Eric S. Poynter v. UNITED STATES OF AMERICA, Department of Education

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC S. POYNTER,
Debtor - Appellant,
v.
UNITED STATES OF AMERICA,
Department of Education,
Appellee.
No. 10-56751
D.C. No. 3:10-cv-01041-H-CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted March 5, 2012
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
Eric Poynter filed a Chapter 7 bankruptcy petition on October 28, 1993. In
March 1994, he received a discharge. In September 2008, Poynter reopened his
bankruptcy proceedings. He sought a declaration that his discharge covered two
FILED
MAR 26 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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1985 educational loans held by the Department of Education. The bankruptcy court
ruled the loans were not dischargeable, and the district court affirmed. We have
jurisdiction under 28 U.S.C. § 158(d)(1). We affirm.
We review de novo an appeal from the district court’s decision on appeal
from the bankruptcy court. In re JTS Corp., 617 F.3d 1102, 1109 (9th Cir. 2010).
We review the bankruptcy court’s findings of fact for clear error and its
conclusions of law de novo. Id.
When Poynter filed for bankruptcy, his student loans were dischargeable if
they “first became due more than 7 years . . . before the filing of the [bankruptcy]
petition.” 11 U.S.C. § 523(a)(8)(A) (1990). Thus, in order for Poynter’s loans to be
dischargeable, they must have become due no later than October 27, 1986. Poynter
argues that two provisions of the promissory notes independently caused the loans
to become due by this date.
First, Poynter invokes a term that gave him a six-month grace period before
repayment. The grace period would begin when he “le[ft] school or cease[d] to
carry at least one-half the normal academic workload.” Poynter argues his grace
period ended in September 1986 because he “cease[d] to carry at least one-half the
normal academic workload” when he stopped attending most of his classes in
March 1986. We reject the argument. The date the grace period began turned on

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enrollment, not attendance. Poynter was enrolled in more than one-half of a normal
academic load as late as September 1986. His grace period ended less than seven
years before his bankruptcy petition.
Our reading follows the “ordinary and popular sense” of “carry.” Cal. Civ.
Code § 1644. In the educational context, “carry” typically refers to responsibility
for courses, which in turn depends on formal enrollment. See The American
Heritage Dictionary 294 (3d ed. 1992). Our reading also “give[s] effect to every
part” of the promissory notes. Cal. Civ. Code § 1641. Equating “carry” with
“attendance” would make the phrase “leav[ing] school” redundant.
Second, Poynter invokes a term that provided the loans would become
“immediately due and payable” upon default. Poynter argues the loans became due
under this term at the end of the Spring 1986 semester because he “fail[ed] . . . to
notify [the] lender . . . of a change in . . . enrollment status.”
We reject the argument. The failure to notify the lender of a change in
enrollment status was not the pivotal factor. We recognize that the failure to notify
the lender “could” constitute default. That does not equate to “must” constitute
default. Rather, the promissory notes contemplate that default is declared by the
lender. Even in the case of default, the lender had discretion over when to demand
repayment. See In re Scott, 147 F.3d 788, 790 (8th Cir. 1998). Nothing in the

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record even suggests that the lender demanded repayment more than seven years
before Poynter filed for bankruptcy.
AFFIRMED.

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