Case fra Doc 1 Filed 10/03/13

Transcription

1 IN THE MATTER OF: IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION NAME: MCMANUS, SHANTI A. CHAPTER 7 CASE NO tmr7 DEBTOR. Shanti A. McManus, Plaintiff, v. U.S. Department of Education, Educational Computer Systems, Inc., Younomics/University Accounting Service, LLC., Council for South Texas Economic Progress, Missouri Higher Education Loan Authority, And SLM Corporation, Adv. Proceeding No. Defendants. Complaint to Determine Dischargeability of Student Loan 1. The Debtor filed this case under chapter 7 of the Bankruptcy Code on July 12, This Court has both personal and subject matter jurisdiction to hear this case pursuant to 28 U.S. C and 28 U.S.C. 157(b)(2) in that this proceeding arises in the above captioned Chapter 7 case under Title 11 and is concerning the Debtor s property. 3. To the extent that this matter is a core proceeding, this Court has jurisdiction to enter a final order. However, in the event this matter, or any part herein, is determined to be a non-core proceeding, then, and in that event, The Debtor consents to the entry of a final order by the Bankruptcy Judge. 4. Listed on Schedule F as debts owed by the Debtor were student loans owing to Defendants, being both federally funded loans and private loans. 5. Defendant, U.S. Department of Education (hereinafter DOE ), holds several claims against the Debtor, to-wit: (1) Loan , a Direct Loan, with subsidized interest for $23, as of July 23, 2013 and (2) Loan , a Direct Loan, with unsubsidized interest for $21, as of July 23, 2013.

2 6. Defendant, Educational Computer Systems, Inc., (hereinafter, ESCI ) holds a claim against Debtor for a Perkins loan in the amount of $ as July 23, Defendant, Younomics/University Accounting Service, LLC (hereafter UAS ), holds a claim against Debtor for a private student loan in the amount of $10, Defendant, SLM Corporation (more commonly known as Sallie Mae) (hereinafter SM ) holds private student loans in the amount of $108,887.62, to wit: a. Tuition Answer Loan 1329 $30, b. Tuition Answer Loan 1337 $19, c. Tuition Answer Loan 1345 $16, d. Tuition Answer Loan 1352 $35, e. Signature Student Loan 6017 $ 6, Defendant DOE has contracted with student loan servicers to handle billing and to provide repayment plans and loan consolidation services. The servicer was the Council for South Texas Economic Progress (hereinafter COSTEP ) and the DOE loans may be in the process of being transferred to the Missouri Higher Education Loan Authority (hereinafter MOHELA )for servicing. 10. Debtor s student loans constitute debts for an educational benefit overpayment or loan made, insured or guaranteed by a government unit, or made under any program funded in whole or in part by a governmental unit of nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend. 11. Excepting such debt from discharge under 11 U.S.C. 523 will impose an undue hardship on the Debtor. 12. These loans were incurred to pay school expenses while the Debtor/Plaintiff was attending Lane Community College and the University of Oregon as well as living expenses while attending each of the institutions. Debtor began at Lane Community College in 2000 as a first generation college student in her family in a design program. She was 32 years old and qualified for federal student loans, grants and private loans. Because of the undiagnosed learning disability with math, she wasn t accepted into the second year of the program.

3 She changed programs in 2004 to obtain an Associate of Arts in General Studies (AAGS), but had to take three quarters of classes before she was able to pass the math placement test to enter the AAGS program officially. She was able to complete that program eventually and in June 2006, she graduated from Lane Community College. In addition in 2006, she was diagnosed with a learning disability which prevented her from continuing to pursue her original degree goal, Graphic Design, as the higher level math was beyond her ability. 13. In 2006, the Debtor was accepted at University of Oregon. She chose a major which did not require much math and also received a request waiver of the higher level math requirement from the head of the Sociology Department. During that first year, she dealt with the termination of an abusive relationship and the death of her mother. She took out private student loans, all in an effort to remain in school. 14. In 2007, the Debtor was diagnosed with bipolar disorder and Attention Deficit Disorder. Notwithstanding those diagnoses, the Debtor continued to struggle in an attempt to continue her education and put her education first. However, the degree required a second language and the Debtor had similar issues with that requirement. She has learned that the math problems are also usually connected to problems learning a second language. She was unable to get a waiver of that requirement or to be able to substitute another course. The Debtor was not able to work while attending school and was unemployed from 2006 through Prior to 2006, she worked primarily part time jobs, only obtaining full time positions in 1994 and then in The Debtor has never held a full time job for longer than a year. 15. She left the University of Oregon in 2009 in order to care for her ailing significant other. He had been diagnosed with ALS (aka Lou Gehrig s disease). She struggled to find employment which would allow her to continue to care for him and found a part time position which allowed her to assist him. He died in October By July 2012, the Debtor made the difficult decision to file for Chapter 7 bankruptcy. 16. Debtor has managed to make a few payments on these loans but generally, the loans have been in default or deferment since the mid-2007s. For the past 9 years, Debtor has

4 been unable to find full time employment, both due to severe economic conditions, her medical condition, and attending school (until 2009). The medical condition becomes more problematic and severe when the Debtor is under stress and she has accepted that she may never be able to obtain full time employment or continue with her education in order to receive a degree. She has also realized that the many of the decisions to continue and struggle with classes were made while undiagnosed or during initial attempts at treatment of the bipolar disorder and the Attention Deficient Disorder. 17. The Debtor attempted to obtain a reasonable and affordable payment plan but Defendant SallieMae will not propose a reasonable and affordable payment program given the limitations of Debtor s budget and work situation. SM s only solution was to offer a $500 per month payment which would only be applied towards interest. When Debtor explained that she could not make that level of payment, the representatives indicated that $500 was the best she could hope for and that SM would not agree to any alternative plan. The Debtor proposed trying to pay $200/month on principal only and that was rejected. Even that $200 a month was overstretching the Debtor s budget. 18. The Debtor did have an economic forbearance for the SM loans but is no longer eligible for any further forbearances, according to the information SM provided her. The federal loans have placed her on an income-based payment plan and her payment is currently $0. The reality is that she will not be able to ever make any significant payment on her student loans. 19. The Debtor has no current or anticipated available income or resources with which to pay the aforementioned loans and any payments on those loans could be made only at great hardship to the Debtor. The Debtor cannot obtain a four-year degree in Sociology without passing foreign language courses and cannot pass those courses. In addition, she is not eligible for any further financial assistance from the federal direct loan program and would have to pay tuition and all expenses in order to take the two years of language (which, given her history, will likely take longer); Debtor is not financially able to pay tuition or give up her employment in order to pursue more college education. 20. Total student loan debt owed by the Debtor is $169, It is an undue

5 hardship on the debtor to continue to pay on these loans as she will never be able to reduce the principal and the interest accruing each month will be more than any payment. The Debtor is a 42 year old widow. Although the student loans were incurred both pre- and post-diagnosis, it was her intention to complete school and use her degree as she believed she would be able to manage her mental disease or defect. However, she was unsuccessful in her academic endeavors as the mental disease or defect has only gotten worse as life continued to deal her loss after loss: emotionally, physically, and economically. Debtor Plaintiff would have brought this action earlier but was unable to obtain legal counsel willing to litigate this matter. WHEREFORE, the Debtor prays that this Court enter an Order declaring all of the student loan debts of the Debtor to be dischargeable in this bankruptcy case. Dated this the 3 rd day of October, _/s/karen M. Oakes Karen M. Oakes Oakes Law Offices, P.C. Attorney for the Debtor 6502 South 6 th Street Klamath Falls, OR OSB # (541) FAX (888) Karen@oakeslawoffice.com

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