Berchtold et al v. Educational Credit Management Corporation

MEMORANDUM OF DECISION - 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF IDAHO
______________________________________________________
In Re:
Bankruptcy Case
ROBERT BERCHTOLD and 	No. 03-42102
SANDRA BERCHTOLD,
husband and wife,
Debtors.
_________________________________________________________
ROBERT BERCHTOLD,
Plaintiff, 	Adv. Proceeding No. 04-6183
vs.
EDUCATIONAL CREDIT
MANAGEMENT
CORPORATION,
Defendant.
_____________________________________________________
MEMORANDUM OF DECISION
______________________________________________________
Appearances:
Jay A. Kohler, Idaho Falls, Idaho, Attorney for Plaintiff.
Scott Tschirgi, JONES, GLEDHILL, HESS, FUHRMAN & EIDEN,
P.A., Boise, Idaho, Attorney for Defendant.
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1 In making its findings of fact, the Court has relied in part upon its opportunity
to observe the witnesses testify and to assess their demeanor and credibility. The Court
has assigned appropriate weight to that testimony in this Decision.
MEMORANDUM OF DECISION - 2
Plaintiff Robert Berchtold and his wife Sandra Berchtold are
Chapter 7 debtors (hereafter jointly referred to as “Debtors”). In this adversary
proceeding, Plaintiff seeks to discharge approximately $120,000 in student loan
debt owed to Defendant Educational Credit Management Corporation. The central
issue in the action is whether repaying this debt would represent an undue
hardship for Debtors. 11 U.S.C. § 523(a)(8).
The Court conducted a trial on June 2, 2005. After considering the
evidence and testimony presented; the arguments of the parties, including post-
trial submissions; and the relevant legal authorities, this Memorandum of Decision
constitutes the Court’s findings of fact, conclusions of law and disposition of the
issues. Fed. R. Bankr. P. 7052.
FACTS1
A. Mr. Berchtold’s background, employment history and health.
Robert Berchtold is fifty-two years old and lives in Idaho Falls,
Idaho, with his wife Sandra Berchtold and their eleven year old daughter.
In 1995, at age forty-two, Mr. Berchtold retired from military
service after having served almost twenty years. Ex. 1. Mr. Berchtold described
his work in the military as being primarily combat related, involving the use of
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MEMORANDUM OF DECISION - 3
weapons and explosives. He feels he did not acquire any marketable job skills in
the service, although he was able to obtain a college degree in general studies.
At the time of his discharge, Mr. Berchtold was stationed in
Kentucky. He initially went to work in a factory but, six months later, decided to
purse a career as a chiropractor. Towards that end, he enrolled in a community
college to take prerequisite courses. Then, in the summer of 1998, Mr. Berchtold
enrolled at Palmer College of Chiropractic in Iowa. Unfortunately, after three
unsuccessful attempts to pass a required neuroanatomy course, the college
declined to allow Mr. Berchtold to continue his studies beyond the winter term of
2002. Mr. Berchtold financed his chiropractic studies with student loans, with the
balance now amounting to $120,171. Ex. A.
After leaving Palmer College, Mr. Berchtold worked as a pizza
delivery driver and eventually started working in the home repair field. Despite
some limited success, in the summer of 2003, Debtors decided to move from Iowa
to Idaho Falls to be closer to their family. In Idaho, Mr. Berchtold applied for and
worked at a variety of jobs. Exs. 10, 12. Between September 2003 and July 2004,
he worked a few days on a production line, but experienced vertigo and nausea
from the motion of the line; he temporarily replaced an ill driver at a transportation
company, but did not continue after the regular driver returned to work; and he
worked as a satellite dish installer until, after a few months, he felt that the work
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MEMORANDUM OF DECISION - 4
was too demanding given his physical ailments. After leaving his job installing
satellite dishes, Mr. Berchtold returned to the home repair field, ultimately electing
to start his own sheet rock installation business despite his health problems.
Regarding those health problems, in 2002, Mr. Berchtold submitted
a disability claim to the Department of Veterans Affairs. The VA concluded that
Mr. Berchtold had an aggregate 60% disability, Ex. 6, attributable to a
degenerative disc disease of his spine (10%); recurrent left ankle problems (10%);
tinnitus (a ringing in the ears) (10%); diabetes (20%); and peripheral neuropathy
for each extremity (10%). In addition to these problems, Mr. Berchtold complains
of asthma, bad memory and extreme physical fatigue if he performs manual labor
for more than six hours per day, four days per week. Mr. Berchtold restricts his
sheet rock installation work to accommodate his physical limitations.
B. Mrs. Berchtold’s background, employment history and health.
Mrs. Berchtold is forty-eight years old. She has been a registered
nurse since 1987, and currently works as a supervising psychiatric nurse at the
Eastern Idaho Regional Medical Center. While Mrs. Berchtold testified she
suffers from a few medical difficulties, she is being treated for those problems and
they do not appear to affect her ability to work as a nurse.
C. Debtors’ income.
Mrs. Berchtold’s net monthly income is $3,076. She testified that
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2 Exhibit 16 contains Debtors’ bank statements and Mrs. Berchtold’s earning
statements for eleven two-week periods. They show her net earnings were: $1,712.76 on
1-1-05; $1,280.80 on 1-15-05; $1,278.13 on 2-3-05; $1,356.56 on 2-17-05; $1,304.87 on
3-3-05; $1,417.50 on 3-12-05; $1,457.87 on 3-26-05; $1,441.61 on 4-9-05; $1,708.47 on
4-23-05; $1,341.48 on 5-12-05; and $1,315.58 on 5-26-05. (The dates are not precisely
two weeks apart, some dates coming from the earnings statements, and others from bank
statements.) These figures total $15,615.63, and average $1,419.60 per two-week period.
Multiplying the $1,419.60 average by the twenty-six two-week periods in a year renders
net annual income of $36,909.60, and yields an average monthly net income of $3,076
($36,909.60/12 = $3,075.80). See United Student Aid Funds, Inc. v. Pena (In re Pena),
155 F.3d 1108, 1112–13 (9th Cir. 1998) (approving of averaging figures over a reasonable
period of time). Plaintiff’s Exhibit J, Debtors’ bankruptcy Schedule I, listed Mrs.
Berchtold’s net monthly income as $2,207, but the Court does not find this schedule to be
as reliable or persuasive as the earnings and bank statements.
3 $188.82 of this amount is paid to Mr. Berchtold to correct a prior underpayment
and will terminate in about eight years. However, the Court includes this amount in its
analysis because Mr. Berchtold currently receives it, he will continue to receive it for a
significant period of time, and its loss will likely be offset by cost-of-living increases in
Mrs. Berchtold’s income.
MEMORANDUM OF DECISION - 5
she anticipates there will be no increases in her income other than occasional,
small cost-of-living adjustments.2
Mr. Berchtold receives cash military benefits and earns a modest
amount installing sheet rock. He receives three separate monthly payments from
the government for his military benefits, which total $1,322.72.3
Mr. Berchtold testified that he generates net profits from his business
of just over $500 per month. In his pre-trial brief, Docket No. 23, Mr. Berchtold
again claims he earns net income of $556 per month. These representations are
somewhat inconsistent with Debtors’ 2004 tax returns, Ex. K, which disclose that
Mr. Berchtold earned only $3,000 in gross revenues from his sheet rock business
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4 Debtors received a tax refund of $1,723 for 2003, and a refund of $2,230 for
2004. Exs. B, K. While a tax refund is not strictly “income,” and there was no evidence
presented regarding what Debtors could expect from future tax refunds, their
discretionary income may be significantly higher due to such future refunds.
MEMORANDUM OF DECISION - 6
for the approximately eight months that he operated that business in 2004. Mr.
Berchtold also testified that his business is seasonal and that he will be busier
during the summer months. Considering this disconsonant evidence, the Court is
persuaded that, more probably than not, Mr. Berchtold’s net monthly income from
his business is $556. Therefore, the Court finds that Mr. Berchtold’s total net
monthly income is $1,878.72, and Debtors’ combined net monthly income is
$4,954.72.4
D. Debtors’ expenses.
Debtors report monthly expenses of $4,448.04 via a revised
Schedule J that they updated to reflect changes in their expenses occurring since
they filed for bankruptcy. Defendant presented no persuasive evidence to
contradict these figures, and so the Court accepts that Debtors’ actual monthly
expenses are $4,448. But Defendant challenges the propriety of several expense
items, and the Court has independent concerns regarding others. See Twitchell v.
Educ. Credit Mgmt. Corp. (In re Twitchell), 04.2 I.B.C.R. 66, 68 (Bankr. D. Idaho
2004) (examining a debtor’s expenses in a § 523(a)(8) action based upon the
Court’s independent skepticism). The Court will address these issues below.
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MEMORANDUM OF DECISION - 7
E. Mr. Berchtold’s efforts to pay the student loan debt.
Mr. Berchtold testified that immediately following his departure
from Palmer College, he made a few payments towards his outstanding student
loans. Defendant’s records confirm that Mr. Berchtold made two payments of
approximately $500 in January and February of 2003, and one other payment of
approximately $70 in April 2004. Ex. E. Mrs. Berchtold testified that she and her
husband considered different repayment plans, but did not pursue them because, in
their opinion, they could not even afford the repayment plan requiring the lowest
monthly payment.
Ultimately, Debtors filed for bankruptcy relief under Chapter 7 of
the Bankruptcy Code on September 30, 2003, and they commenced this adversary
proceeding on August 9, 2004.
DISCUSSION
The Bankruptcy Code provides that:
A discharge under section 727 . . . of this title does not
discharge an individual debtor from any debt . . . for an
educational benefit overpayment or loan made,
insured, or guaranteed by a governmental unit, or
made under any program funded in whole or in part by
a governmental unit or nonprofit 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[.]
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5 Although Mr. Berchtold is the only named plaintiff, the Court must examine
their combined income and expenses. See Fulbright v. United States Dep’t of Educ. (In
re Fulbright), 319 B.R. 650, 657–58 (Bankr. D. Mont. 2005) (considering a husband and
wife’s ability to maintain a minimal standard of living when only the husband was a
plaintiff); cf. England v. United States (In re England), 264 B.R. 38, 49–50 (Bankr. D.
Idaho 2001) (considering a spouse’s potential earning capability when the spouse was not
obligated on the student loan debt).
MEMORANDUM OF DECISION - 8
11 U.S.C. § 523(a)(8). Mr. Berchtold bears the burden of proving that repayment
of his student loan represents an undue hardship. Twitchell, 04.2 I.B.C.R. at 67.
Establishing undue hardship requires proof that: (1) he can not maintain a minimal
standard of living for himself and any dependents, based on current income and
expenses, if forced to repay the loans; (2) 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; and (3) he has made good faith efforts to
repay the loans. Id. (citing United Student Aid Funds, Inc. v. Pena (In re Pena),
155 F.3d 1108, 1111–12 (9 th Cir. 1998)).
A. Minimal standard of living.
Debtors’ ability to maintain a minimal standard of living requires the
Court to compare their reasonably necessary expenses with their income and
determine whether they have funds available to make payments on the student
loan debt.5 In conducting this analysis, the Court must exclude claimed expenses
if they are unnecessary to maintaining a minimal standard of living. See, e.g., id.
at 67–68; Delbridge v. ASFA Data Corp. (In re Delbridge), 03.2 I.B.C.R. 112, 113
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MEMORANDUM OF DECISION - 9
(Bankr. D. Idaho 2003). Several of Debtors’ claimed expenses exceed what is
necessary for a minimal standard of living.
First, Debtors claim a monthly tithing expense of $480. As the
Court has previously explained, a voluntary contribution to a charitable
organization, while laudable, is clearly not a necessary expense in this context.
Delbridge, 03.2 I.B.C.R. at 113; Ritchie v. Northwest Educ. Loan Ass’n (In re
Ritchie), 254 B.R. 913, 921 (Bankr. D. Idaho 2000).
Second, Debtors’ overall expenditures for recreation and
entertainment are excessive. Debtors budget $90 per month for “recreation,”
$61.91 for cable television, and $138 for their daughter’s “extracurricular”
activities, which currently include martial arts lessons. In another student loan
discharge case, the Court limited a family of four to $50 per month for recreational
expenses. England v. United States (In re England), 264 B.R. 38, 47 (Bankr. D.
Idaho 2001); cf. Educ. Credit Mgmt. Corp v. Mason (In re Mason), 303 B.R. 459,
465–66 n.5 (Bankr. D. Idaho 2004) (criticizing a gym membership expense for a
young, healthy debtor even though he budgeted no entertainment expenses), aff’d,
315 B.R. 554 (B.A.P. 9 th Cir. 2004). While Debtors may reasonably budget some
amount for recreation and entertainment, $290 is certainly too much for a family
of three. Indeed, Mr. Berchtold admitted that he did not consider any television
expense to be a true necessity. Instead, the Court finds, perhaps generously, that
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MEMORANDUM OF DECISION - 10
$200 per month is more than a sufficient sum to be allocated by Debtors to
television and other recreational pursuits. Debtors’ expenses, therefore, will be
further reduced by $90.
A third problematic expense is the $100 per month Debtors spend
for Christmas, birthday, and other gifts. Mr. Berchtold testified that he spends this
amount because he has several siblings for whom he purchases presents. Given
his financial predicament, it is hardly frugal to engage in such a practice. Indeed,
Debtors’ monthly budget includes a separate $50 per month line item for
miscellaneous expenses. Examining their budget as a whole, the monthly expense
for gifts is unnecessary and will be subtracted from Debtors’ allowed expenses.
Next, Debtors claim $125 per month for medical and dental
expenses. However, Mrs. Berchtold explained that as of 2005, she began
participating in a “flex plan” sponsored by her employer. Mrs. Berchtold uses this
flex plan to set aside $162 per month from her wages and spends the accumulated
funds to pay for her family’s out-of-pocket medical expenses not covered by her
health insurance. At trial, Mrs. Berchtold testified that her flex plan contributions
should cover all of her family’s out-of-pocket medical expenses. Because the
$162 deduction is taken from Mrs. Berchtold’s gross wages (presumably on a pre-
tax basis) and all of Debtors’ medical expenses will be covered by insurance and
the flex plan, the budget item for $125 is therefore duplicative. The Court will
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6 Mrs. Berchtold testified that she may reduce her monthly flex plan contribution
by as much as one half for 2006. Nevertheless, the Court must rely on Debtors’ current
monthly income and expenses.
MEMORANDUM OF DECISION - 11
reduce their monthly expenses by this amount as well. 6
Finally, two other expenses deserve mention. Post-bankruptcy,
Debtors purchased a third vehicle, a Toyota pickup, for Mr. Berchtold to use while
he was still installing satellite dishes. He now uses the truck in his business.
Debtors have nine monthly payments of $200 remaining toward the purchase price
of the pickup. While this monthly payment is an actual expense, and the Court
will not exclude it, it is important to note that it will expire relatively soon.
Debtors also indicated they intend to purchase a home. Their
monthly rental payment of $900 and their renters’ insurance premium payment of
$26 will then be replaced with a combined mortgage and insurance payment of
$1,140. Mrs. Berchtold explained that their current residence was to be sold,
forcing them to relocate. Given their options, she felt that purchasing the home
would be a prudent long-term financial decision and would not cost them
significantly more per month. In the absence of any evidence that Debtors have
less expensive housing options, the Court accepts Mrs. Berchtold’s testimony on
this point and will not adjust their expenses for the anticipated house payments.
All told, Mr. Berchtold has failed to satisfy his burden of proving he
can not maintain a minimal standard of living if he is required to repay his student
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MEMORANDUM OF DECISION - 12
loans. Reducing their claimed expenses of $4,448.04 by the $795 identified
above, Debtors’ reasonably necessary expenses total $3,653.04. And comparing
Debtors’ net income of $4,954.72 to their expenses, Debtors have $1,301.68 in net
monthly income available to service the student loan debt.
Defendant’s Exhibit C shows four repayment plans available to Mr.
Berchtold, with monthly payments ranging from $532 for the “income contingent”
plan to $1,238 for the “standard” plan. Debtors have the ability to repay Mr.
Berchtold’s student loans under any of these repayment plans, including the
standard plan, which has a term of ten years and an interest rate of $4.375%.
Having failed to make the necessary showing under the first part of the undue
hardship test, judgment must be entered against Mr. Berchtold.
B. Additional circumstances.
Because a debtor’s failure to meet any single prong of the three-part
undue hardship test precludes a discharge of student loan debts, a discussion of the
remaining elements is not strictly necessary. Nonetheless, it is appropriate to
address the remaining prongs in this case. See Delbridge, 03.2 I.B.C.R. at 113–14
(finding debtor failed the first prong but addressing the second and third prongs).
Mr. Berchtold’s failure to meet his burden under the second and third parts of the
test further buttresses the conclusion that repayment will not be an undue hardship
for Debtors.
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MEMORANDUM OF DECISION - 13
Under the second prong of the undue hardship test, a debtor must
show that he or she “will be unable to repay for several years, because of
psychiatric problems, lack of useable job skills, severely limited education,
physical problems, or any other circumstance which will persistently interfere with
debtor’s ability to repay.” Educ. Credit Mgmt. Corp. v. Mason (In re Mason), 315
B.R. 554, 560 (B.A.P. 9 th Cir. 2004) (internal citations omitted). Mr. Berchtold
has not established that other “circumstances” justifying a discharge exist here.
While Debtors both testified they suffer from some medical
problems, Mrs. Berchtold is gainfully employed as a nurse and none of the
evidence indicated that her circumstances would change. Mr. Berchtold has
usable construction knowledge and skills, and is also able to perform physically
demanding work, albeit on a somewhat reduced schedule. He testified that he
expects to be able to continue this work for an additional five to ten years. Thus,
whatever his medical limitations are, he does not consider them to prevent him
from working in some capacity through the foreseeable future. Moreover, Mr.
Berchtold has a college education and many years of work experience, which
certainly have value in the workforce.
Debtors’ financial picture may also improve in the near future. In a
few months, Debtors will make their final payment on the Toyota, giving them an
additional $200 of discretionary monthly income. Further, if Mrs. Berchtold’s
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7 Mrs. Berchtold testified that her flex plan contributions for 2005 are based in
part on her requiring sinus surgery, an expense that hopefully will not reoccur. Reducing
Mrs. Berchtold’s bi-weekly flex plan contributions from $161 to $80.50 would save
Plaintiff $174 per month, without regard to any tax consequences. ($80.50 x 26 pay
periods per year = annual savings of $2,093, which average $174 per month.)
MEMORANDUM OF DECISION - 14
estimate is correct, she can reduce her flex plan contributions in half for 2006,
adding approximately $174 to Debtors’ monthly income.7
In short, Mr. Berchtold failed to offer any persuasive evidence that
Debtors are hindered by the type of additional circumstances necessary to satisfy
the second prong of the undue hardship test.
C. Good faith.
The good faith prong of the undue hardship test focuses on two
factors: a debtor’s efforts to obtain employment, maximize income and minimize
expenses; and the debtor’s efforts to negotiate a repayment plan. Mason, 315 B.R.
at 563. Mr. Berchtold’s employment history does not reflect an attempt to
maximize income.
Without corroborating evidence to support Mr. Berchtold’s claim
that he can not work more than six hours per day, four days per week, the Court is
not persuaded that Mr. Berchtold is physically limited in this way. If Mr.
Berchtold is capable of working more but is not, he is voluntarily under-employed
and he has not displayed good faith in dealing with his financial obligation to
Defendant. See Oyler v. Educ. Credit Mgmt. Corp. (In re Oyler), 397 F.3d 382,
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8 The minimum wage in Idaho is $5.15. Idaho Code § 44-1502. Assuming Mr.
Berchtold worked six hours per day, four days per week, he would average 103 hours per
month. Over eight months, he would gross $4,244, a forty-one percent increase over his
actual gross earnings for 2004.
MEMORANDUM OF DECISION - 15
385 (6 th Cir. 2005) (adopting the undue hardship test used in the Ninth Circuit, and
criticizing a debtor that chose low-paying employment when he had other
options). If his claim is accurate, his conduct still falls short.
Even taking as true Mr. Berchtold’s unsupported assertion that he is
physically unable to work at his job for more than six hours per day, four days per
week, Mr. Berchtold should have a substantial amount of time each week to search
for either more lucrative employment, or perhaps a second, less physically
demanding sort of job. But Mr. Berchtold appears content with his current
arrangement, which to the Court is surprising considering he earned gross revenue
of only $3,000 during eight months in 2004. Put another way, even given his part-
time schedule, Mr. Berchtold could have earned more working at a minimum
wage job.8
On this record, it appears almost any other job would be better for
Mr. Berchtold financially, and perhaps a less physically demanding job would
allow him to work more hours, thereby potentially increasing his income. And if
Mr. Berchtold changed jobs, perhaps he may not need the pickup. With only two
vehicles, Debtors’ automobile insurance and operating expenses would be
diminished, and selling the vehicle would immediately reduce their monthly debt
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MEMORANDUM OF DECISION - 16
service.
At bottom, Mr. Berchtold’s limited efforts at maximizing his income
do not reflect good faith for someone with his education and experience, which is
required to allow the Court, in good conscience, to relieve him of his student loan
debt. Cf. United Student Aid Funds, Inc. v. Nascimento (In re Nascimento), 241
B.R. 440, 445 (B.A.P. 9 th Cir. 1999) (noting that the proper inquiry under the first
prong of the undue hardship test focuses on whether it would be unconscionable to
require a debtor to take steps to earn more income).
CONCLUSION
Mr. Berchtold failed to prove that the repayment of his student loan
debt would represent an undue hardship for Debtors. They are capable of
repaying the loans and maintaining a minimal standard of living; their financial
situation is not burdened by additional circumstances that will prevent them from
being able to make payments on the loan for a significant portion of the repayment
period; and Mr. Berchtold has not demonstrated good faith by attempting to
maximize income. Mr. Berchtold’s debt to Defendant, therefore, is not subject to
discharge under 11 U.S.C. § 523(a)(8).
Counsel for Defendant shall prepare and submit and appropriate
form of judgment for entry by the Court. Counsel for Plaintiff shall approve the
form of the judgment.
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MEMORANDUM OF DECISION - 17
Dated: July 26, 2005
Honorable Jim D. Pappas
United States Bankruptcy Judge
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