that any payments be
made on the student loans. In these circumstances, deferring adjudication of this
issue does not prejudice Ms. Bender, except with regard to the possible accrual of

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interest payments, which we regard as negligible and insufficient to justify a
premature resolution of the issue. Deferring a decision until the case is ripe will
allow a court to make its undue hardship determination on the basis of real rather than
speculative circumstances.

      Affirmed.
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