IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's Adversary Complaint (Doc. 1), which seeks a

determination that repayment of the student loan debt owed to the Defendant, Educational Credit

Management Corporation (ECMC), would constitute an undue hardship and, therefore, that the debt is

dischargeable pursuant to 11 U.S.C. § 523(a)(8).1 The Court conducted a trial on this matter, reviewed

all the evidence submitted in this case, and is now prepared to rule. The Court has jurisdiction to hear this

matter.2

1All future statutory references are to the Bankruptcy Code, 11 U.S.C. § 101, et seq., unless otherwise specified.

228 U.S.C. § 1334 and 28 U.S.C. § 157(b)(2)(I) (core proceeding).

3Because Barbara Quarles is the only party with student loan debt at issue in this case, she will be referred to as Debtor in this opinion. Although Dana Quarles is also a Debtor in the underlying bankruptcy case, he will not be referred to as such for purposes of this adversary proceeding.

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but did not want to convey to Ms. Quarles, who was present in the courtroom during their testimony, that they did not believe she could improve, or that further therapy would be hopeless. Dr. Console opined that Ms. Quarles would not be able to work for at least the next five years, but declined to predict her situation beyond that point.4 Defendant produced no medical evidence to contradict the testimony from Debtor's medical experts.

10.     The Debtors currently live with Ms. Quarles' mother and share some of their living expenses with her. The Debtor's mother is approximately 85 years old. Despite her own deteriorating health, including high blood pressure, a heart condition, and compression fractures in her back and neck, her mother works approximately twelve hours per day,

4Given the testimony concerning Ms. Quarles' inability to work in any meaningful capacity for the foreseeable future, the Court is curious why Debtor did not seek a medical discharge for the student loans. The Court recognizes that Debtors' counsel may have explored this option and in his judgment determined that seeking an undue hardship discharge was more appropriate or beneficial under the facts of this case, or may have been unaware that such an option existed. However, the Court takes this opportunity to urge all attorneys to pursue available non-judicial remedies, such as a medical discharge of student loans, prior to engaging in judicial proceedings, which are usually more expensive and time consuming. In making this statement, the Court is not, in any way, ruling that the facts of this case are sufficient to meet the requirements for a medical discharge of student loans; that issue is not before it. Rather, the Court is simply trying to encourage counsel to review all available options to potentially save litigation costs.

5In her bankruptcy schedules dated March 26, 2002, Debtor indicated her Social Security

benefit was $1,079 a month. Between date of filing and trial, her benefits had increased by $42/month, probably representing an approximate 2% cost of living increase per year.

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seven days per week. It is simply unknown how much longer she will be able to contribute significantly to the household expenses.

11.     Debtor's mother was forced to file a bankruptcy petition, herself, as she had co-signed some of the business debt that Debtor had incurred before her own business failed. She drives a nine year old car, and her house is fully encumbered, because she encumbered the house with mortgages to assist Debtor with her business before it failed.

12.     There is little likelihood that Debtor will receive any significant inheritance, because she has four siblings with whom any inheritance would be shared and because her mother has few assets, as at least a partial result of her own bankruptcy.

13.     The Debtors initially claim that their monthly living expenses total approximately $2,573. However, testimony at trial showed that this number is not completely accurate, at least based on medication expense documentation. The evidence at trial showed that the Debtor had overstated her monthly medical expenses by $120, but understated her car expense by $360 a month. Therefore, the Court finds that both Debtors' actual monthly expenses, at the time of the trial on this matter, were $2,813, against joint monthly income of approximately $2600.

14.     Debtor testified, and this Court accepts, that the reason for this overstatement of medical expense is due to the fact that although she needs the medications she included in her expenses, she has foregone renewals of back pain prescriptions because she has insufficient assets to fill both those prescriptions and her anti-depressant medications, which she has deemed more critical. She has chosen to endure the back pain in order to have funds to pay for the medication that keeps her mentally stable. Her medical expenses would essentially match the amount claimed in Exhibit K if she actually filled all her required prescriptions, which number at least six different prescribed medications. That would increase the monthly household deficit to approximately $330, rather than $213.

15.     The medical experts corroborated that Ms. Quarles sometimes does not even take her anti-depressant medications as prescribed, because of her lack of funds, and that it makes it more difficult to treat Ms. Quarles when she self-adjusts her medication regimen.

16.     Debtor, at the time of trial, had recently learned that in the near future, she would be required to purchase a Medi-gap policy at the cost of $170/month. There is no provision for this amount in the budget before the Court.

17.     ECMC contends that, when analyzing the Debtor's financial situation, the Court should consider that these Debtors will be paying off their car loan within the next year and that the $360 per month used to pay for that nine year old car (1995 Riviera) will be eliminated

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within the next year. The Court finds that this $360 car payment is not included in Exhibit K, which was used by the Court when determining the Debtor's current monthly expenses, and has been added to the monthly expenses to arrive at the $2,813 number in paragraph 13, above.

18.     Debtor owes approximately $47,800 in priority taxes, which were not discharged in this bankruptcy, and for which she was, at time of trial, receiving collection notices for immediate repayment. Debtors' budget provides no amounts for repayment of these taxes, or the interest that will accumulate thereon until paid.

2.     CONCLUSIONS OF LAW

   The Bankruptcy Code creates a presumption that student loans are non-dischargeable in the

absence of undue hardship to the debtor or the debtor's dependents.6 The Debtor has the burden of

proving that the student loan is dischargeable.7

The Tenth Circuit recently adopted the three-part Brunner test for analyzing whether a debtor has

shown that his or her student loan debt should be discharged because it would cause undue hardship.8

Under this test, a debtor must prove:

1.       that the debtor cannot maintain, based on current income and expenses, a minimal standard of living for herself or her dependents if forced to repay the loans;

2.       that additional circumstances exist indicating 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.9

611 U.S.C. § 523(a)(8).

7See In re Lindberg, 170 B.R. 462 (Bankr. D. Kan. 1994).

8Educational Credit Management Corp. v. Polleys (In re Polleys), 356 F.3d 1302, 1309

(10th Cir. 2004) (holding that the Tenth Circuit would adopt three-prong test established by Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2nd Cir. 1987)).

9Id. at 1307.

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Under this test, if the court finds the debtor has failed to prove any of these three elements, the inquiry ends

and the student loan is not dischargeable.10 As noted recently by the Tenth Circuit Bankruptcy Appellate

Panel, the Tenth Circuit makes it clear that it disdains 'overly restrictive' interpretations of this test, and

concludes that it should be applied to 'further the Bankruptcy Code's goal of providing a 'fresh start' to

the honest but unfortunate debtor[.]'11

The first prong of the Brunner test requires Debtor to demonstrate more than simply tight

finances.12 The Court requires more than temporary financial adversity, but typically stops short of utter

hopelessness.13 A minimal standard of living includes what is minimally necessary to see that the needs

of the debtor and [her] dependants are met for care, including food, shelter, clothing, and medical

treatment.14 Further, a court should also be hesitant to impose a spartan life on family members who do

not personally owe the underlying student loan, particularly when those family members are children.15

The second prong of the Brunner test, which requires that additional circumstances exist indicating

that the Debtor will be unable to repay the loans and maintain a minimal standard of living for a significant

portion of the repayment period, properly recognizes that a student loan is viewed as a mortgage on the

10Id.

11Alderete v. Educational Credit Management Corporation, B.A.P. No. NM-02-089, slip

op. at 9 (B.A.P. 10th Cir., April 16, 2004).

12See Innes v. State of Kansas, et al. (In re Innes), 284 B.R. 496, 504 (D. Kan. 2002).

13 Id.

14 Id.

15 Windland v. United States Dept. of Education (In re Windland), 201 B.R. 178, 182-83

(Bankr. N.D. Ohio 1996).

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debtor's future.16 However, the Debtor need not show a certainty of hopelessness.17 Instead, the Court

must take a realistic look into the Debtor's circumstances and the Debtor's ability to provide for adequate

shelter, nutrition, health care, and the like.18

The third prong of the Brunner test requires the Court to determine if the Debtor has made a good

faith effort to repay the loan as measured by his [or] her efforts to obtain employment, maximize income

and minimize expenses.19 The inquiry into a debtor's good faith should focus on questions surrounding

the legitimacy of the basis for seeking a discharge.20 A finding of good faith is not precluded by a debtor's

failure to make a payment.21 Undue hardship encompasses a notion that a debtor may not willfully or

negligently cause his own default, but rather his condition must result from factors beyond his control.22

3.    ANALYSIS

   1.     Debtor cannot maintain a minimal standard of living if forced to repay the loans.

4. The first element Debtor must prove in order to show that repaying her student loans would create

an undue hardship is that she cannot maintain, based on current income and expenses, a minimal standard

16Polleys, 356 F.3d at 1310 (internal quotations omitted).

17Id.

18Id.

19In re Innes, 284 B.R. at 510.

20In re Polleys, 356 F.3d at 1310.

21In re Innes, 284 B.R. at 510.

22In re Faish, 72 F.3d 298, 305 (3rd Cir. 1995).

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of living for herself or her dependents if forced to repay the loans.23 The parties have raised two issues

regarding this prong of the Brunner test. First, the parties disagree on whether the Court should include

all, or at least a portion, of the Debtor's husband's and mother's income in the analysis. Second, there was

disputed testimony concerning the Debtor's actual current monthly expenses.

1.      The Court will not consider Debtor's mother's income.

ECMC contends that because Debtor lives with her mother, and they share some expenses, that

her mother's income should be included when determining whether the Debtor can repay her student loans

and still maintain a minimal standard of living. In support of this contention, ECMC relies upon In re

Archibald,24 wherein the court included the substantial income of the debtor's live-in boyfriend in the first

prong of the Brunner analysis.

In Archibald, the debtor was approximately 46 years old and had been living with her boyfriend

for approximately four years. The boyfriend made $90,000 a year and apparently paid all of the household

expenses other than the cable bill and some of the food bills (the debtor paid approximately $375 total

towards household expenses). The Archibald court correctly refused to ignore the boyfriend's income

given the substantial effect it had on the debtor's lifestyle and living expenses.

The Court finds that the facts of this case are clearly distinguishable from those in Archibald.

First, the Court believes that including a live-in boyfriend's income is completely different than including a

parent's income in the Brunner analysis. In including the live-in boyfriend in Archibald, the court impliedly

recognized that he had essentially taken on the role of a spouse when it came to the financial affairs

23In re Polleys, 356 F.3d at 1307.

24280 B.R. 222 (Bankr. S. D. Ind. 2002).

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involving himself and the debtor. It is very reasonable to expect a spouse, or in certain circumstances a

live-in boyfriend or girlfriend, will contribute to the debtor's monthly expenses and, therefore, free up funds

to be used to repay the student loan. In fact, that is precisely what was taking place in Archibald.

However, the Court does not expect an elderly, ill parent to assume such a role without evidence to

establish that the parent is regularly and substantially contributing to the debtor's monthly living expenses,

similar to the role played by a spouse.

Second, Debtor's mother is approximately 85 years old and is not in good health. She suffers from

high blood pressure, has a heart condition, and compression fractures in her back and neck. According

to Debtor, her mother's current income is based upon working approximately twelve hours per day, seven

days per week. Although the Court certainly hopes the Debtor's mother will continue living for a long time,

the Court cannot ignore the very real possibility (if not probability) that any financial assistance the Debtor

may be receiving or could receive from her mother is not likely to continue for a significant period of time.

Finally, plaintiff nor defendant ECMC presented evidence that established what exact financial

relationship exists between the Debtor and her mother. The Court heard no evidence of the amount of the

mother's net disposable income that could be contributed to the relationship. There was evidence of the

mother's income, but less evidence of her expenses. There was testimony that the mother's monthly

medical expenses were $500-700 per month. Thus, the Court is unable to determine precisely how much

the mother could contribute, even if the mother's health and age were not dispositive, which they are. For

all these reasons, the Court denies ECMC's request that the Court consider the Debtor's mother's income

when determining whether the Debtor can repay her student loans.

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2.      Even if the Court included 100% of Debtor's husband's income when determining whether Debtor can repay the student loans while still maintaining a minimal standard of living, there would be insufficient income in light of existing debt.

The majority of courts have held that a non-debtor spouse's income should be considered when

deciding whether a debtor can afford to repay student loans.25 This Court agrees and has considered Mr.

Quarles' income in this case. The problem for ECMC is that there realistically exists no disposable income

from either Mr. Quarles or the Debtor that can be used to repay the student loans because of the existence

of a rather minimal standard of living, coupled with post-petition and non-discharged priority tax debt.

Even if the Court chose to, in effect, use 100% of Debtor's spouse's income to repay all his wife's

obligations, including the student loans and her non-discharged tax obligations, the fact of the matter is that

there is insufficient income to pay these debts while maintaining a minimal standard of living.

Evidence presented at trial showed that Debtor incurred, mostly as a result of her failed business,

over $47,000 in non-dischargeable tax debt, for which Debtor is currently being billed by taxing authorities.

The bills demand payment in full and threaten a levy on assets. Mr. Quarles also incurred large post-

petition medical bills, $9,200 of which had been rejected for repayment by his insurance company and

which was the subject of some dispute at the time of trial.

Even if the taxing authorities, hypothetically, allowed Debtor to repay the $47,000 over 10 years,

without interest, Debtor would have almost a $400/per month repayment obligation for that tax debt, alone.

25See, e.g., In re Barron, 264 B.R. 833 (Bankr. E.D. Tex. 2001); In re Dolan, 256 B.R. 230 (Bankr. D. Mass. 2000); and In re White, 243 B.R. 498 (Bankr. N.D. Ala. 1999) (citing approximately 50 cases following this approach).

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With joint income of only $2600 a month, and joint expenses of $2813,26 which includes nothing for the

tax obligation27 or the post-petition medical expenses, and does not take into account the upcoming

additional monthly expense of $170 for Medi-gap insurance, there is simply no money available for

repayment of the student loans in question, even if 100% of Mr. Quarles' income is used for this analysis.

The parties have disputed the amount of monthly living expenses of Debtor and her spouse. The

Court agrees with ECMC that of the $516 claimed by the Debtor for monthly medical expenses, only $395

was supported by the evidence. The evidence showed, however, that Debtor was selectively not filling

required prescriptions, even some for anti-depressants, which her physicians obviously had found were

medically necessary, because she did not have available income to do so. Accordingly, the Court does

not believe this family actually has $120 extra income with which to pay the student loan.

26Schedule J showed $2,573 in expenses, but Debtor had not included their $360/month car payment, making their true expenses $2933 a month. If one subtracts the $120/month in medical bills for which Debtor had no documentation, and ignores that the reason for not spending that $120 is because of lack of income, and then one adds at a minimum $400/month for tax payments, obviously, there is no income available, from either Debtor or her husband, to make any payments whatsoever on the student loans.

27Congress called, without exception, for the non-discharge of tax debts such as those Debtor incurred in her business, and for which she is personally liable, or will be, as a trust fund officer of the failed business. 11 U.S.C. § 523(a)(7). Conversely, Congress did allow for the possible discharge, under limited circumstances, of student loan debt. Thus, when a Debtor has insufficient income or resources to repay both a nondischargeable tax debt and a potentially dischargeable student loan debt, this Court must follow the will of Congress when holding, for this analysis, that the tax debt should be paid, out of disposable income, prior to the student loan.

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Furthermore, the Court rejects ECMC's assertion that the Court should also consider the fact that

the Debtor will be paying off her car within the next year,28 which would theoretically free up $360 per

month to repay on this student loan. This argument is rejected because Debtor's vehicle is now nine years

old, thus suggesting it will need to be repaired and/or replaced within the foreseeable future, and because

the budget does not include amounts for repayment of the nondischargeable tax debt or the post-petition

medical expenses.

2.     The Debtor's current situation is likely to continue for a significant portion of the repayment period of the loans.

The second prong of the Brunner test requires the Debtor to show that additional circumstances

exist indicating this state of affairs is likely to persist for a significant portion of the repayment period of the

student loans.29 The Court finds the Debtor met her burden with regard to this prong of the Brunner test.

The Debtor suffers from severe psychological problems. The Court heard testimony from two

expert witnesses, Dr. Bellows and Dr. Console, both of whom confirmed the Debtor's mental illness, and

both of whom currently treat Debtor for her mental illness. In addition, Dr. Bellows and Dr. Console both

testified that the Debtor is unable to work at this time, and that they are unsure when, or if, she will ever

be able to engage in meaningful employment in the future. This is due to the combination diagnosis she

carries (type I Bipolar mood disorder, dissociative disorder and post-traumatic stress disorder).

28There was debate concerning whether the car is scheduled to be paid off within the next year, or whether the payments will extend closer to two years. However, the Court finds such a dispute to be immaterial to the outcome of this matter.

29In re Polleys, 356 F.3d at 1307.

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At this time, it does not appear that the Debtor will be able to re-enter the workforce for several

years, if ever. As a result, the Debtor will almost certainly be reliant upon her Social Security Disability

payments and her husband's income. There is nothing in the record to indicate that either of these two

sources of funds is likely to increase in any significant amount during the repayment period of these loans.

To the contrary, the Social Security Disability payments will almost certainly not increase other than for

adjustments based upon the cost of living. In addition, her husband's limited education, work history, and

his own significant health problems show that a substantial increase in his salary is also not likely.

The Court also does not see a significant reduction in the Debtor's monthly living expenses in the

foreseeable future. As noted above, the expiring car loan is not really at issue, because this Court agrees

with Judge Pusateri, in In re Innes,30 that even if the car would soon be paid off, to completely deduct that

payment from the Debtor's monthly expenses ignores the fact that the nine year old car will almost certainly

need to be replaced at some point in the near future. Furthermore, because of the age of the car, there will

likely be an increase in maintenance costs for the aging car until it is replaced. Debtor's budget allowed

only $50 for transportation costs, and given the current price of gasoline, there is likely nothing in the budget

for maintenance costs, when they inevitably arise.

As also noted above, at the time of trial, Debtors were making no payments toward exceedingly

large non-dischargeable tax debt, and had no resources to do so. Similarly, Mr. Quarles was making no

payment towards his post-petition medical expenses, and there is no room in their budget for these

expenses, or for the upcoming $170/month Medi-gap expense.

30Innes v. State of Kansas, et al. (In re Innes), Adv. No. 95-7104 at 12 (Bankr. D. Kan. Dec. 22, 2000).

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ECMC also claimed that Mr. Quarles' child support payments will end in the coming years, freeing

up money to repay Debtor's student loans. The Court, however, notes that these payments are not

scheduled to end for almost four years (assuming there is no interest charged on the arrearage), and thus

would not provide a substantial benefit to the Debtor for a significant portion of the repayment period.

And, with the extensive other debt that this family has no apparent means to repay, even if the child support

ended in three years, there will not be excess income to repay this student loan.

The Court finds the Debtor has proven that additional circumstances exist indicating this state of

affairs is likely to persist for a significant portion of the repayment period of the student loans. Therefore,

the second prong of the Brunner test has been met.

3.     The Debtor has made a good faith effort to repay the loans.

As noted by the Tenth Circuit in Polleys, the inquiry into a debtor's good faith should focus on

questions surrounding the legitimacy of the basis for seeking a discharge.31 The third prong of the Brunner

test requires the Court to determine if the debtor has made a good faith effort to repay the loan as

measured by his [or] her efforts to obtain employment, maximize income and minimize expenses.32 A

finding of good faith is not precluded by the Debtor's failure to make a payment.33 Undue hardship

encompasses a notion that the debtor may not willfully or negligently cause his own default, but rather his

condition must result from factors beyond his control.34 Good faith will exist under Polleys when a

31In re Polleys, 356 F.3d at 1310.

32In re Innes, 284 B.R. at 510.

33Id.

34In re Faish, 72 F.3d 298, 305 (3rd Cir. 1995).

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debtor's unfortunate financial or personal circumstances are the result of factors beyond his or her

reasonable control.35

The Court finds that Debtor has made a good faith effort to repay her loans. The Debtor sought

and obtained gainful employment at various points in her life, including owning and operating a successful

business for a short time, until her mental illness caused her to be unable to maintain the pace of that

business. The Debtor has made efforts to work, but she was unable to perform even part-time work, such

as at the laundry where her mother also works, due to her mental health.

The Court finds that Debtor's appearance before this Court seeking a discharge of these student

loans is not a result of any bad faith on her part, and she has clearly not willingly or recklessly placed herself

in this position. Clearly, the Debtor's inability to repay these student loans is as a result of factors beyond

her control.

ECMC contends that the Debtor's failure to enter into the William D. Ford repayment program

shows a lack of good faith. The William D. Ford repayment program would provide the Debtor with an

opportunity to repay her student loans over a period of twenty-five years, with her payments being set as

a percentage of her annual income. At the end of the repayment period, the remaining balance of the

student loans would be forgiven. According to the evidence presented at trial, the Debtor's current monthly

payment under this plan would be approximately $126.70 per month. Debtor and her husband, even if

100% of his income was included in the analysis, do not have sufficient income to pay even this amount.

35In re Alderete, B.A.P. No. NM-02-089, at 12.

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The Court recognizes the importance of the William D. Ford program, but finds that it is nothing

more than a factor to be considered when determining whether a debtor has made a good faith effort to

repay student loans. A rejection of the income contingent repayment plan is not, in and of itself, sufficient

to show a lack of good faith on the part of the Debtor.36 Furthermore, given the rather extreme facts of

this case, the Court finds that the Debtor's rejection of the income contingent repayment plan offered by

the William D. Ford program does not show a lack of good faith on her part.

As discussed above, the Debtor's income is not likely to increase significantly in the future. As a

result, there is no reason to believe that the Debtor's payments would increase greatly from the $126.70

currently proposed (other than to reflect a nominal increase as her Social Security Disability payments

increase based upon cost of living increases). At the time of the hearing, the Debtor owed approximately

$37,661 on her student loans, and they were subject to a 4.25% annual rate of interest. Based upon these

numbers, payments of $126/month would be insufficient to even retire the interest that would accrue on her

student loans each year.

As a result, she would likely have, at a minimum, the entire current balance remaining on her student

loan debt at the conclusion of the repayment plan, which would then be forgiven by the lender.

Unfortunately, the forgiveness of this debt, which would likely come when Debtor was over 65 years old,

would be a taxable event for the Debtor, leaving her with a significant tax liability to pay at that time.37

36See In re Swinney, 266 B.R. 800, 806 (Bankr. N.D. Ohio 2001)(stating it is a difficult, although not necessarily an insurmountable burden for a debtor who is offered, but then declines the government's income contingent repayment program, to come to this Court and seek an equitable adjustment of their student loan debt).

37See In re Adler, 300 B.R. 740, 746 (Bankr. N.D. Cal. 2003) (holding that it is undisputed that debt forgiveness constitutes taxable income pursuant to 26 U.S.C. § 61(a)(12)).

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There was no evidence presented that at that time, Debtor would have any financial ability, at all, to pay

such a liability.

In addition to the tax consequences of the income contingent repayment plan, there are other

factors that justify Debtor's decision not to seek assistance from the William D. Ford program. If the

Debtor were to enter into this program, she would face the prospect of having her student loans haunt her,

with an ever-increasing balance due, for the next twenty-five years. The length of the proposed repayment,

combined with the Debtor's already fragile mental state and her precarious financial condition, would

undoubtedly create added stress to the Debtor. Ordinarily, this added stress would not be a justification

for refusing to participate in the repayment program, as most debtors incur some stress surrounding their

bankruptcy. However, Dr. Bellows and Dr. Console both testified that added stress in the Debtor's life

contributes to, if not exacerbates, her severe mental problems. This is not the typical debtor who has

difficulty dealing with stress, but rather a mentally ill debtor who is significantly harmed by added stress.38

Given the unique facts of this case, the Court finds the Debtor's failure to take part in the William

D. Ford income contingent repayment plan does not prove Debtor is acting in bad faith. Because Debtor

has shown that she has made good faith efforts to maximize her income and minimize her expenses,

including failure to refill pain and even anti-depressant medications because of insufficient income, the Court

38Cf. In re Reynolds, 303 B.R. 823, 838-41 (Bankr. D. Minn. 2004) (holding that the

consideration of the stress created by repaying the student loans and its effect on debtor's mental illness was appropriate in determining whether repayment of the loans constituted an undue hardship).

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finds she has made a good faith effort to repay the student loans. Therefore, the third prong of the Brunner

test has been met.

4.     CONCLUSION

   The Court finds that repayment of this Debtor's student loan debt would constitute an undue

hardship and it will, therefore, order that her student loans are discharged pursuant to § 523(a)(8). The

Debtor cannot, based on her current income and expenses, afford to repay this debt while maintaining a

minimal standard of living. In addition, Debtor's financial condition with relation to repaying the student

loans is likely to continue for a significant portion of the repayment period, based upon the Debtor's inability

to work for the foreseeable future. Finally, the Court finds that the Debtor has made a good faith effort to

repay the student loans, despite her failure to enter into the William D. Ford income contingent repayment

plan. Having met all three of the prongs of the Brunner test, the Debtor is entitled to a discharge of her

student loans.

IT IS, THEREFORE, BY THIS COURT ORDERED that judgment shall be entered on behalf

of the Plaintiff in this adversary proceeding. Debtor's student loan debts at issue in this matter are

discharged pursuant to 11 U.S.C. § 523(a)(8).

IT IS FURTHER ORDERED that the foregoing constitutes Findings of Fact and Conclusions

of Law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal

Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as

required by Fed. R. Bankr. P. 9021 and Fed. R. Civ. P. 58.

IT IS SO ORDERED this ______ day of April, 2004.

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____________________________________

                                               JANICE MILLER KARLIN

                        United States Bankruptcy Judge

District of Kansas

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the Memorandum and Order was deposited in the United 
States mail, postage prepaid on this _______ day of April, 2004, to the following:

Todd Luckman

2887 SW MacVicar

Topeka, Kansas 66611

N. Larry Bork

GOODELL STRATTON EDMONDS & PALMER

515 South Kansas Avenue

Topeka, Kansas 66603-3999

Darcy D. Williamson

Trustee

700 Jackson, Suite 404

Topeka, Kansas 66603

DEBRA C. GOODRICH

Judicial Assistant to:

The Honorable Janice Miller Karlin

Bankruptcy Judge

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