The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING MOTIONS TO DISMISS [doc. nos. 4, 6, 14]
The three defendants, Pennsylvania Higher Education Assistance ("PHEAA"), Educational Credit Management Corporation ("ECM") and Key Bank, NA ("Key Bank")*fn1 have each filed motions to dismiss the above-captioned case. The motions have been fully briefed. Because the motions are premised on the same factual and legal arguments and plaintiff filed a consolidated response in opposition, all three motions will be disposed of in this Order.
Plaintiff, a California-licensed attorney, obtained student loans in order to attend law school between 1993 and 1997. His lender, Key Bank, disbursed student loans on August 4, 1993, December 22, 1993, August 19, 1994, September 20, 1995, and August 28, 1996.*fn2 After his graduation from law school in 1997, plaintiff made some payments on the loans and he received a deferment or forbearance in 2000. (Complaint ¶ 7.)
Plaintiff filed a Chapter 13 bankruptcy petition in this district on December 6, 2001. Id. at ¶ 8. Plaintiff asserts that notice of the Plan was given to all lenders and the creditors offered no objections to the Plan. The bankruptcy court confirmed the five-year plan on January 25, 2002, which called for plaintiff to pay $29,197.11 on the $104,275.35 student loan debt. On March 9, 2007, after plaintiff made all payments required under the Plan, the bankruptcy court entered a discharge order. As a result, plaintiff argues that his student loans were discharged by his Chapter 13 bankruptcy. Although believing the loans were no longer due and owing, plaintiff made monthly loan payments based upon defendants' demands. He now seeks reimbursement of those payments.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). A complaint may not be dismissed for failure to state a claim under Rule 12(b)(6), "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and further, must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). But a complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the "right to relief above the speculative level." Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1965 (2007).
When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and matters of which the Court takes judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998).
It is well-settled law that student loan debts are presumptively non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(8).*fn3 Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). Student loans may not be discharged under Chapter 13 unless the debtor can show "undue hardship," 11 U.S.C. § 523(a)(8), and such a showing can only be made in an adversary proceeding. FED. R. BANKR. P. 7001(6). To initiate an adversary proceeding, the debtor must file a complaint, FED. R. BANKR. P. 7003, which must be served on the student loan creditor along with a summons, FED. R. BANKR. P. 7004.
Attached to the Voluntary Petition for Chapter 13 Bankruptcy was plaintiff's Plan. On Schedule F of the Plan, plaintiff listed all of his student loan creditors. (Plaintiff's Opp., Exh. A at 15.) The Plan provided that with respect to these unsecured creditors, "the Trustee shall pay dividends pro rata on claims allowed unsecured herein 28% of the amount allowed in full satisfaction thereon." Id. at 27. No interest was required to be paid to the creditors. Id.
The Bankruptcy Court Clerk mailed the required Notice of the § 341(a) Creditors' Meeting to all creditors listed in the Petition which included defendants here. See FED. R. ANKR. P. 2002. The Notice contained a summary of the Plan and a statement that a creditor was required to file a claim in order to participate in a distribution and "IF NO OBJECTION IS FILED, THE PLAN MAY BE CONFIRMED WITHOUT FURTHER NOTICE AND WILL BE BINDING ON ALL CREDITORS." (Exh. B at 28 (capitalization in original.)) As indicated in the Notice, the Creditors' Meeting was held on January 17, 2002. No creditors appeared and no objections to the Plan were made. The Court issued its Order Confirming Debtor's Plan and Allowing Attorneys Fees on January, 24, 2002. (Exh. C.) Plaintiff did not file an adversary action to have his student loan debt discharged because of undue hardship. As noted above, the bankruptcy court entered a discharge order upon completion of the Plan.
Defendants do not argue that they failed to receive the Notice of the § 341 Creditors' Meeting. Nevertheless defendants contend plaintiff's student loan debt has not been discharged because he did not file an adversary proceeding to discharge his student loan debt and due process requires that student loan creditors receive notice of the attempted discharge required by Federal Rules of Bankruptcy Procedure 7001, 7003, and 7004, i.e., the notice required for an adversary action.
Plaintiff relies on In re Pardee, 193 F.3d 1083 (9th Cir. 1999) to support his contention that the listing of the student loans in his Petition and Chapter 13 Plan and defendants' failure to object to the Plan after receiving notice of the Plan discharged the student loan debts notwithstanding the lack of an adversary action. As here, the student loan debtor in In re Pardee did not comply with the additional procedure of an adversary action as required by the Bankruptcy Code and Rules to discharge his student debt. The creditor had notice of Pardee's Petition and Plan, which included the discharge of the student loan debt, but did not file any objections to the Plan. Id, at 1084. The bankruptcy court confirmed the Plan and discharged the student loan debt. When Pardee sought to enforce the discharge and to enjoin the creditor from additional attempts to collect the ...