Lajkem et al v. JP Morgan Chase et al

OCR transcription for search; preserved printed pages are authoritative

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For The Northern District Of California

UNITED STATES BANKRUPTCY COURT

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AUTHENTICATE
U.S. GOVERNME
INFORMATION
GPO

Entered on Docket
July 27, 2011

GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA

FILED

Vs.
JP MORGAN CHASE BANK, ET AL,

Defendants.

gi
raprey
yrited S95 ee STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re ] Case No. 10-56363-ASW
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SALEH LAJKEM and ] Chapter 7
ROSALBA C. RAMIREZ ]
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Debtors. ]
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SALEH LAJKEM and ] Adv. Proc. No. 11-5060
ROSALBA C. RAMIREZ, ]
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Plaintiffs, ]
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MEMORANDUM DECISION ON MOTIONS PREVIOUSLY
SET FOR HEARING ON JUNE 23, 2011

Before the Court are several matters filed by Debtors Saleh
Lajkem and Rosalba C. Ramirez (“Plaintiffs”) originally set for
hearing on June 23, 2011. The June 23, 2011 hearing was taken off
calendar to allow the Court to issue a written decision on the
following matters: (1) Plaintiffs’ motion for summary judgment
against ACS Educational Loan Services (“ACS”) (formerly known as
Chase Student Loan Services) and New Mexico Student Loans (set for
hearing per notice filed April 25, 2011); (2) Plaintiffs’ motion to

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dismiss Educational Credit Management Corporation (“ECMC”) from
these proceedings (set for hearing per notice filed May 5, 2011);
(3) Plaintiffs’ notice of violation of transfer of claim between
ECMC and JP Morgan Chase Bank (with American Student Assistance
(“ASA”) as guarantor) pursuant to Federal Rule of Bankruptcy
Procedure 3001(e} (2) (“Rule 3001(e) (2)”) (set for hearing per
notice filed June 13, 2011); (4) Plaintiffs’ motion to treat
paragraphs four and fourteen of ECMC’s answer to Plaintiffs’ first
amended complaint as affirmative (set for hearing per notice filed
May 27, 2011); (5) Plaintiffs’ motion to strike New Mexico
Educational Assistance Foundation’s (doing business as New Mexico
Student Loans) motion to dismiss pursuant to Bankruptcy Local Rule
9014-1 (set for hearing per notice filed June 10, 2011); and
(6) Plaintiffs’ motion to strike ECMC’s points and authorities and
accompanying declaration of Kerry Klisch pursuant to Civil Local
Rule 7-3 (set for hearing per notice filed June 13, 2011).

Plaintiffs are proceeding in propria persona. Defendant ECMC
is represented by Miriam Hiser, Esq. of the Law Offices of Miriam
Hiser. Defendant New Mexico Student Loans is represented by
Reginald J. Storment, Esq. The other defendants have not yet
appeared in this adversary proceeding.

This Memorandum Decision constitutes the Court’s findings of
fact and conclusions of law, pursuant to Rule 7052 of the Federal

Rules of Bankruptcy Procedure.

SET FOR HEARING ON JUNE 23, 2011

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I.
FACTS

Plaintiffs filed a chapter 7 bankruptcy petition on
June 18, 2010. Plaintiffs’ Schedule F, filed on July 2, 2010,
lists total student loan debt of $116,185.42. ACS is listed as
being owed $58,670.42 in student loan debt. JP Morgan Chase Bank
is listed as being owed $25,129.00 in student loan debt. New
Mexico Student Assistance is listed as being owed $2,351.00 in
student loan debt. Suntech Collegiate Funding is listed as being
owed $30,035.00 in student loan debt. No student loan creditor
filed a claim or complaint to determine the dischargeability of
Plaintiffs’ student loan debt while Plaintiffs’ bankruptcy case was
pending. Plaintiffs received a discharge on September 21, 2010 and
Plaintiffs’ bankruptcy case was closed on September 22, 2010.

On February 28, 2011, Plaintiffs sent a letter to the
undersigned Judge asking for declaratory judgment concerning the
discharge of Plaintiffs’ student loan debt in Plaintiffs’
bankruptcy case. The Court treated the letter as a complaint. The
letter alleged that JP Morgan Chase Bank (with ASA as guarantor)
and New Mexico Student Institute of Mining and Technology were
attempting to collect unpaid student loan principal balances plus
interest. Plaintiffs inquired as to why Plaintiffs’ student loan
debt was not discharged in Plaintiffs’ bankruptcy case. Plaintiffs
also alleged that, because Plaintiff Saleh Lajkem was unemployed
and recently diagnosed with a mental disability, the student loan
debt posed an extreme financial burden to Plaintiffs’ single-income
family. There is no indication in the public record that this

letter was served on the named defendants.

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On March 8, 2011, Plaintiffs filed a motion for summary
judgment against ACS and New Mexico Student Loans. This motion was
denied at a hearing held on April 11, 2011 because Plaintiffs’
letter complaint was not served properly.

On March 31, 2011, ECMC filed an answer to Plaintiffs’ letter
complaint. ECMC’s answer asks the Court to: (1) dismiss
Plaintiffs’ complaint with prejudice; (2) declare Plaintiffs’ debt
to ECMC to be non-dischargeable; (3) award ECMC fees and costs in
responding to Plaintiffs’ complaint; and (4) any other relief the
Court deems proper.

Also March 31, 2011, Plaintiffs filed a request for a clerk’s
entry of default against ACS and New Mexico Student Loans. This
request was denied at the hearing on April 11, 2011 because
Plaintiffs’ letter complaint was not served properly.

On April 25, 2011, Plaintiffs filed a first amended complaint
against ACS, New Mexico Student Loans, and ECMC requesting a
declaratory judgment or, in the alternative, a determination of
whether Plaintiffs’ student loan debt is non-dischargeable under
Bankruptcy Code section 523(a) (8). Plaintiffs allege that
Plaintiffs’ student loan debt was discharged in Plaintiffs’
chapter 7 bankruptcy case and that defendants were engaged in
deceptive collection tactics.

Also on April 25, 2011, Plaintiffs re-noticed for hearing
Plaintiffs’ motion for summary judgment against ACS and New Mexico
Student Loans on the basis that Plaintiffs’ debts to these two
entities were discharged in Plaintiffs’ chapter 7 bankruptcy case.

On May 5, 2011, Plaintiffs moved to dismiss ECMC from the

proceedings on the basis that the National Student Loan Data System

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(“NSLDS”) listed ASA as the “guarantee agency” for Plaintiffs’
student loan debt, and not ECMC.

On May 18, 2011, ECMC filed an answer to Plaintiffs’ first
amended complaint (“ECMC Answer”), which alleged that ECMC is the
current holder of a student loan promissory note executed by
Plaintiff Saleh Lajkem of which the outstanding principal and
interest balance is approximately $64,000.00.

On May 27, 2011, Plaintiffs moved to treat ECMC’s answers to
Plaintiffs’ first amended complaint in paragraphs four and fourteen
as affirmative. Paragraph four of ECMC’s answer admits the
allegations contained in paragraphs eight, nine, and eleven of
Plaintiffs’ first amended complaint. Paragraph fourteen is ECMC’s
denial of the allegations in paragraphs fifty-seven to sixty-three
of Plaintiffs’ first amended complaint.

Also on May 27, 2011, Plaintiffs filed a notice of violation
of transfer of claim by ECMC and JP Morgan Chase Bank (with ASA as
guarantor) pursuant to Rule 3001(e) (2). Plaintiffs allege that,
according to Rule 3001(e) (2), ECMC should have filed a proof of
claim with the Clerk’s Office. The Clerk would then substitute the
transferee for the transferor in the claims register unless a party
in interest objected.

On June 2, 2011, New Mexico Student Loans moved to dismiss
Plaintiffs’ first amended complaint as to New Mexico Student Loans
on the ground that the student loan debt in which New Mexico
Student Loans is alleged to have an interest is actually owed to
New Mexico Institute of Mining and Technology (serviced by
University Accounting Services). No declarations or other evidence

were filed in support of New Mexico Student Loans’ motion.

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On June 7, 2011, ECMC filed a memorandum of points and
authorities (in opposition to Plaintiffs’ motion to dismiss and
Plaintiffs’ motion for summary judgment) and an accompanying
declaration by Kerry Klisch. ECMC asserts that ECMC is the current
holder of one of the student loan promissory notes at issue in this
litigation, that ECMC filed a timely answer to Plaintiffs’ first
amended complaint, and that ECMC’s counsel provided Plaintiffs with
courtesy copies of the assignment documents. ECMC also moved for
summary judgment on the grounds that student loan debt creditors do
not need to file proofs of claim, since Bankruptcy Code section
523(a) (8) is self-executing, and Plaintiffs never established the
dischargeability of Plaintiffs’ student loan debt.

According to the declaration by Kerry Klisch: (1) the debt in
which ECMC claims an interest was originally held by BONY Mellon
ELT CFS LN TRUSTS/CHASE and originally guaranteed by ASA; (2) when
Plaintiffs filed for bankruptcy, the original lender transferred
all right, title, and interest in the note to ASA, which in turn
transferred the note to ECMC; (3) JP Morgan Chase Bank does not
hold any title, right, or interest to the note; and (4) ECMC is the
only party which can represent ECMC’s interests adequately. ECMC
attached a copy of the assignment of claim from ASA to ECMC to
ECMC’s motion.

Also on June 7, 2011, Plaintiffs filed a request for clerk’s
entry of default against ACS, JP Morgan Chase Bank, and New Mexico
Institute of Mining and Technology. All three requests were denied
by the Clerk’s Office on June 8, 2011 because Plaintiffs did not
file a Form B260, and because Plaintiffs did not serve the

complaint to the name of an individual identified by title as

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required by Federal Rule of Bankruptcy Procedure 7004(b) (3) fora
corporate or partnership defendant.

On June 9, 2011, Plaintiffs filed a motion to strike New
Mexico Student Loans’ motion to dismiss on the grounds that New
Mexico Student Loans violated Civil Local Rule 9014-1 because New
Mexico Student Loans’ motion was not accompanied by any
declarations or a memorandum of law supporting New Mexico Student
Loans’ position and because New Mexico Student Loans “does not
declare or stipulate its position.” Plaintiffs also filed a motion
to strike ECMC’s points and authorities in opposition to
Plaintiffs’ motion to dismiss ECMC as well as the accompanying

declaration of Kerry Klisch pursuant to Civil Local Rule 7-3.

Il.

ANALYSIS

A. Plaintiffs’ Motion for Summary Judgment

Plaintiffs move for summary judgment against ACS and New
Mexico Student Loans on the basis that Plaintiffs’ debts to these
two entities were discharged in Plaintiffs’ chapter 7 bankruptcy
case. ECMC opposes the motion. As discussed in Section II.B.,
below, ECMC is the real party in interest.

Summary judgment is appropriate where the evidence
demonstrates that there are no genuine issues of material fact for
trial and the moving party is entitled to judgment as a matter of

law. Barboza v. New Form, Inc., 545 F.3d 702, 707 (9th Cir. 2008).

Here, Plaintiffs are not entitled to judgment as a matter of law.
The Supreme Court has stated that Bankruptcy Code section

523(a) (8) is “self-executing” and that “[u]nless the debtor

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affirmatively secures a hardship determination, the discharge order

will not include a student loan debt.” Tennessee Student

Assistance Corp. v. Hood, 541 U.S. 440 (2004). In other words,

creditors to whom Plaintiffs owe student loan debt are not required
to file a proof of claim or to litigate the dischargeability of any
such debt during the bankruptcy case. Any assignees of Plaintiffs’
student loan debt would also be exempted from filing claims,
whether the assignment took place during or after the close of
Plaintiffs’ bankruptcy case.

Thus, contrary to Plaintiffs’ assertions, Plaintiffs’ student
loan debt remains due and nondischargeable despite the fact that
none of Plaintiffs’ student loan creditors filed a proof of claim
in this bankruptcy case or a complaint to determine
dischargability.

B. Plaintiffs’ Motion to Dismiss ECMC from these Proceedings

Plaintiffs move to dismiss ECMC as a party from these
proceedings. ECMC opposes Plaintiffs’ motion to dismiss. As
discussed in more detail in Section II.F., below, Plaintiffs’
motion to strike ECMC’s opposition and accompanying declaration is
denied.

Plaintiffs assert that, according to the NSLDS, the current
guarantee agency for Plaintiffs’ student loan debt is ASA -- not
ECMC. However, ECMC has submitted a declaration explaining how the
note to which ASA once held right, title, and interest was
transferred in right, title, and interest to ECMC on April 13,
2011. ECMC also submitted a copy of the assignment of claim letter

to the Court. Based on this uncontroverted evidence, the Court

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finds that ECMC is the current party in interest regarding the note
for Plaintiffs’ student loan debt.

Federal Rule of Civil Procedure 19(a), as incorporated by
Federal Rule of Bankruptcy Procedure 7019, provides in relevant
part:

(a) (1) A person ... must be joined as a party if:

(B) that person claims an interest relating to the
subject of the action and is so situated that
disposing of the action in the person’s absence
may:

(i) as a practical matter impair or
impede the person’s ability to
protect the interest.
ECMC has submitted evidence that ECMC is the assignee of some of
Plaintiffs’ student loan debt. Because the other parties have no
financial incentive to represent ECMC adequately in this
proceeding, ECMC must be a party to Plaintiffs’ dischargeability
adversary proceeding. In other words, because this proceeding
involves property in which ECMC has an interest, ECMC must be a
party in order to represent ECMC’s financial interest adequately.
Cc. Plaintiffs’ Notice of Violation of Transfer of Claim
Plaintiffs assert that the transfer of claim from ASA to ECMC
was improper under Rule 3001(e) (2). However, Rule 3001 (e) (2)
governs the transfer of claims other than for security after a
proof of claim has been filed. Because Bankruptcy Code section
523(a) (8) is self-executing, ASA was never required to file a proof

of claim. Rule 3001(e)(2) cannot, therefore, govern the transfer

of claim from ASA to ECMC.

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D. Plaintiffs’ Motion re ECMC’s Answer

Plaintiffs move to treat ECMC’s answer to Plaintiffs’ first
amended complaint at paragraphs four and fourteen as affirmative.
The Court is unclear as to what relief Plaintiffs seek. ECMC’s
answer at paragraph four states, “ECMC admits the allegations at
paragraphs eight, nine and eleven.” ECMC Answer, 1:27. As ECMC’s
answer at paragraph four already admits allegations made by
Plaintiffs in Plaintiffs’ first amended complaint, there is no need
for Plaintiffs to move to treat ECMC’s answer as affirmative.

ECMC’s answer at paragraph fourteen states, “ECMC denies the
allegations at paragraphs fifty-seven to sixty-three.” ECMC
Answer, 2:19. Paragraphs fifty-seven to sixty-three of Plaintiffs’
first amended complaint refer to Plaintiffs’ allegations relating
to Plaintiffs’ request for declaratory relief against defendants.
These allegations assert that Plaintiffs’ student loan debt was
discharged in Plaintiffs’ bankruptcy case and that the defendants
are not entitled to collect on that debt. The proper way to
dispute ECMC’s denial of Plaintiffs’ allegations is through
settlement or adjudication, not a motion to treat ECMC’s denial as
affirmative. Plaintiffs’ motion to treat ECMC’s answer at
paragraphs four and fourteen as affirmative is therefore denied.

E. Plaintiffs’ Motion to Strike re New Mexico Student Loans

Plaintiffs move to strike New Mexico Student Loans’ motion to
dismiss pursuant to Bankruptcy Local Rule 9014-1. Plaintiffs
contend that New Mexico Student Loans did not submit any
declarations in support of New Mexico Student Loans’ motion and

this Court should therefore strike New Mexico Student Loans’ motion

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to dismiss. Plaintiffs’ motion to strike is denied for two
reasons.

First, a motion to strike is granted only in limited
circumstances. Federal Rule of Civil Procedure 12(f) provides that
a court may “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f). The purpose of a Rule 12(f) motion to
strike is to avoid the expenditure of time and money that arises
from litigating spurious issues by dispensing of those issues

before trial. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527

(9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994).

Motions to strike are generally disfavored. Rosales v. Citibank,

133 F.Supp.2d 1177, 1180 (N.D. Cal. 2001). In most cases, a motion
to strike should not be granted unless “the matter to be stricken
clearly could have no possible bearing on the subject of the

litigation.” Platte Anchor Bolt, Inc. v. IIHT, Inc., 352 F.Supp.2d

1048, 1057 (N.D. Cal. 2004).

Here, Plaintiffs move to strike New Mexico Student Loans’
motion to dismiss merely because no declarations were filed with
the motion. The grounds Plaintiffs assert in Plaintiffs’ motion to
strike may be raised as opposition to New Mexico Student Loans’
motion to dismiss and are not a basis upon which to strike that
pleading.

Second, Bankruptcy Local Rule 7007-1, not Bankruptcy Local
Rule 9014-1, governs the filing of motions in an adversary
proceedings and Bankruptcy Local Rule 7007-1 does not require that
declarations be filed in support of a motion. Accordingly, the

Court denies Plaintiffs’ motion to strike.

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F. Plaintiffs’ Motion to Strike re ECMC

Plaintiffs move to strike ECMC’s memorandum of points and
authorities in opposition to Plaintiffs’ motion to dismiss and
motion for summary judgment, as well as the accompanying
declaration of Kerry Klisch, pursuant to Civil Local Rule 7-3 which
provides that any opposition must be filed at least 21 days before
the hearing. While Bankruptcy Local Rule 1001-2 incorporates
certain Bankruptcy Local Rules, Civil Local Rule 7-3 is not one of
those rules.

Instead, Bankruptcy Local Rule 7007-1 governs the time to file
papers related to a motion in an adversary proceeding. Rule 7007-1
provides in relevant part that “[a]ny opposition to a motion shall
be filed and served at least 14 days before the hearing date.”
B.L.R. 7007-1(b). Here, ECMC filed ECMC’s memorandum, declaration,
and accompanying items on June 7, 2011, more than 14 days before
the scheduled hearing for this matter on June 23, 2011, and so
ECMC’s opposition papers were filed timely. Accordingly, the Court
denies Plaintiffs’ motion to strike ECMC’s memorandum of points and
authorities in opposition to Plaintiffs’ motion to dismiss and
motion for summary judgment pursuant to Civil Local Rule 7-3.

G. Discharge of Plaintiffs’ Student Loan Debts For Hardship

Reasons

While Plaintiffs make numerous allegations in Plaintiffs’
first amended complaint, the first amended complaint does not
specifically seek to have Plaintiffs’ student loan debts discharged
for hardship reasons. “Section 523(a)(8) is the ‘hardship’
provision, which allows the court to discharge an otherwise

nondischargeable student loan if excepting the debt from discharge

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will impose an undue hardship on the debtor or the debtor’s
dependants.” 4 Collier on Bankruptcy, 9523.14[2] at 523-103 to
523-104 (16th ed. 2011). In order to except student loan debt from
discharge, the bankruptcy court must determine that the payments of
the debt will cause an undue hardship on the debtor and the
debtor’s dependants, thus defeating the “fresh start” concept of
the bankruptcy laws. There may well be circumstances that justify
the failure to repay a student loan, such as illness or incapacity.
If the court finds that such circumstances exist, the court may
order the debt be discharged. Id. at 523-104. A court may
discharge all or a portion of a student loan that meets the

requirements of section 523(a) (8). In _re Saxman, 325 F.3d 1168,

1174 (9th Cir. 2003).

“There has been a wide range of judicial reaction to the undue
hardship claims of debtors.” 4 Collier on Bankruptcy at 9523.14[2]
at 523-104. The commonly used test for evaluating whether a
student loan is dischargeable under section 523(a) (8) provides that
a student loan debt is dischargeable if three conditions are met:

(1) The debtor cannot maintain -- based on current

income and expenses -- a “minimal” standard of
living if forced to repay the loans;

(2) There are indications that the state of affairs is

likely to persist for a significant portion of the
repayment period; and

(3) The debtor has made good faith efforts to repay the

loans.

Brunner v. New York State Higher Education Servs. Corp., 831 F.2d

395 (2d Cir. 1987); In _re Pena, 155 F.3d 1108 (9th Cir. 1998).
In determining whether the debtor can maintain a “minimal”

standard of living if forced to repay the loans, the court should

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consider the debtor’s income, living expenses, and standard of
living. The method for calculating a debtor’s average monthly
expenses is a matter properly left to the discretion of the
bankruptcy court. Pena, 155 F.3d at 1112. If subtracting the
debtor’s monthly expenses from the debtor’s monthly income leaves a
deficit, then the debtor cannot maintain a minimal standard of
living and pay off the student loans. Pena, 155 F.3d at 1113.

See also In re Mason, 464 F.3d 878, 882 (9th Cir. 2006); In re

Craig, 579 F.3d 1040, 1045 (9th Cir. 2009). Other courts have also
focused on whether the debtor has maximized the debtor’s income and

minimized the debtor’s expenses. Educational Credit Management

Corp. v. DeGroot, 339 B.R. 201, 207 (D. Or. 2006).

The second prong of the test, sometimes referred to as the
“additional circumstances test,” requires the debtor to show that
additional circumstances exist indicating that this state of
affairs is likely to persist for a significant portion of the
repayment period of the student loans. Brunner, 831 F.2d at 396.
Stated in the affirmative, this part of the Brunner test considers
whether there is a likelihood that the debtor’s financial situation
will improve sufficiently to permit the debtor to repay the loans.

NYS v. Educational Credit Management Corp., 308 B.R. 436, 442

(9th Cir. BAP 2004). The court may consider any number of
circumstances that relate to future ability to pay. Depending on
the case, the debtor’s age, training, physical and mental health,
education, assets, ability to obtain a higher paying job or reduce
expenses, and other factors not listed here may be relevant. The

test is, by its nature, case-by-case. NYS, 308 B.R. at 444.

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The common thread of prior rulings discussing this prong of
the Brunner test is that those facts generally considered

“additional circumstances” are beyond the debtor’s control.

DeGroot, 339 B.R. at 210. Where the debtor has reasonable control

over the circumstances causing hardship, courts are much more
reluctant to go against Congress’ general policy of not discharging

student loan debt. See In re Birrane, 287 B.R. 490, 497-98, 500

(9th Cir. BAP 2002) (finding second prong not met as debtor had “no
problems that were insurmountable or that impaired her ability to
work” and noting, “[t]he debtor may not willfully or negligently
cause his own default, but rather his condition must result from
factors beyond his reasonable control”) (internal quotations and

citation omitted); In re Chapelle, 328 B.R. 565, 571-573 (Bankr.

C.D. Cal. 2005) (“[T]he evidence does not show that [the debtor’s]
difficulties are likely to persist, or that she is faced by
‘additional circumstances’ that she cannot overcome or are beyond

her reasonable control.”); In re Oyler, 397 F.3d 382, 386 (6th Cir.

2005) (“[Mlost importantly, [the circumstances] must be beyond the
debtor’s control, not borne of free choice.”).

The final prong of the Brunner test requires that the debtor
exhibit good faith in the debtor’s efforts to repay the student
loans. See Pena, 155 F.3d at 1114. Courts consider a number of
factors in deciding whether the debtor has exercised good faith,
including: (1) whether the debtor has worked to maximize income and
minimize expenses; (2) whether the debtor has made an effort to
negotiate a repayment plan; (3) whether the debtor has made any
payments on the loan; and (4) the timing of the debtor’s attempt to

have his or her loan discharged. Birrane, 287 B.R. at 499;

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Brunner, 831 F.2d at 397; Chapelle, 328 B.R. at 573. Courts will
also consider “[A] debtor’s effort - or lack thereof - to negotiate
a repayment plan,” although a history of making or not making
payments is, by itself, not dispositive. Birrane, 287 B.R. at
499-500. The debtor’s obligation to act in good faith only ends
when the loan has been paid in full or discharged. Thus, the
debtor must continue making good faith efforts to repay even after

a bankruptcy petition has been filed. Birrane, 287 B.R. at 500.

Til.
CONCLUSION

For the forgoing reasons, Plaintiffs’: (1) motion for summary
judgment against ACS and New Mexico Student Loans; (2) motion to
dismiss ECMC from these proceedings; (3) notice of violation of
transfer of claim between ECMC and JP Morgan Chase Bank (with ASA
as guarantor) under Rule 3001(e) (2); (4) motion to treat paragraphs
four and fourteen of ECMC’s answer to Plaintiffs’ first amended
complaint as affirmative; (5) motion to strike New Mexico Student
Loans’ motion to dismiss; and (6) motion to strike ECMC’s
opposition and accompanying declaration of Kerry Klisch pursuant to
Civil Local Rule 7-3 are all denied.

This Court’s ruling does not preclude Plaintiffs from
litigating the dischargeability of Plaintiffs’ student loan debt as
an undue hardship under Bankruptcy Code section 523(a) (8) in the
future. Because Plaintiffs’ first amended complaint does not
specifically seek to have Plaintiffs’ student loan debt discharged
for hardship reasons, Plaintiffs will need to further amend

Plaintiffs’ complaint, if Plaintiffs choose to pursue this relief.

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In order to amend the first amended complaint, Federal Rule of
Bankruptcy Procedure 7015 requires that Plaintiffs must either
obtain the stipulation of all answering and appearing defendants or
file, serve and set for hearing -- on notice to all defendants who
‘have answered or otherwise appeared in this adversary proceeding at
the time that the motion is filed and served -- a motion seeking
the Court’s permission to amend Plaintiffs’ complaint further. See

3 Moore’s Federal Practice, §15.14[1] (3d ed. 2011).

IT IS SO ORDERED.

Dated: July uy 20H tithu ud MW) eisedroeth~

ARTHUR S. WEISSBRODT
UNITED STATES BANKRUPTCY JUDGE

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Court Service List

Saleh Lajkem
316 Mid-Valley Center #153
Carmel, CA 93923

Rosalba C. Ramirez
316 Mid-Valley Center #153
Carmel, CA 93923

JP Morgan Chase
ACS P.O. Box 22724
Long Beach, CA 90801-5724

New Mexico Institute of Mining and Technology
(University Accounting Services)

P.O. Box 5291

Carol Stream, IL 60197-5291

Educational Credit Management Corporation
1 Imation Place Building 2
Oakdale, MN 55128

Miriam E. Hiser

Law Offices of Miriam E. Hiser
550 Montgomery St. #650

San Francisco, CA 94111

ACS Education Loan Services, LLC
501 Bleecker Street
Utica, NY 13502

New Mexico Student Loans
UAS LLC (Servicer)

7400 Tiburon LE
Albuquerque, NM 87109-5910

Reginald J. Storment
7400 Tiburon NE/POB 93970
Albuquerque, NM 87199-3970

Office of the U.S. Trustee / SJ
U.S. Federal Bldg.

280 S lst St. #268

San Jose, CA 95113-3004

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