Skip to main content

Chance v. United States (In re Chance)

Name
IN RE: Brenda Lee CHANCE, DC Chance, Debtors Brenda Lee Chance, DC Chance, Plaintiffs v. United States of America, et al.
Attorney(s)
Eric C. Redman, Redman Ludwig PC, Indianapolis, IN, for Plaintiffs., Rachana Nagin Fischer, Jackson Taylor Kirklin, Office of U.S. Attorney, Karl T. Ryan, Indianapolis, IN, for Defendants., Robyn L. Moberly, United States Bankruptcy Judge This matter came before the court on January 22, 2019 for hearing on the motion for summary judgment filed by the Defendant, United States of America (the "Defendant") against the Plaintiffs, Brenda and DC Chance ("Plaintiffs"). For the reasons stated below, the court grants the Defendant's motion and determines that the student loans owed to the Defendant are nondischargeable under 11 U.S.C. § 523(a)(8)., Plaintiffs seek discharge of their student loans, alleging that payment of them would be an undue hardship. 11 U.S.C. § 523(a)(8). The Defendant designated fourteen (14) exhibits as evidence in support of its motion for summary judgment. Those exhibits include discovery responses, the depositions of each of the Plaintiffs, the Plaintiffs' school transcripts and copies of the Plaintiffs' bank statements from 2016 through late 2018. Its brief in support contained a section entitled "Statement of Material Facts Not in Dispute". This section contained a lengthy description of the Plaintiffs' work and educational history, student loans, subsequent work history and expenses. Each factual assertion was followed by a specific citation to the record supporting that fact., Plaintiff Brenda Chance ("Brenda") is 56 years old and Plaintiff DC Chance ("DC") is 57 years old. Brenda graduated from high school in 1981 and worked in the mortgage loan industry and later as a dental assistant. DC did title work for approximately 15 years before 2005. Both had experienced either layoffs or downturns in their jobs in 2005 and decided to attend school full time. They both enrolled in Marian University in the spring semester of 2005 to study nursing and were required to complete and pass prerequisite courses with a GPA of 3.0 or higher in order to be accepted into the nursing program. DC either withdrew from or had to retake some of the prerequisite classes. Brenda was accepted into the nursing program after two years of taking prerequisite classes, but DC was not, having earned a cumulative GPA of 2.88. Brenda was enrolled in six (6) nursing classes in the fall of 2007. It was her understanding that if she failed to pass the classes with a C+ grade or better, she would be out of the nursing program and would not be allowed to reapply to the program for five years. She was not passing at least two of the classes with that grade and therefore withdrew from all of her classes to avoid the five-year prohibition. Since she had to wait a semester before she could reapply to the nursing program, Brenda took other non-nursing courses in the Spring of 2008., Neither DC nor Brenda were gainfully employed during the time they attended Marian University and UNM. After leaving UNM, Brenda was unemployed for two years, from 2013 to 2015. She was hired by Edwards Electrical and Mechanical in the accounts payable department in March 2015 and earned $ 13 an hour. She was laid off in February 2017. In March 2017, Brenda went to work for Accountemps at $ 15 an hour and worked there until August 2017. In August 2017, she found new employment at Fanimation, Inc. in the accounts payable department earning $ 19.23 an hour and she continues to be employed there., DC worked for Swift as a truck driver in 2013 but was fired for too many accidents. After his departure from Swift in 2015, he worked at Metalworking Lubricants, AutoZone and FedEx. Since July 2015, DC has been working as a plumbing apprentice at Edwards Electrical and Mechanical and currently makes $ 19.70 an hour. He expected to complete the four-year plumbing apprenticeship sometime in 2019 and has the potential to increase his income if a journeyman position arises or if he decides to become a licensed plumber. He is required to stay with Edwards Electrical for four years after he completes the apprenticeship program., Among the $ 4559 in expenses listed on Schedule J are $ 475 for charitable contributions, $ 96 for "Dept of Education Student Loans" and $ 918 for "Navient Student Loans", leaving a monthly net income of $ 196. The charitable contributions are the Plaintiffs' 10% tithe to The Caring Place. In her deposition, Brenda testified that this expense was $ 622 a month. (Deposition of Brenda Lee Chance, ECF #33-1, pg 86 of 167, line 11-12). Records from The Caring Place obtained by the defendant show that the Plaintiffs never contributed more than $ 250 a month in 2017., The $ 918 payment to Navient is for Brenda's private student loan. DC also has a private student loan with Navient, but it is in forbearance and has not yet come due. Both Brenda and DC in their respective affidavits filed in opposition to the defendant's motion state, "Navient...is willing to reduce my debt to $ 25,000 payable over 10 years at a reduced interest rate at $ 241.40 per month", (Affidavit of Brenda Lee Chance, ECF #39, pg 10, ¶6; Affidavit of DC Chance, ECF #39, pg 14, ¶5.), The Plaintiffs maintain a checking at Huntington Bank. Most of the withdrawals from the checking account were by debit card. A review of the bank records from January 2016 through September 2018 show debit card charges for monthly, reoccurring charges owed to Capital One, Discover, Wells Fargo, Comcast, and Life Loc, and periodic payments on department store charges. Brenda frequented the Tyler Mason and Wildflower hair salons and visited these salons six times from January 2017 through September 2018 and spent an average of $ 116 per visit. Between April and September 2018, the Plaintiffs spent nearly $ 750 or an average of $ 125 a month, on "Stitch Fix", an online personal shopping subscription service. Most of the remaining debit charges were for eating out and movies. It was not unusual for the Plaintiffs to eat out at least 20 times each month. In August, 2018 alone, the Plaintiffs incurred 46 charges at restaurants and fast food places. In September, 2017, the month before they filed their chapter 7 case, they incurred 31 such charges., Other charges bear mentioning. The attorney fee paid by the Plaintiffs to file their bankruptcy case did not cover attorney fees for dischargeability litigation. The Plaintiffs filed this adversary proceeding on December 13, 2017. They paid their attorneys no less than $ 4800 between November 28, 2017 and April 30, 2018 to represent them in this action. There was a $ 2,000 payment to "Carmax" on May 14, 2018 and a $ 1499 payment to "SP RAD Power Bikes" on April 20. 2018. The Plaintiffs filed their chapter 7 case on October 25, 2017 and between October 2, 2017 and October 31, 2017, the Plaintiffs made nine (9) payments to Navient that totaled no less than $ 2900., Summary judgment is appropriate in cases where there is "no genuine dispute as to any material fact" and the "movant is entitled to judgment as a matter of law" under Fed. R. Civ. P. 56, applicable here under Fed. R. Bankr. P. 7056. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When a movant's motion is adequate to support the basis of movant's claims, it is the non-movant's burden to demonstrate a genuine issue of material fact for trial. Crawford v. Countrywide Home Loans, Inc ., 647 F.3d 642, 647 (7th Cir. 2011). A "material fact" is one that "might affect the outcome of the suit". Bailey v. Robbins , Case No. 2:15-cv-0272-JMS-MJD, 2017 WL 3052823 at *1 (S. D. Ind. July 19, 2017) quoting Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). While the court views the record in the light most favorable to the non-moving party, the non-moving party must still point to specific evidence that would be admissible at trial, which "could support judgment in [non-movant's] favor" in order to avoid entry of summary judgment against non-movant. Marr v. Bank of Am., N.A. 662 F.3d 963, 966 (7th Cir. 2011) ; Harris v. Bartles , No. 2:16-cv-00028-JMS-MJD, 2017 WL 3437902 at *1 (S. D. Ind. August 10, 2017).

ABI Membership is required to access the full summary of Chance v. United States (In re Chance) Please sign in if you are already an ABI member, or otherwise you may Become an ABI Member