Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

In re Coleman


March 25, 2009


Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding. D.C. No. CV-05-05231-SC

The opinion of the court was delivered by: Hawkins, Circuit Judge



Argued and Submitted May 14, 2008 -- San Francisco, California

Before: Diarmuid F. O'Scannlain and Michael Daly Hawkins, Circuit Judges, and James V. Selna,*fn1 District Judge.

We consider whether "undue hardship" determinations- whereby bankruptcy courts decide whether student loans qualify for discharge-are ripe in a Chapter 13 case substantially in advance of plan completion.


Cathy Coleman filed for bankruptcy under Chapter 13 in 2004, and the bankruptcy court confirmed a five-year repayment plan. Coleman owes over $100,000 in student loans to Educational Credit. Since graduating from college, Coleman has been irregularly employed as a substitute teacher and art teacher, and was laid off in March of 2005. Just under a year after the plan was confirmed, Coleman sought a determination that it would constitute an undue hardship under 11 U.S.C. § 523(a)(8) for her to repay her student loans, and that her student loans should therefore not be excepted from discharge. Educational Credit moved to dismiss for lack of subject matter jurisdiction on ripeness grounds. The bankruptcy court denied the motion, In re Coleman, 333 B.R. 841 (Bankr. N.D. Cal. 2005), the district court affirmed the decision of the bankruptcy court, and Coleman appealed. After initially filing an Opinion in that appeal, Educ. Credit Mgmt. Corp. v. Coleman (In re Coleman), 2008 U.S. App. LEXIS 16424 (9th Cir. Aug. 1, 2008), this court noted that because the bankruptcy court's denial of Educational Credit's motion to dismiss was an interlocutory order, there was no appellate jurisdiction. Consequently, we vacated the Opinion and remanded the case to the district court in order to allow it to determine whether to certify this issue for appeal under 28 U.S.C. § 1292(b). Educ. Credit Mgmt. Corp. v. Coleman (In re Coleman), 539 F.3d 1168 (9th Cir. 2008). On remand, concluding that its order involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal of the issue would materially advance the termination of the litigation, the district court certified the matter for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).


We review the district court's decision on an appeal from a bankruptcy court de novo. In re Daily, 47 F.3d 365, 367 (9th Cir. 1995) (per curiam); In re Siragusa, 27 F.3d 406, 407 (9th Cir. 1994). "We apply the same standard of review to the bankruptcy court [decision] as does the district court: findings of fact are reviewed under the clearly erroneous standard, and conclusions of law, de novo." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir. 1990). The issue of ripeness is a question of law. Chang v. United States, 327 F.3d 911, 921 (9th Cir. 2003).


[1] Debtors who seek Chapter 13 relief commit to a three-to five-year period of repayment, after which their remaining debts are discharged.*fn2 Unlike Chapter 7 debtors, who are entitled to a discharge of debt as soon as their estate is liquidated and distributed,*fn3 Chapter 13 debtors are not entitled to a discharge of debts unless and until they complete payments to creditors under a three- to five-year plan.*fn4 11 U.S.C. § 1328(a)(2).*fn5 Student loans are excepted from discharge unless the debtor can show "undue hardship." Id. §§ 523(a)(8), 1328(a)(2).*fn6 Coleman is currently making payments under her five-year Chapter 13 plan. She will not be entitled to discharge any of her debts until she completes this plan, and will not be entitled to discharge her student loans unless she can show "undue hardship."

[2] To show undue hardship, the debtor must show "(1) that she cannot maintain, based on current income and expenses, a 'minimal' standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment portion of the student loans; and (3) that the debtor has made good faith efforts to repay the loans." In re Saxman, 325 F.3d 1168, 1172 (9th Cir. 2003).

The question before us is one of timing: may Coleman obtain this undue hardship determination substantially in advance of the time she completes payments under her Chapter 13 plan?

[3] Federal Rule of Bankruptcy Procedure 4007(a) provides that "A debtor or any creditor may file a complaint to obtain a determination of the dischargeability of any debt." Under Federal Rule of Bankruptcy Procedure 4007(b), "[a] complaint other than under § 523(c)*fn7 may be filed at any time."*fn8

Coleman argues that this Rule shows that the undue hardship determination is ripe at any time, while Educational Credit argues that, because Coleman cannot obtain a discharge unless and until she completes payments under the plan, the undue hardship determination is not ripe until at or near the time Coleman completes plan payments.

1. Constitutional Ripeness

[4] Ripeness has two components: constitutional ripeness and prudential ripeness.*fn9 Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). "The constitutional ripeness of a declaratory judgment action depends upon 'whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' " United States v. Braren, 338 F.3d 971, 975 (9th Cir. 2003) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)); see also Hulteen v. AT&T Corp., 498 F.3d 1001, 1004 n.1 (9th Cir. 2007) (en banc) (finding jurisdiction because "substantial controversy" requirement was met).

[5] The issues presented must be "definite and concrete, not hypothetical or abstract." Thomas, 220 F.3d at 1139 (internal quotation marks omitted). Where a dispute hangs on "future contingencies that may or may not occur," Clinton v. Acequia, Inc., 94 F.3d 568, 572 (9th Cir. 1996), it may be too "impermissibly speculative" to present a justiciable controversy. Portland Police Ass'n v. City of Portland, 658 F.2d 1272, 1273 (9th Cir. 1981). "The constitutional component of ripeness is a jurisdictional prerequisite." United States v. Antelope, 395 F.3d 1128, 1132 (9th Cir. 2005).

[6] A "substantial controversy" arose between Coleman and Educational Credit when Coleman filed for bankruptcy protection under Chapter 13: Coleman's purpose in filing was to seek the discharge of her student loans, and Educational Credit seeks to prevent this. Further, the controversy here is certainly "definite and concrete, not hypothetical or abstract,"*fn10

because it is a controversy between Coleman and Educational Credit over a specific and defined debt.

[7] It is true that Coleman's actual discharge of her student loans will only occur, if at all, when she completes payments under the plan. 11 U.S.C. § 1328(a)(2). If she does not complete her plan payments, there will be no discharge.*fn11

But plan completion is a single factual contingency - not a "series of contingencies" rendering the decision "impermissibly speculative." See Portland Police, 658 F.2d at 1273, 1274. In Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1211 (9th Cir. 2006) (per curiam), this court concluded that a challenge to the enforceability of a French court injunction was constitutionally ripe even though enforcement of that injunction had yet to be sought.*fn12 If this factual contingency did not render the dispute so "impermissibly speculative" that it failed to meet the "case or controversy" requirement, it is difficult to see how the dispute between Coleman and Educational Credit would not also qualify as constitutionally ripe. Just as Coleman could fail to complete her plan payments, parties to the Yahoo! dispute at the time ripeness was at issue could have decided not to seek the enforcement of its injunction in the United States.*fn13 The dispute here is constitutionally ripe.

2. Prudential Ripeness Test

The Supreme Court has held that "[p]roblems of prematurity and abstractness may well present 'insuperable obstacles' to the exercise of the Court's jurisdiction, even though that jurisdiction is technically present." Socialist Labor Party v. Gilligan,*fn14 406 U.S. 583, 588 (1972) (citing Rescue Army v. Mun. Court, 331 U.S. 549, 574 (1947)).

[8] The Supreme Court has developed a two-part test for determining the prudential component of ripeness in the administrative context: "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).*fn15 Originally, we generally applied this two-part test in making prudential ripeness determinations without strictly limiting the test to the administrative law context. See, e.g., Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 850 (9th Cir.), amended on denial of reh'g, 312 F.3d 416 (9th Cir. 2002); Knight v. Kenai Penninsula Borough Sch. Dist., 131 F.3d 807, 814 (9th Cir. 1997); In re Dominelli, 788 F.2d 584, 585 (9th Cir. 1986).

[9] However, in Principal Life Insurance Co. v. Robinson, 394 F.3d 665 (9th Cir. 2005), we held that Abbott does not apply to private contract disputes, and suggested that the test may only be appropriate in the administrative law context. The court noted, because an administrative action "has consequences for many members of the general public," it is "pru-dent for courts to limit their review of such actions to those involving the possibility of concrete injury greater than speculative or remote financial contingencies." Id. at 670-71. The court also observed that the concerns expressed in Abbott over "judicial entanglement," "allocation of authority," and the risks of "wide-ranging and remote adverse consequences" in administrative agency actions do not apply to private party contract disputes. Id. at 671.

The court then declined to apply the Abbott test to a private party contract dispute over a rent-adjustment provision, finding the matter ripe even though the provision was contingent upon future property value. Noting that "the fundamental role of the courts is to resolve concrete and present disputes between parties," the court held that the proper test for ripeness in private party contract disputes is "the traditional ripeness standard, namely, whether 'there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' " Id. at 671 (quoting Md. Cas. Co., 312 U.S. at 273).*fn16

Principal does not tell us whether the Abbott test would be appropriate in this context-a private party dispute that is governed not by contract but by the Bankruptcy Code. However, prior to Principal, disputes in the bankruptcy context were subjected to the Abbott ripeness test. See, e.g., Dominelli, 788 F.2d at 585-86 (dispute as to whether debtor's estate could be required to pay legal expenses of creditor committee ripe under Abbott test even though counsel had not yet sought fees); In re Gen. Carriers Corp., 258 B.R. 181, 186 (B.A.P. 9th Cir. 2001) (dispute over bankruptcy court's jurisdiction to enter abstention order ripe under Abbott test). Because Principal did not (and could not) overrule Dominelli's application of Abbott in the bankruptcy context, we must apply Abbott here.*fn17

3. Prudential Ripeness Here

A. Background

Turning to the specific inquiry at hand, we note that Courts of Appeal are currently split as to whether student loan dischargeability determinations are ripe substantially in advance of plan completion. Most courts to address the issue do not specify which ripeness standard they are employing. The Ninth Circuit Bankruptcy Appellate Panel ("BAP") has held that the issue of student loan dischargeability is ripe before the completion of plan payments. In re Taylor, 223 B.R. 747, 751-52 (B.A.P. 9th Cir. 1998), overruled on other grounds by Saxman, 325 F.3d at 1175.*fn18 Without explicitly applying the Abbott test or any particular ripeness standard, the BAP reasoned that the issue was ripe because Bankruptcy Rule 4007(b) expressly permits the filing of a § 523(a)(8) complaint "at any time," and no statute or policy conflicts with the filing of such a complaint at any time. Taylor, 223 B.R. at 751-752.

The Fourth Circuit has also held that undue hardship determinations may be ripe in advance of plan completion. In re Ekenasi, 325 F.3d 541, 547 (4th Cir. 2003). The court expressly "decline[d] 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 completed payments under a confirmed Chapter 13 plan." A bankruptcy court in the Southern District of Ohio also took this approach. In re Strahm, 327 B.R. 319, 323-24 (Bankr. S.D. Ohio 2005).*fn19

Two Courts of Appeal disagree with Taylor. The Eighth Circuit, without applying any particular ripeness test,*fn20 held that, in undue hardship determinations, "the factual question is whether there is undue hardship at the time of discharge, not whether there is undue hardship at the time that a § 523(a)(8) proceeding is commenced." In re Bender, 368 F.3d 846, 848 (8th Cir. 2004). The court reasoned that student loan dischargeability proceedings "should take place relatively close to [the date of discharge] so that the court can make its determination in light of the debtor's actual circumstances at the relevant time." Id. Similarly, the Fifth Circuit has held, in contrast to Taylor, that the undue hardship determination is not ripe until plan completion because dischargeability is not available until plan completion.*fn21 In re Rubarts, 896 F.2d 107, 109 (5th Cir. 1990).*fn22

[10] Applying Abbott, we agree with the Fourth Circuit and with the Ninth Circuit BAP that an undue hardship determination can be ripe substantially in advance of plan completion.

B. Fitness

[11] The purpose of the "fitness" test under Abbott is to delay consideration of the issue until the pertinent facts have been well-developed in cases where further factual development would aid the court's consideration. See, e.g., Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 812 (2003) (further factual development would "significantly advance our ability to deal with the legal issues presented" so the matter determined not ripe for judicial review) (internal quotation marks omitted); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990) (regulation ordinarily not ripe for review "until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by concrete action applying the regulation to the claim-ant's situation in a fashion that harms or threatens to harm him"); Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 695 (9th Cir. 2007) (issue not fit for review absent proper factual context to aid court's determination); Natural Res. Def. Council, Inc. v. EPA, 22 F.3d 1125, 1133 (D.C. Cir. 1994) (considering "whether consideration of the issue would benefit from a more concrete setting" in determining whether an issue is "fit" under the Abbott test).

[12] Although a case is more likely to be "fit" if it involves "pure legal questions that require little factual development," San Diego County Gun Rights Committee, 98 F.3d at 1132, fact-intensive inquiries that depend on further factual development may nevertheless be ripe if, as here, that development would do little to aid the court's decision. In the bankruptcy context, there are many situations in which the factual context may never be ideally well-developed. Congress has given bankruptcy courts the task of undertaking complex factual inquiries that depend, by their very nature, on future events and contingencies. Whether a bankruptcy court decides to lift an automatic stay depends upon its assessment of the debtor's ability to adequately protect against future decline in the collateral's value and ultimately successfully reorganize. 11 U.S.C. §§ 362(d), 363(e); United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 377 (1988). At that moment the bankruptcy court essentially must predict whether the debtor is doomed or has some reasonable chance of rehabilitation. Whether a bankruptcy court decides to confirm a Chapter 13 plan depends upon the likelihood that the debtor will be able to make all required payments under the plan. 11 U.S.C. § 1325(a)(6). In all of these situations, delay is unlikely to provide much, if any, additional benefit to the bankruptcy court's resolution of the issue.

[13] The same is true here: The undue hardship inquiry itself contemplates factual contingencies many years into the future. See Coleman, 333 B.R. at 847. Under the second prong of the undue hardship test, the debtor must 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." Saxman, 325 F.3d at 1173. Many student loan repayment periods are thirty years in duration-a "significant portion" of this period is far longer than the duration between the initiation and conclusion of the Chapter 13 plan. A determination of lack of ripeness due to the factual contingency of the debtor's financial situation makes little sense since the court must always speculate on debtor's financial situation years into the future.

[14] Educational Credit also argues that the determination whether "the debtor has made good faith efforts to repay the loans," Saxman, 325 F.3d at 1173, cannot be made until at or near plan completion. However, whether it is premature for the court to make such a determination varies depending on each debtor's situation. See, e.g., Ekenasi, 325 F.3d at 547. If the debtor has been trying in vain to make student loan payments for the past fifteen years, the facts may be sufficiently well developed for the court to conclude that the debtor made good faith efforts to repay. If, on the other hand, the debtor files for bankruptcy immediately upon graduating from college, it will likely be necessary to wait the duration of the plan before a good faith determination is possible. Here Coleman has been trying to repay her student loans since 1999, which seems to us a sufficient amount of time for the bankruptcy court to evaluate whether she has made a good faith attempt at repayment.

[15] We disagree with the Eighth Circuit's conclusion that bankruptcy courts should not make an undue hardship determination until the time of discharge because "the factual question is whether there is undue hardship at the time of discharge, not whether there is undue hardship at the time that a § 523(a)(8) proceeding is commenced." Bender, 368 F.3d at 848. The bankruptcy court below correctly noted that there is no clause in § 523(a)(8) specifying that the undue hardship must exist exactly at the time of discharge. Coleman, 333 B.R. at 849. The Fourth Circuit's approach permits a debtor to choose the "snapshot date" for determining undue hardship on the grounds that the "text of the pertinent statute does not prohibit such an advance determination." Ekenasi, 325 F.3d at 547.

This approach is consistent with the statute and makes sense in light of Bankruptcy Rule 4007(b). While that rule could not, of course, render a constitutionally unripe matter ripe, it counsels in favor of a finding of prudential ripeness.

C. Hardship

[16] Hardship to the debtor from postponing a decision in this situation supports a finding of ripeness. Abbott, 387 U.S. at 149. Here, the hardship to Coleman is committing to a Chapter 13 plan for three to five years without any guarantee that her student loans will be discharged at the end of this time period. Because debtors must commit all of their disposable income to payments under a Chapter 13 plan, 11 U.S.C. § 1325(b)(1)(2), five years repayment is a considerable burden to bear without any guarantee that the debt will be ultimately discharged. 11 U.S.C. § 1328(a)(2).

Theoretically, Coleman could convert her case to a Chapter 7 bankruptcy, assuming that she meets the requirements for filing under that Chapter,*fn23 and receive a discharge under 11 U.S.C. § 727(a). However, it appears the reason Coleman filed under Chapter 13 rather than Chapter 7 was that she was unable to afford an up-front payment for the undue hardship litigation. In Chapter 7, debtors' attorneys may not be paid from the estate, so unless the attorney is paid up-front, she is unlikely to be paid.*fn24 In a Chapter 13, however, the attorney is often paid as part of the plan.*fn25

Because Coleman apparently cannot finance the undue hardship litigation up-front, she would have to proceed with the undue hardship litigation pro se, if at all.

A fundamental purpose driving the bankruptcy system is to "relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes." Local Loan v. Hunt, 292 U.S. 234, 244 (1934). Debtors who are primarily burdened by student debt will not emerge from bankruptcy with a "fresh start" if those student loan debts are not dischargeable-and if they are forced to pursue the undue hardship matter pro se, the likelihood of a successful undue hardship hearing is probably substantially reduced given the complexity of the inquiry. See generally, Feather D. Baron, The Nondischargeability of Student Loans in Bankruptcy: How the Prevailing "Undue Hardship" Test Creates Hardship of Its Own, 42 U.S.F. L. Rev. 265 (2007). Because the undue hardship standard is extremely difficult to meet,*fn26 a debtor who would meet the undue hardship standard and yet is unable to obtain an undue hardship determination because it is not yet ripe may be forced to rely on public benefits-or may turn to credit as a means of meeting their basic needs. See generally, Elizabeth Warren, Less Stigma or More Financial Distress: An Empirical Analysis of the Extraordinary Increase in Bankruptcy Filings, 59 Stan. L. Rev. 213 (2006). In a case where a debtor faces genuine undue hardship from student loan debt, the debtor's best shot at a fresh start may be to litigate the matter in a Chapter 13 case.*fn27

[17] Prudential ripeness considerations do not warrant taking the undue hardship determination away from the bankruptcy court at the time when its resolution may be integral to successful completion of the plan. Absent a constitutional ripeness impediment to the undue hardship determination- which does not exist here-we see no prudential reason to delay the determination where the record, as here, is sufficiently well-developed for the bankruptcy court to undertake the analysis.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.