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In re Nielsen

United States Bankruptcy Appellate Panel of the Eighth Circuit

October 27, 2014

In re: Erik Nielsen; Kathryn R Nielsen, Debtors; Kathryn R Nielsen, Plaintiff - Appellant
v.
ACS, Inc., Defendant, Educational Credit Management Corporation, Intervenor Defendant - Appellee; Kathryn R Nielsen, Plaintiff - Appellant
v.
Iowa Student Loan Liquidity Corporation, Defendant - Appellee, Educational Credit Management Corporation, Intervenor Defendant - Appellee

Submitted September 24, 2014.

Appeal from United States Bankruptcy Court for the Southern District of Iowa - Council Bluffs.

Kathryn R Nielsen, Plaintiff - Appellant (13-6034, 13-6035), Pro se, Red Oak, IA.

For Iowa Student Loan Liquidity Corporation, Defendant - Appellee (13-6034): Matthew Charles McDermott, BELIN & MCCORMICK, Des Moines, IA.

For Educational Credit Management Corporation, Intervenor Defendant - Appellee (13-6034, 13-6035): Laura R. Luetje, LAMBERTI & GOCKE, Ankeny, IA; Adam Clinton Trampe, EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Oakdale, MN; Brooke Van Vliet, BRICK & GENTRY, West Des Moines, IA.

Before FEDERMAN, Chief Judge, SCHERMER and SALADINO, Bankruptcy Judges.

OPINION

Page 530

SCHERMER, Bankruptcy Judge

Kathryn R. Nielsen (the " Debtor" ), appeals the bankruptcy court's[1] ruling denying her request for discharge of her student loan obligations to Educational Credit Management Corporation (" ECMC" ) under 11 U.S.C. § 523(a)(8). We have jurisdiction over this appeal.[2] See 28 U.S.C. § 158(b). For the reasons that follow, we affirm.

ISSUE

The issue on appeal is whether the bankruptcy court properly held that the Debtor failed to meet her burden of proving an undue hardship under 11 U.S.C. § 523(a)(8).

BACKGROUND

On October 7, 2009, the Debtor, together with her husband, Erik Nielsen, filed a voluntary petition for relief under Chapter 7. On January 21, 2010, the Debtor filed two adversary proceedings that are the subject of this appeal, seeking determinations that her student loans were dischargeable.[3]

Page 531

The Debtor's husband, Erik Nielsen, filed a separate adversary proceeding, seeking to discharge his own student loan debt. The three adversary proceedings were consolidated for the purposes of discovery, but they were not consolidated at the time of the trial.[4] In the order on appeal to us, the bankruptcy court stated that " pursuant to the Plaintiff's request, all exhibits, arguments, statements and information whether supplied by [the Debtor or Mr. Nielsen], in their respective cases, have been reviewed and considered in the determination of this adversary proceeding." We do the same and consider the record to include all of such documents and information available from the bankruptcy court's dockets or otherwise provided to us in this appeal.[5]

During high school, the Debtor earned college credits from course work through a local community college. After graduating from high school in 1995, the Debtor attended the University of Nebraska-Omaha for three semesters, and ultimately obtained an Associates of Science degree in biology when she continued her studies at Iowa Western Community College. Thereafter, the Debtor obtained two degrees, a Bachelor of Science in Health Services Administration in 2000 and a Master of Business Administration in 2001, both from the University of South Dakota. The Debtor also worked toward a Master Degree in Public Administration at the University of South Dakota, but she failed to complete that program due to problems during pregnancy in 2005. The Debtor obtained 23 student loans from 1996-2005 and she testified that she was 36 years old at the time of trial.

The Debtor devotes considerable attention in her briefs to an alleged medical condition of herself, her husband and her oldest son related to allergies and mold exposure, which in her opinion forms a basis of a disability and results in an undue hardship. The bankruptcy court summarized exhibits presented by the Debtor, dealing with records from allergy and injection treatments in 2003, ultrasound records from the Debtor's pregnancy, records from medical visits due to skin issues in the summer of 2005, notes from doctor visits for the Debtor's son, the Debtor's deposition, and documents submitted to show the consequences of mold exposure. It determined that the Debtor's evidence did not show a disability from mold exposure that would result in undue hardship.

The bankruptcy court classified the Debtor's work history following high school as " minimal, if non-existent." It also cited to the Debtor's belief after obtaining ...


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