In Re: GEOFFREY IFENAY EKENASI v.  the Education Resources Institute; Pennsylvania Higher Education Assistance Agency

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 In Re: GEOFFREY IFENAY EKENASI,
Debtor.
GEOFFREY IFENAY EKENASI,
Plaintiff-Appellee,
v.
No. 02-1239  THE EDUCATION RESOURCES
INSTITUTE; PENNSYLVANIA HIGHER
EDUCATION ASSISTANCE AGENCY,
Defendants-Appellants,
and
DEBRA A. WERTMAN,
Trustee. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-01-185-2, BK-97-21233, AP-98-0051)
Argued: February 24, 2003
Decided: April 16, 2003
Before TRAXLER and SHEDD, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Reversed by published opinion. Judge Traxler wrote the opinion, in
which Judge Shedd and Senior Judge Beam joined.

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COUNSEL
ARGUED: Steven Leftridge Thomas, KAY, CASTO & CHANEY,
P.L.L.C., Charleston, West Virginia, for Appellants. Andrew Steven
Nason, PEPPER, NASON & HAYES, Charleston, West Virginia, for
Appellee.
OPINION
TRAXLER, Circuit Judge:
The Education Resources Institute and Pennsylvania Higher Edu-
cation Assistance Agency ("Appellants") appeal an order of the dis-
trict court affirming the bankruptcy court’s order discharging
Geoffrey Ifenay Ekenasi’s student loan debts pursuant to 11 U.S.C.A.
§ 523 (West 1993 & Supp. 2002). Because we conclude that the bank-
ruptcy court clearly erred in discharging Ekenasi’s student loans more
than two years before Ekenasi’s scheduled completion of his con-
firmed Chapter 13 plan, we reverse.
I.
Ekenasi is a native of Nigeria. He obtained a degree in political sci-
ence at the University of Lagos, Nigeria, in 1978. In the late 1980s,
he emigrated to the United States. Upon arriving in this country, he
worked briefly in a factory and, for several years, as a taxi driver in
New York City.
While working as a taxi driver, Ekenasi learned that he could
attend law school in the United States and pay for his postgraduate
education through student loans sponsored by the federal government.
He was accepted to the West Virginia University College of Law,
enrolled in classes in 1992, and graduated on schedule in 1995. In
1997, Ekenasi passed the West Virginia bar examination and obtained
a license to practice law in that state. All of this was made possible
by his receipt of nearly $90,000 in government-sponsored student
loans.
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In August 1997, Ekenasi filed a petition for bankruptcy under
Chapter 13 of the Bankruptcy Code and a proposed Chapter 13 Plan
(the "Plan"). At the time, Ekenasi was employed as a paralegal with
the West Virginia Tax Department, a temporary position he had
accepted while studying to pass the bar examination and seeking
employment as a licensed attorney. As a paralegal, Ekenasi was earn-
ing a salary of approximately $22,000 per year and a net monthly
income of $1,480. He claimed total monthly expenses of $1,180,
which included a $253 student loan payment. His petition also
claimed six children of minority age who resided with him in the
United States. Ekenasi estimated the non-priority, unsecured claims
against him to be $89,418 in student loan debt and $55,494 in other
unsecured debt, for a total of $144,912.
Based upon his income and expenses, including the $253 per
month student loan payment, Ekenasi claimed excess income of $300
per month. He proposed to make scheduled payments in the amount
of $300 per month to the bankruptcy trustee for 60 months for distri-
bution towards his "general unsecured" (i.e., non-student loan) credi-
tors only, while continuing to make his student loan payment directly
to the student loan creditors. The Plan proposed that "cause exist[ed]"
to extend Ekenasi’s payment of the debt "over a period of more than
36 months" due to Ekenasi’s desire "to pay student loans outside [the
Plan] and pay 27% of [the] general unsecured debt through the
trustee." J.A. 46. See 11 U.S.C.A. § 1322(d) (West Supp. 2002) (pro-
viding that a Chapter 13 "plan may not provide for payments over a
period that is longer than three years, unless the court, for cause,
approves a longer period, but the court may not approve a period that
is longer than five years").
In February 1998, the bankruptcy court entered an order confirm-
ing Ekenasi’s Chapter 13 Plan. Thus, Ekenasi’s approved Plan,
including its exception of the student loan creditors from any portion
of the $300 payment made to the bankruptcy trustee, was premised
upon his choice to continue making the student loan payment outside
the Plan and directly to the student loan creditors. Ekenasi also
obtained an extended payment period towards his other unsecured
creditors by pointing to the very same choice.
Then, in May 1998, Ekenasi instituted this adversary proceeding,
seeking a discharge of his student loan debts in their entirety on the
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basis that they imposed an undue hardship upon him. Since filing his
Chapter 13 Plan, however, Ekenasi had passed the West Virginia bar
examination and secured employment as an attorney with the West
Virginia Bureau of Child Support Enforcement with a starting salary
of $36,000 per year. In his complaint, Ekenasi represented that he was
"unmarried but living in the same household as his ex-wife with his
six (6) children ranging in age from four (4) years to seventeen (17)
years old." J.A. 54. By 1999, Ekenasi’s salary had increased to
$39,899 and, by the time trial in the adversary proceeding com-
menced in December 2000, Ekenasi’s salary had increased to $42,000
per year — nearly double the $22,000 salary he was earning when he
filed his proposed Chapter 13 Plan claiming $300 in excess monthly
income. Also by this time, two of the six children residing with
Ekenasi in this country had achieved majority status. However,
Ekenasi testified that he had three additional children (ages 18, 11 and
9) living in Nigeria who were dependent upon him for support and
that he was subject to a Nigerian court order for such support in the
monthly amount of $300 per child.
In January 2001, the bankruptcy court entered an order granting
Ekenasi a complete discharge of his student loan debts based on
undue hardship. Although noting that Ekenasi had the education nec-
essary to practice law, the bankruptcy court found that Ekenasi’s
nationality and language skills "impose[d] a barrier to [his] practicing
law in a private practice setting or in a corporate setting." J.A. 232.
Additionally, the bankruptcy court found that Ekenasi had nine chil-
dren who were dependent upon him for support, including three chil-
dren in Nigeria to whom he was obligated under a foreign support
order requiring him to pay $900 per month. Based primarily upon
these factors, the bankruptcy court found that Ekenasi "[did] not pos-
sess a reasonable likelihood of an increase in income" and would not
likely "have additional disposable income to utilize towards paying
back these student loans" after he completed payments under the
Chapter 13 Plan. J.A. 233. These findings were made approximately
two years before the scheduled conclusion of Ekenasi’s Chapter 13
Plan. The district court affirmed on appeal.
II.
Because the district court "act[ed] in its capacity as a bankruptcy
appellate court, we review the bankruptcy court’s decision indepen-
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dently." Banks v. Sallie Mae Servicing Corp. (In re Banks), 299 F.3d
296, 300 (4th Cir. 2002). We review the bankruptcy court’s factual
findings for clear error and its legal conclusions de novo. See Kielisch
v. Educational Credit Mgmt. Corp. (In re Kielisch), 258 F.3d 315,
319 (4th Cir. 2001).
We begin with a brief summary of the Chapter 13 statutory provi-
sions that are pertinent to the proceeding before us. See 11 U.S.C.A.
§§ 1301-1330 (West 1993 & Supp. 2002). As an alternative to liqui-
dation under Chapter 7, Chapter 13 of the Bankruptcy Code allows
a debtor to propose and file a plan for payment to his creditors from
his regular income, see 11 U.S.C.A. § 1321, within certain parame-
ters, see 11 U.S.C.A. § 1322. After the petition and plan are filed, and
notice is given, the bankruptcy court conducts a hearing on confirma-
tion of the plan, at which time any party in interest may object to con-
firmation. See 11 U.S.C.A. §§ 1324, 1325. A Chapter 13 plan may not
exceed a period longer than three years, unless the bankruptcy court
approves a longer period "for cause." 11 U.S.C.A. § 1322(d). The
bankruptcy court, however, "may not approve a period that is longer
than five years." 11 U.S.C.A. § 1322(d).
Once a debtor has satisfied his payments under the confirmed plan,
the bankruptcy court grants the debtor a discharge of all debts pro-
vided for by the plan, see 11 U.S.C.A. § 1328(a), but not those debts
which are nondischargeable under 11 U.S.C.A. § 523(a).1 The debtor
remains personally responsible for all such nondischargeable debts.
1The Chapter 13 statutory scheme provides that:
(a) As soon as practicable after completion by the debtor of all
payments under the plan, unless the court approves a written
waiver of discharge executed by the debtor after the order for
relief under this chapter, the court shall grant the debtor a dis-
charge of all debts provided for by the plan or disallowed under
section 502 of this title, except any debt —
. . .
(2) of the kind specified in paragraph (5), (8), or (9) of section
523(a) of this title. . . .
11 U.S.C.A. § 1328(a) (West Supp. 2002).
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See In re Kielisch, 258 F.3d at 318 n.1; Internal Revenue Serv. v.
Cousins (In re Cousins), 209 F.3d 38, 40 (1st Cir. 2000).
Student loans, as a general rule, fall within the category of nondis-
chargeable debts and pass through the bankruptcy process unaffected.
See In re Kielisch, 258 F.3d at 320 (noting that Chapter 13 debtors
ordinarily "remain personally responsible for their nondischargeable
student loan debts, and those debts pass or ride through the bank-
ruptcy unaffected and are a postbankruptcy liability of the former
debtor") (internal quotation marks omitted). The federal government,
under the Guaranteed Student Loan Program, "serves as guarantor of
unsecured student loans and subsidizes interest payments on those
loans." In re Kielisch, 258 F.3d at 319 (internal quotation marks omit-
ted). However, Congress has also provided that such government-
guaranteed student loans are nondischargeable in bankruptcy proceed-
ings unless the debtor can demonstrate that repayment of the loans
would constitute an "undue hardship." 11 U.S.C.A. § 523(a)(8) (West
Supp. 2002).2 The exception of such government-sponsored student
loan debts from discharge in bankruptcy "‘was enacted to prevent
indebted college or graduate students from filing for bankruptcy
immediately upon graduation, thereby absolving themselves of the
obligation to repay their student loans.’" In re Kielisch, 258 F.3d at
320 (quoting Tennessee Student Assistance Corp. v. Hornsby (In re
Hornsby), 144 F.3d 433, 436-37 (6th Cir. 1998)).3
2Section 523(a) provides that:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or
1328(b) of this title does not discharge an individual debtor from
any debt—
. . . .
(8) for an educational benefit overpayment or loan made, insured
or guaranteed by a governmental unit, or made under any pro-
gram funded in whole or in part by a governmental unit or non-
profit institution, or for an obligation to repay funds received as
an educational benefit, scholarship or stipend, unless excepting
such debt from discharge under this paragraph will impose an
undue hardship on the debtor and the debtor’s dependents. . . .
11 U.S.C.A. § 523(a)(8) (West Supp. 2002).
3Originally, the nondischargeability of student loans applied only to
Chapter 7 bankruptcies, which had the effect of providing debtors with
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In order to determine the dischargeability of student loans, the
debtor must bring an adversary proceeding, see Fed. R. Bankr. P.
7001(6), and prove undue hardship, see 11 U.S.C.A. §§ 523(a)(8),
1328(a)(2). Although the bankruptcy code does not define "undue
hardship," most courts have adopted a three-part test to determine
whether a debtor has shown "undue hardship" within the meaning of
§ 523(a)(8). See Brunner v. New York State Higher Educ. Servs.
Corp., 831 F.2d 395, 396 (2d Cir. 1987) (per curiam). Under this test,
the debtor must establish (1) that he cannot maintain a minimal stan-
dard of living for himself and his dependents, based upon his current
income and expenses, if he is required to repay the student loans; (2)
that additional circumstances indicate that his inability to do so is
likely to exist for a significant portion of the repayment period of the
student loans; and (3) that he has made good faith efforts to repay the
loans. See id. at 396.
III.
We first address Appellants’ contention that Ekenasi’s adversary
proceeding seeking a discharge of his student loan obligations as an
"undue hardship" was premature. More specifically, they urge us to
follow those courts that have held that student loan hardship cases are
never ripe for adjudication in a Chapter 13 case until near or at the
time of completion of the Chapter 13 plan. See Pair v. United States
(In re Pair), 269 B.R. 719, 720-21 (Bankr. N.D. Ala. 2001); Soler v.
United States (In re Soler), 250 B.R. 694, 697 (Bankr. D. Minn.
2000); Raisor v. Education Loan Servicing Ctr., Inc. (In re Raisor),
180 B.R. 163, 167 (Bankr. E.D. Tex. 1995). Appellants argue that this
interpretation is implicit in the language of §§ 1328 and 523(a)(8),
which focuses on the debtor’s circumstances at the point of discharge.
Ekenasi, on the other hand, urges us to follow those cases that allow
a debtor to seek a hardship determination at any time of his choosing.
He contends the debtor may choose "the date of the ‘snapshot’ which
an incentive to file Chapter 13 plans and discharge their student loan
debts at the conclusion of the plan payments without a showing of undue
hardship. See In re Kielisch 258 F.3d at 320. Congress eliminated this
incentive when it amended the statute in 1990 to extend the nondischar-
geability of student loans to Chapter 13 filings. See id.
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the [c]ourt must examine for Brunner purposes." Goranson v. Penn-
sylvania Higher Educ. Assistance Agency (In re Goranson), 183 B.R.
52, 56 (Bankr. W.D.N.Y. 1995); see United Student Aid Funds, Inc.
v. Taylor (In re Taylor), 223 B.R. 747, 751 (B.A.P. 9th Cir. 1998).
As Appellants correctly observe, the Brunner factors, which were
developed in the context of an adversary proceeding brought to dis-
charge student loan obligations at the conclusion of a Chapter 7 pro-
ceeding, do not transfer neatly to an adversary proceeding brought to
discharge student loan obligations in the midst of the debtor’s
attempts to comply with a confirmed Chapter 13 plan. Brunner
requires the debtor to establish that he "cannot maintain, based on
current income and expenses, a ‘minimal’ standard of living" for him-
self and his dependents if he is forced to repay the student loans and
that this condition will "likely . . . persist for a significant portion of
the repayment period of the student loans." Brunner, 831 F.2d at 396
(emphasis added).
In a Chapter 7 case, the bankruptcy proceeding is short-lived and
the debtor achieves a quick discharge of his unsecured, dischargeable
debts. Thus, predicting whether the debtor’s current inability to main-
tain a minimal standard of living will persist throughout a significant
portion of the repayment period is based upon a known, current situa-
tion. Where an adversary proceeding seeking a discharge of student
loan obligations is brought early in a Chapter 13 case, however, the
question of whether the debtor will be unable to maintain a minimal
standard of living throughout a significant portion of the repayment
period must be premised upon a prediction of what the debtor’s situa-
tion will be at the conclusion of the Chapter 13 plan which, as here,
may extend up to five years.
Having carefully considered these problems, as well as other ratio-
nales underlying the opposing viewpoints that have developed on this
issue, we decline to adopt a hard and fast rule which would preclude
bankruptcy courts from ever entertaining a proceeding to discharge
student loan obligations until at or near the time the debtor has com-
pleted payments under a confirmed Chapter 13 plan. The text of the
pertinent statutes does not prohibit such an advance determination
and, although cognizant of the policy concerns expressed by Congress
in its refusal to discharge such loans, we can envision exceptional cir-
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cumstances where the Brunner factors could be predicted with suffi-
cient certainty in advance of the conclusion of a Chapter 13
proceeding. Nevertheless, while we do not preclude debtors from
seeking a discharge determination of student loan debts prior to the
completion of payments under a confirmed Chapter 13 plan, our cog-
nizance of those policy concerns also counsels us to emphasize that
it will be most difficult for a debtor, who has advanced his education
at the expense of government-guaranteed loans, to prove with the req-
uisite certainty that the repayment of his student loan obligations will
be an "undue burden" on him during a significant portion of the
repayment period of the student loans when the debtor chooses to
make that claim far in advance of the expected completion date of his
plan.
IV.
Thus, we turn to the bankruptcy court’s application of the Brunner
factors to Ekenasi’s claim that repayment of his student loan obliga-
tions will constitute an undue burden upon him. For the reasons which
follow, we conclude that the bankruptcy court clearly erred in finding
that Ekenasi met his burden of establishing the Brunner factors and,
therefore, erred in discharging the student loan obligations based upon
the record before it.
A.
With the assistance of government-sponsored student loans,
Ekenasi successfully achieved a postgraduate law degree in the ordi-
nary three-year period, passed his state’s bar examination, and
received a state license to practice law in 1997. Ekenasi filed his
Chapter 13 petition and proposed Chapter 13 Plan in August of that
same year. According to Ekenasi’s representations in that proceeding,
he had an annual income of $22,000 per year, a net monthly income
of $1,480 and, after payment of his expenses in the amount of $1,180
(including a $253 per month student loan payment), $300 in dispos-
able income available to pay his other unsecured creditors. Although
entitled to an automatic stay of his student loan obligation, see 11
U.S.C.A. § 362(a) (West 1993 & Supp. 2002), Ekenasi proposed a
plan that excepted his student loan creditors from any portion of the
$300 payment by proposing to pay the $253 student loan payment
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directly to those creditors. He also obtained an extended 60-month
payment period "for cause" by pointing to that same obligation. He
obtained confirmation of the Plan in February 1998.
A mere three months later, in May 1998, Ekenasi filed this adver-
sary proceeding, seeking a complete discharge of the student loan
debt and, thereby, the $253 monthly payment. Also in 1998, Ekenasi
secured employment as an attorney, an opportunity afforded by the
very loans he now seeks to discharge. His annual income rose to
$36,000 per year and, by the time of the trial in December 2000, had
increased again to $42,000 — nearly double the income upon which
the Plan was originally based. Ekenasi’s net monthly income had
increased from $1,480 to approximately $2,800. But, after eliminating
any payment for student loans, Ekenasi claimed that his expenses had
risen from $1,480 (a figure which included the bankruptcy payment)
to $3,831. Ekenasi had apparently not been making the $253 monthly
student loan payment, but testified at trial in December 2000 that he
was current on his $300 monthly bankruptcy payments to the trustee
in his Chapter 13 case.
Presented with this evidence, we are satisfied that the bankruptcy
court clearly erred in finding that Ekenasi had sufficiently proven that
he would be unable, two years in the future, to maintain a minimal
standard of living for himself and his dependents for a significant por-
tion of the repayment period of the student loan.
The evidence of Ekenasi’s projected income and expenses is sim-
ply too speculative to substantiate the findings made by the bank-
ruptcy court on this issue. For example, at the time of the adversary
proceeding, Ekenasi claimed responsibility to pay $900 a month pur-
suant to a Nigerian court support order for his three children living
in that country. However, he testified during the adversary proceeding
that he was not fulfilling that obligation.4 Ekenasi also claimed that
4Appellants alternatively contend that Ekenasi has no legal obligation
to pay child support pursuant to the Nigerian court order because there
was no evidence that the Nigerian support order was entered in West Vir-
ginia to entitle it to full faith and credit. We need not decide this issue.
However, we do take note of its problematic nature. Ekenasi sought to
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all nine children were dependent upon him for support, and that he
received no financial assistance from their mothers, yet he testified
that he claimed only two dependents on his 1997 federal tax return,
three dependents on his 1998 tax return, and three dependents on his
1999 tax return.
The speculative nature of the bankruptcy court’s findings at the
time are also highlighted by the circumstances that now exist, if we
presume that Ekenasi has remained current in his Chapter 13 Plan
payments since the adversary proceeding. Ekenasi will have com-
pleted his obligations under the Plan to his general unsecured credi-
tors and will be eligible for a discharge of those debts in their entirety.
Three of his six children living in this country have reached majority-
age status, leaving only three minority-age children (ages 9, 11, and
15) in this country currently dependent, or partially dependent, upon
Ekenasi for support. We can presume that his oldest child living in
Nigeria is also 18 years old; the other two are 11 and 9 years of age.
Finally, we note Appellants’ argument that Ekenasi’s situation in
many ways represents the very abuses that Congress sought to prevent
in prohibiting the discharge of student loan obligations. These abuses
are particularly apparent where, as here, the student loan obligations
have actually resulted in an educational opportunity that has likely
enhanced the student’s monthly earning potential to a level that
rely, at least in part, upon the Nigerian support obligation as an expense
which should be considered in determining whether he should obtain a
discharge of his government-sponsored student loan debt. Ekenasi, how-
ever, did not include this expense in his Chapter 13 Plan. He also admit-
ted at the adversary proceeding that he was not complying with the order
and, to the extent he sent money for the support of his children in Nige-
ria, he did so through other family members and not pursuant to the
order. If Ekenasi has a legally enforceable obligation in this country to
pay the obligation in Nigeria — a fact that is far from clear in the record
— then it would fairly be considered an expense to be weighed in the
"undue hardship" analysis. However, it would be inappropriate for the
bankruptcy court to consider a purported obligation to pay a foreign sup-
port order which is not legally enforceable and which is not being ful-
filled in order to relieve Ekenasi of a legally enforceable obligation to
pay student loan debts guaranteed by the federal government.
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exceeds the monthly obligation associated with the very education
that created that potential.
B.
We also conclude that Ekenasi failed to prove that he "has made
good faith efforts to repay the loans," Brunner, 831 F.2d at 396, and
that the bankruptcy court clearly erred in finding otherwise. Of partic-
ular note, Ekenasi obtained approval of the Chapter 13 Plan to pay
$300 in disposable income to unsecured creditors other than student
loan creditors based upon his election to pay $253 to the student loan
creditors outside the Plan. Although he presented evidence of his
good faith attempts to pay the student loan payments prior to filing
his Chapter 13 petition and Plan, he has not presented such evidence
of a good faith attempt to make the student loan payments he included
in the confirmed Chapter 13 Plan. Instead, Ekenasi filed the adversary
proceeding to discharge the student loan debt in its entirety within a
mere three months of obtaining that confirmation. Cf. Brunner v. New
York State Higher Educ. Servs. Corp. (In re Brunner), 46 B.R. 752,
758 (S.D.N.Y. 1985) (finding that debtor failed to establish good faith
in a Chapter 7 proceeding where she "filed for discharge within a
month of the date the first payment of her loans came due. . . [,] made
virtually no attempt to repay, [and never] requested a deferment of
payment").
C.
To conclude, although we decline to hold that Chapter 13 precludes
a bankruptcy court from ever entertaining an adversary proceeding to
discharge student loan debts until at or near the time that the debtor
completes payments under a confirmed Chapter 13 plan, we are satis-
fied that the bankruptcy court clearly erred in finding that Ekenasi had
established undue hardship under Brunner upon the record before it.
After emigrating to this country, Ekenasi sought and obtained a post-
graduate, specialized education made possible by government-
sponsored student loans. As a result of his education, he made a suc-
cessful career transition from taxi driver to state-employed attorney.
His financial circumstances are serious, especially given his paternal
obligations. However, it does not appear that they are more serious or
dire than they were before he entered law school. Although the record
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on this point is not as developed as it should be, we must assume that
Ekenasi is earning a higher monthly income as a state-employed attor-
ney than he was earning as a taxi driver and, therefore, that he is not
in a financially worse position than he was when he entered law
school, even excepting the scheduled student loan payment. In other
words, the financial benefit of his higher education may well be more
than sufficient to cover the financial obligation associated with it.
This is not to say that he may not obtain a partial or total discharge
of those debts, but it was indeed premature under these circumstances
for the bankruptcy court to find that Ekenasi would not be able to
repay at least a portion of the loan that had helped improve his earn-
ing potential. If we do not demand at least a fair inquiry into this
question, we risk encouraging those in difficult financial situations to
utilize government-sponsored student loans to achieve higher income
without any concomitant accountability to repay that which enabled
that achievement.
V.
For the foregoing reasons, we reverse the district court’s decision
affirming the bankruptcy’s discharge of Ekenasi’s student loan debt
owed to Appellants.
REVERSED
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