On December 21, 2020, the United States Trustee Program (USTP) published a final rule in the Federal Register, entitled the “Procedures for Completing Uniform Periodic Reports in Non-Small Business Cases Filed Under Chapter 11 of Title 11” (the “Final Rule”). See 28 C.F.R. § 58.8.

Bankruptcy practitioners should be aware that the Final Rule becomes effective for all reports filed on or after June 21, 2021.

The Final Rule requires that the filing of pre-confirmation monthly operating reports (MORs) and quarterly post-confirmation reports (PCRs) be done by using “streamlined, data-embedded, uniform forms in every case in every judicial district where the USTP operates.” See Notice Regarding the United States Trustee Program’s New Chapter 11 Periodic Reports (28 C.F.R. § 58.8).  This Final Rule applies to all debtors, except for those small business debtors who have filed under subchapter V of chapter 11.

The new forms and updates regarding the Final Report and Implementation will be posted by the USTP.

Stephanie Slater is a Law Clerk, based in the firm’s Wilmington, DE office.

The Delaware Bankruptcy Court now has eight judges to manage its hectic caseload.  Judge Craig Goldblatt was sworn in as a United States Bankruptcy Judge for the District of Delaware on April 26, 2021.  Judge Goldblatt fills the seat of former Judge Kevin Gross, who retired in 2020.

Prior to joining the bench, Judge Goldblatt was a partner in the Bankruptcy and Financial Restructuring Group at Wilmer Cutler Pickering Hale and Dorr LLP.  According to an Announcement from Chief Judge Christopher S. Sontchi, Judge Goldblatt’s practice primarily focused on the representation of financial institutions and other commercial creditors in complex bankruptcy litigation and appeals.  Additionally, Judge Goldblatt is a Conferee in the National Bankruptcy Conference and a fellow in the American College of Bankruptcy, where he chairs the Education Committee.

April was a busy month for the Delaware Bankruptcy Court with the appointment of Judge J. Kate Stickles and Judge Craig Goldblatt within weeks of each other.  Since the 2019 retirement announcement of former Judges Kevin Carey and Kevin Gross, the Delaware Bankruptcy Court has welcomed four new judges: Judge John T. Dorsey, Judge Karen B. Owens, Judge J. Kate Stickles, and most recently, Judge Craig Goldblatt.

As the Delaware Bankruptcy Court has seen an uptick of cases since 2019, the eight-member bench is now fully equipped to handle the heavy caseload.

Stephanie Slater is a Law Clerk, based in the firm’s Wilmington, DE office.

Judge Harlin D. Hale of the United State Bankruptcy Court for the Northern District of Texas dismissed the chapter 11 bankruptcy case filed by the National Rifle Association (the “NRA”) for cause, finding that the case was not filed in good faith.1  In its 38-page opinion issued in connection with multiple motions to dismiss and a motion to appoint an examiner (and after 12 days of trial testimony from 23 witnesses) the Court found that there was cause to dismiss the case because “the NRA’s bankruptcy petition was not filed in good faith but instead was filed as an effort to gain an unfair litigation advantage” in a dissolution action brought by the State of New York “and as an effort to avoid a regulatory scheme.”

The Filing and Dismissal

In August 2020 the New York Attorney General filed a complaint seeking, among other things, dissolution of the NRA (the “NYAG Enforcement Action”).  The complaint also sought other relief such as restitution from officers and it named certain individuals, including the NRA’s Executive Vice President Wayne LaPierre, as defendants in the complaint.

The NRA filed its chapter 11 case on January 15, 2021.  Several parties in interest filed motions seeking dismissal for cause under section 1112(b) of the Bankruptcy Code or the appointment of a chapter 11 trustee or an examiner.  Relying on Fifth Circuit authority, the Bankruptcy Court noted that the term “cause” affords flexibility to the bankruptcy courts and can include a finding that the debtor’s filing for relief is not in good faith.  In re Little Creek Dev. Co., 779 F.2d 1068, 1072-73 (5th Cir. 1986); In re Humble Place Joint Venture, 936 F.2d 814, 816-17 (5th Cir. 1991).  Furthermore, courts have held that a chapter 11 petition is not filed in good faith unless it serves a valid bankruptcy purpose. Off. Comm. of Unsecured Creditors v. Nucor Corp. (In re SGL Carbon Corp.), 200 F.3d 154, 165 (3d Cir. 1999).

In examining whether the NRA’s Chapter 11 case was filed in good faith, the Court applied a “totality of the circumstances approach” to filing requirements and considered the following two inquiries particularly relevant to the question of good faith: (1) whether the petition serves a valid bankruptcy purpose and (2) whether the petition is filed merely to obtain a tactical litigation advantage.  In re 15375 Mem’l Corp., 589 F.3d 605, 618 (3d Cir. 2009).

The NRA’s stated purposes for filing for bankruptcy, with some variations in pleadings and public statements, ostensibly were to (1) centralize and streamline litigation and claims, (2) reduce costs and reorganize the corporate structure and (3) move its corporate domicile to Texas.  However, the Court noted that that the NRA or its representatives, through various statements and filings, heavily emphasized the move to Texas as having the effect of avoiding the NYAG Enforcement Action. This seemed to be the most consistently stressed reason for the filing.  Indeed, in its opening statement, the NRA attorneys said the NRA was seeking to avoid “the death penalty” by filing for bankruptcy.  As a result of the trial, and relying heavily on Mr. LaPierre’s testimony, the Court determined that the NRA’s purported reasons for filing were not genuine and that the evidence demonstrated the true reason for filing for bankruptcy was to escape the NYAG Enforcement Action.

In dismissing the bankruptcy case, the Court explained that if the NRA could escape the NYAG Enforcement Action through the bankruptcy process, this would clearly give the NRA an unfair litigation advantage and subvert the State of New York’s ability to regulate not-for-profit corporations under its laws.  The Court distinguished between debtors who seek relief from monetary judgments and those who seek to avoid state regulation: “Debtors commonly file bankruptcy when faced with a judgment that has, or will, render them insolvent, but the threat against the NRA differs from the classic scenario in that dissolution would not be a collateral effect of litigation but rather the intended relief sought in a state’s regulatory action. And in this instance, dissolution could only occur after judicial consideration of whether dissolution is in the best interest of the public.”  The Court noted that while “bankruptcy courts can apply regulatory law, a bankruptcy case filed for the purpose of avoiding a regulatory scheme is not filed in good faith and should be dismissed.”

The Court Relied on Mr. LaPierre’s Testimony

Shortly before the bankruptcy filing, the NRA’s board of directors held a meeting on January 7, 2021 to, among other things, approve a new employment agreement for Mr. LaPierre.  The new employment agreement contained language permitting him to “exercise corporate authority in furtherance of the mission and interests of the NRA, including without limitation to reorganize or restructure the affairs of the Association for the purposes of cost- minimization, regulatory compliance or otherwise.”  Through testimony at the trial, the Court learned that throughout the entirety of the board meeting, both in the general and executive sessions, no discussion of bankruptcy, chapter 11 or the possible reorganization of the NRA occurred.  The board of directors was not informed that the language cited above could authorize Mr. LaPierre to unilaterally authorize file a bankruptcy petition on behalf of the NRA.  In fact, the board of directors was not informed that the NRA was considering filing for bankruptcy at all.  Mr. LaPierre and only four other people in the NRA (excluding the Chief Financial Officer or the General Counsel) knew of the plan to file chapter 11.2

Because Mr. LaPierre was so central to the filing of the case, there was no need to resolve inconsistent or conflicting reasoning and motivations of individuals who all had an equal say in the decision.  Rather, the Court found that the ultimate decision to file for bankruptcy was made solely by Mr. LaPierre. Mr. LaPierre’s testimony as to the reasons for filing for bankruptcy demonstrated how important the move to Texas from New York was for the NRA.  Mr. LaPierre stated that the NRA sought a “fair legal playing field where the NRA could grow and prosper in a fair legal environment.”  The NRA’s public communications also stated that it commenced a Chapter 11 petition primarily because of “the unhinged and political attack against the NRA by the New York Attorney General.”  Mr. LaPierre confirmed that the NRA’s financial position did not necessitate the filing and that if the case was dismissed the NRA would be able to pay all of its debts.  The Court found the following exchange to be helpful:

Q: Okay. So it comes down to the reason you filed Chapter 11 is because you have this New York attorney general enforcement action which is asking for dissolution of the NRA; is that correct?

[Counsel for the NRA]: Objection; misstates his testimony.

[Counsel for the Movant]: Well –

THE COURT: Well, I’m going to go ahead and let him answer that. Try to give an answer to that, Mr. LaPierre.

THE WITNESS: Yes, Your Honor. Yes, we filed the Chapter 11 to — because the New York State attorney general is seeking dissolution of the NRA and [seizure of] its assets, and we believe it’s not a fair, level playing field.

. . . .

Q: So really what we’re down to is that it’s — the New York attorney general action is the reason you believe you need to be in bankruptcy, and, really, solvency and all your other litigation, those are not issues that would require you to be in bankruptcy; is that correct?

A: That’s correct.

The Court characterized the foregoing exchange as demonstrating that “but for the NYAG Enforcement Action, it would not have been necessary to file for bankruptcy.”  Therefore, based on Mr. LaPierre’s unique standing within the NRA and his recently granted authority under which he could unilaterally cause the NRA to file for bankruptcy, the NRA’s fortunes in the case were directly tied to his testimony evidencing that the NRA’s Chapter 11 filing was made for the purpose of escaping from the NYAG Enforcement Action.  As this showed a lack of good faith in filing, the NRA’s case was dismissed.

Takeaways

The NRA’s case, and its dismissal, should demonstrate that the bankruptcy courts will see through a debtor’s attempt to forum-shop its way out of a state regulatory action.  If presented with a motion to dismiss a chapter 11 case for cause, a court will look to determine the true purpose or purposes for filing for bankruptcy.  In the NRA case, the Court found that Mr. LaPierre’s testimony would be the most direct evidence of the purpose for filing because he had unilateral authority to file the bankruptcy.  Potential debtors should be prepared to provide credible evidence of a valid bankruptcy purpose for filing, which cannot be to avoid a state regulatory action, to help survive a motion to dismiss for cause.

Notes:

  1. The Court also found that the appointment of a chapter 11 trustee or examiner would not have been in the best interests of creditors and the estate.
  2. The Court expressed concern about the “surreptitious manner in which Mr. LaPierre obtained and exercised authority to file bankruptcy for the NRA.” It stated that excluding the board and important officers from the process was “nothing less than shocking.”

The In re Jevic Holding Corp. chapter 11 case continues to make news.  The case is likely best remembered for the 2017 Supreme Court decision holding that the distribution scheme in a structured dismissal of a Chapter 11 case cannot violate the absolute priority rule.  The case has since been converted to Chapter 7, and in its most recent development, the Bankruptcy Court in Delaware barred the Chapter 7 trustee from stepping into the shoes of either the former unsecured creditors’ committee or the debtor due to the language in the Final Debtor In Possession Order.

Chapter 7 trustees have the power to pursue claims in the name of debtors, but such power does not apply if the debtor bars itself and its successors from asserting such claims.  However, a trustee does not have a right to take over an avoidance claim brought by a creditors’ committee unless the action being pursued is derivative of the debtor’s rights.

In Jevic, the Chapter 7 trustee filed a motion to be substituted as plaintiff for the Creditors’ Committee that had been appointed in the Chapter 11 case, and which filed an adversary action against certain creditors of the debtor known as the “Lender Group,” before the case converted to Chapter 7 and the Creditors’ Committee was dissolved.  As the Court noted, the “terms of the financing order are paramount in [the] analysis” as to the trustee’s rights.  08-11006-BLS, Doc. 1914, May 5, 2021, at 14.  In Jevic, the Court found that the language of the Final DIP Order prevented the trustee from being substituted as plaintiff in place of the Creditors’ Committee and from exercising its avoidance powers against the Lender Group based on the Debtor’s rights.

The language of the Final DIP Order was specific regarding who could assert a challenge and the timeframe in which a challenge could be asserted.  While any party could assert a challenge no later than 75 days of the Petition Date, only the Creditors’ Committee could assert an action no later than 75 days after the appointment of the Committee.  By the time the Chapter 7 trustee was appointed, it was well past 75 days from the Petition Date, and the Final DIP Order did not provide that a Chapter 7 Trustee could succeed to the rights of the Creditors’ Committee.  Most importantly, the Order stated that “[t]he stipulations and admissions contained in this Final Order shall be binding upon the Debtors and any successor thereto (including without limitation any Chapter 7 or Chapter 11 trustee appointed or elected for any of the Debtors) in all circumstances.”  08-11006-BLS, Doc. 1914, May 5, 2021, at 11.  Based on this language the Debtor waived not only its rights, but also waived the right to challenges by any successor, specifically including a Chapter 7 trustee.  The Bankruptcy Court therefore ruled that the Chapter 7 trustee was unable to step into the shoes of the Debtor to pursue an adversary action against the Lender Group referenced in the Final DIP Order.

It is noted that the language at issue in this Final DIP Order is fairly standard language in financing orders.  Therefore, parties wishing to avoid this result in future cases should consider using alternative language which will allow a Chapter 7 Trustee to succeed in the place of a Creditors’ Committee and/or the debtor.  Absent language preserving the rights of potential successors, such as a Chapter 7 Trustee, the estate may lose the ability to pursue certain claims.

By Michael L. Temin and Martha B. Chovanes

 

In an issue of first impression, in In re Energy Future Holdings Corp., 2021 U.S. App. LEXIS 7400 (3d Cir. Mar. 15, 2021), the Third Circuit addressed the question whether an initial bidder whose break-up fee was disallowed could receive a portion of its costs as an administrative expense claim even if the ultimate sale price was below the amount of the initial bid?  The Third Circuit answered this question in the affirmative.

In Calpine Corp. v. O’Brien Env’t Energy, Inc. (In re O’Brien Env’t Energy, Inc.), 181 F.3d 527 (3d Cir. 1999), the Third Circuit concluded that break-up fees could be authorized under Bankruptcy Code § 503(b), which permits payment of post-petition administrative expenses, for “actual, necessary costs and expenses of preserving the estate,” to induce an initial bid.

The Facts:

NextEra entered into an agreement (the “Merger Agreement”) with the Debtors to purchase the Debtors’ interest in Oncor, a large electric and power distribution company, subject to PUCT approval.  The Merger Agreement provided for a termination fee of $275 million to be paid to NextEra if the Merger Agreement was terminated.  Ultimately, the Bankruptcy Court disallowed the payment of a termination fee if the  PUCT did not approve the merger as contemplated.

Eventually, the Debtors sold their interest in Oncor for $ 350 million less than the amount NextEra had agreed to pay. NextEra filed an administrative expense application pursuant to 503(b)(1)(A) to recover its out-of-pocket expenses and other costs incurred in its efforts to complete the transaction and obtain the requisite PUCT approval, for the period from execution of the Merger Agreement until notice of termination of the Merger Agreement.  The Bankruptcy Court and the District Court denied NextEra’s administrative expense application.

The Court’s Opinion:

On appeal, the Third Circuit found that the terms of the Merger Agreement did not preclude NextEra’s application for administrative expenses. The Court noted:

An administrative expense claim is entitled to priority under Section 503(b)(1)(A) if (1) there was a “post-petition transaction between the claimant and the estate,” and (2) those expenses yielded a “benefit to the estate.”

The Merger Agreement was a post-petition transaction. As noted by the Court,

“The word benefit’ . . . functions as ‘merely a way of testing whether a particular expense was truly ‘necessary’ to the estate:  If it was of no ‘benefit,’ it cannot have been ‘necessary’ within the meaning of § 503(b)(1)(A). ”

* * *

In O’Brien, we elucidated the concept of “benefit” under Section 503(b)(1)(A) in describing a framework for evaluating the possible beneficial acts that could justify a termination fee, e.g., (1) “promot[ing] more competitive bidding” by “inducing an initial bid” or “inducing a bid that otherwise would not have been made and without which bidding would have been limited”; and (2) “encourage[ing] a prospective bidder to do the due diligence” to “research the value of the debtor and convert that value to a dollar figure on which other bidders can rely . . . [which] increase[es] the likelihood that the price at which the debtor is sold will reflect its true worth.”

NextEra argued  that by (i) negotiating the Merger Agreement, (ii) settling objections with creditors and (iii) providing further due diligence, it created guideposts that directly facilitated the merger that ultimately took place.

The Court concluded,

With respect to the motion  to dismiss the question before us is not whether NextEra actually benefitted the estate, but whether it plausibly alleged that it did so.

On this basis, the Court reversed the lower courts’ dismissal of the motion for administrative expenses and remanded to give NextEra the opportunity to present facts relevant to its request for an administrative expense claim in its attempt to recoup some of its costs in the failed acquisition.

On April 6, 2021, J. Kate Stickles was sworn in as a United States Bankruptcy Judge for the District of Delaware. According to an Announcement issued by the Delaware Bankruptcy Court, Judge Stickles fills the seat vacated by former Judge Kevin J. Carey, who retired in 2019. With Judge Stickles’ appointment, the Delaware Bankruptcy Court now has seven total members on its bench. Judge Stickles has practiced in Wilmington, Delaware for 30 years and has been recognized as a leading bankruptcy practitioner in Chambers USA since 2010, Best Lawyers in America, and Best Lawyers Business Edition, 2017-2020.

The Delaware Bankruptcy Court is one of the busiest bankruptcy courts in the nation. In 2020, the Delaware Bankruptcy Court recorded 1,666 chapter 11 filings, surpassing all other bankruptcy courts’ chapter 11 totals. This high number of cases is due in large part to the impact of the Covid-19 pandemic. This historic number of cases before the then six-member Delaware bankruptcy bench added more to the judges’ case load who already handled the most cases per judge prior to the pandemic.   For comparison, in 2019, the Delaware Bankruptcy Court recorded only 611 chapter 11 filings.

With the addition of J. Kate Stickles, the Delaware Bankruptcy Court now has a seventh member to assist in managing its hectic caseload.

Stephanie Slater is a Law Clerk, based in the firm’s Wilmington, DE office.

Secured creditors have many choices when it comes to how to file a proof of claim in bankruptcies. Those choices should be weighed carefully, however, because certain choices can have important unexpected consequences that outlive the bankruptcy and affect a secured creditor’s subsequent rights in state court actions.

When a debtor files a bankruptcy in which proof of claims are allowed, secured creditors have four options. They can (1) disregard the bankruptcy proceedings and just rely on their security; (2) file a secured proof of claim with the bankruptcy court; (3) waive their security interest and declare their claim as unsecured through a proof of claim in the bankruptcy court; or (4) file a proof of claim declaring their security interest but also availing themselves on the general assets of the bankruptcy estate as to the unsecured balance.

Once a creditor elects one of these options, especially electing to share in distributions from the general assets of the bankruptcy estate as a wholly unsecured creditor, it may not necessarily change its position and later ask to be treated as a secured creditor. This is especially true when a secured creditor files an unsecured proof of claim in the bankruptcy and then attempts to recover as a secured creditor in a subsequent state court action or to receive insurance proceeds if the collateral is destroyed. In re Bailey, 664 F.3d 1026 (6th Cir. 2011); In re Taylor, 280 B.R. 711 (Bankr. S.D. Ala. 2001).

For example, in In Re Taylor, a mortgage lien holder filed an unsecured non-priority proof of claim in a Chapter 13 bankruptcy. When the Plan was completed, there was still a balloon payment due. Had the creditor filed the proof of claim as a secured claim, the lien would have survived the plan and discharge of the debtors. Because the creditor filed an unsecured proof of claim, it waived its secured status and the lien ceased to exist upon the completion of the plan payments, which essentially released the mortgage in state court.

Filing unsecured proof of claims will also effect a secured creditor’s lien priority in a state-court foreclosure action. Even though title searches do not always check for the treatment of secured claims in bankruptcy cases, secured creditors involved in state foreclosure actions should pay attention to how other secured creditors filed their proof of claims because it is possible that some state court liens are still on record with the Register of Deeds Office which were actually waived and/or released in a prior bankruptcy case.

This was the issue in a recent South Carolina state foreclosure action. In South State Bank v. Greer et. al, Civil Action Number 2019-CP-23-00720 (Mar. 25, 2021), the foreclosure sale of commercial property resulted in surplus funds. American Express National Bank (“AMEX”) had previously filed a state court judgment against the landowner, which was first in line in the state records office after the mortgage that was foreclosed. Clayton Tile Distributing Co., Inc. (“Clayton Tile”) had filed a judgment against the landowner, which was technically filed after AMEX’s judgment. During the landowner’s Chapter 7 bankruptcy, assets were declared. AMEX filed an unsecured proof of claim while Clayton Tile filed a secured proof of claim. The Master in Equity for Greenville County held that:

[T]his Court finds that any claim by AMEX to the surplus funds has been waived or abandoned. AMEX had notice of the existence of the foreclosure action through the schedules filed in the Bankruptcy by Cameron H. Greer in July of 2019. AMEX did not assert a lien claim against the subject property in its Proof of Claim filed in the Bankruptcy. Accordingly, AMEX waived any claim to the surplus funds by filing its claim in the Bankruptcy as unsecured. See In re Devey, 590 B.R. 706 (Bankr. D.S.C. 2018); see also In re Workman, 373 B.R. 460 (Bankr. D.S.C. 2007).
Id.

The courts have reasoned that when a secured creditor makes a deliberate choice to make a claim as an unsecured creditor in hopes of participating in the distributions of a bankruptcy estate, it waives its right to also seek collection from the collateral.  Therefore, the creditor cannot change its position from unsecured to secured when it discovers an unforeseen benefit in the collateral.

For these reasons, secured creditors should be thoughtful and deliberate when deciding whether how to file proofs of claims in bankruptcies.  And, in state court actions, competing (and seemingly junior creditors) should pay close attention to how competing secured creditors filed claims in intervening bankruptcies because priorities may have shifted.

Fox Rothschild Washington D.C. associate, Diana Lyn Curtis McGraw, published an article in TMA’s Journal of Corporate Renewal (April 2021) entitled “The Role of the Trustee in Chapter V Cases.  This article outlines some of the most important duties of a Subchapter V trustee and the trustee’s ability to retain counsel and other restructuring professionals.

Role of the Trustee in Subchapter V Cases (Journal of Corporate Renewal, April 2021)

The “COVID-19 Bankruptcy Relief Extension Act of 2021” was signed into law by President Biden on March 27, 2021, extending the key provisions of the COVID-19 Bankruptcy Relief Act which was enacted in the CARES Act for another year.

Section 1113 of the CARES Act, which temporarily amended bankruptcy law to assist individuals and businesses affected by the coronavirus pandemic on March 27, 2020, has been extended by the COVID-19 Bankruptcy Relief Extension Act of 2021 and includes the following provisions:

  • The business debt limit under subchapter V of the Small Business Reorganization Act (SBRA) is increased from $2,725,625 to $7.5 million for another year – until March 27, 2022. This allows small businesses with debts under a certain debt limit to file bankruptcy and reorganize more quickly and less expensively.

Subchapter V was enacted under the SBRA on February 19, 2020, just prior to the COVID-19 pandemic, as a subchapter to Chapter 11.  The purpose was to assist small business debtors in reorganization by reducing expenses and making it faster and easier to file bankruptcy.  Subchapter V is available to a person or entity engaged in commercial business activity with non-contingent liquidated secured and unsecured debts as of the date of the petition filing of originally not more than $2,725,625, in which the majority of such debts have arisen from commercial or business activities of the debtor.

  • The definition of “income” under section 1325(b)(2) for purposes of filing bankruptcy is temporarily amended to exclude coronavirus-related payments received from the federal government until March 27, 2022.
  • The definition of “income” under section 1325(b)(2) for purposes of filing bankruptcy is temporarily amended to exclude coronavirus-related payments received from the federal government until March 27, 2022.
  • In a chapter 13 plan, disposable income shall not include coronavirus-related payments.
  • In a chapter 13, individuals and families who are experiencing material hardships due to the coronavirus pandemic may seek modifications to their plans, including seeking to extend the plan for up to seven years from date of the initial plan payment.

These provisions will sunset, or expire, on March 26, 2022, unless extended again.

When the Bankruptcy Code was first enacted in 1978, student loan debt could be discharged either after the passage of five years since the repayment obligation began, or if repayment would impose an undue hardship on the debtor or his/her dependents.  In 1990, the five-year waiting period was extended to seven years, and then in 1998, the Bankruptcy Code was amended to eliminate the waiting period altogether, leaving establishing undue hardship as the only means to discharge student loan debt as set forth in section 523(a)(8) of the Bankruptcy Code.

In assessing whether student loan debt may be discharged as an “undue hardship” under section 523(a)(8), the majority of courts follow the three-part test created by the Second Circuit in Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir. 1987).  The “Brunner Test” provides that student loan debt can be discharged if the debtor establishes by a preponderance of the evidence that:

  1. 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. Additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period; and
  3. She has made good faith efforts to repay the loans.

In application, the Brunner Test has largely proven to be a difficult burden for debtors to overcome, with discharge of student loan debt often granted only to debtors who have demonstrated dire circumstances impeding their ability to repay the debt in both the present and for the foreseeable future.  Some have termed this a “certainty of hopelessness” standard.

In recent years, however, some courts have more flexibly applied the Brunner Test to at least allow for partial discharge of student loan debt.  For instance, in 2018, a bankruptcy court opinion in New Jersey determined that based on the debtor’s monthly surplus income, it was appropriate to discharge the debtor’s student loan obligations maturing before June 2037, while preserving obligations maturing after that date.  As a result, the debtor’s monthly student loan bill decreased from $2,609.24 to $414.26.  See Hunter v. New Jersey Higher Educ. Student Assistance Auth., adv. pro, no. 15-02052-JKS (Bankr. D.N.J. April 27, 2018).  In a similar decision a few months later, a Wisconsin bankruptcy court allowed for a partial student loan debt discharge reducing the debtor’s monthly student loan repayment obligation from $694 to $208.  See Manion v. Modeen, adv. pro. no. 17-00071-cjf (Bankr. W.D. Wis. June 8, 2018).

In a January 2020 opinion authored by Chief Bankruptcy Judge Cecelia Morris of the Southern District of New York, a debtor’s $221,385 student loan debt was entirely discharged as an undue hardship.  Chief Judge Morris opined that the Brunner Test had been warped over time, subsuming the “certainty of hopelessness” standard that was more punitive than the original design of the Brunner Test.  See Rosenberg v. N.Y. State Higher Educ. Servs. Corp., 610 B.R. 454 (Bankr. S.D.N.Y. 2020).  This decision, occurring within the Second Circuit and the high profile Southern District of New York, coupled with other recent decisions allowing for partial discharge of student loan debt, as well as the economic hardships resulting from the COVID-19 pandemic, fueled speculation that debtors may increasingly bring adversary proceedings to discharge student loan debt in the hope of finding an emerging trend of judicial flexibility in applying the Brunner Test.

For those hoping for potential daylight in discharging student loan debt, the Second Circuit, however, demonstrated earlier this month that it is not inclined to revisit the form of the Brunner Test at this time.  See In re Tingling, 2021 WL 922448 (2d Cir. March 11, 2021).  In particular, the debtor, aligning with Chief Judge Morris’ view, argued that the Brunner Test had become too onerous a burden for debtors to satisfy.  The Second Circuit, however, reaffirmed the elements of the Brunner Test that it adopted nearly 25 years earlier, noting that it “reflects the Section 523(a)(8) statutory scheme exhibiting ‘clear congressional intent … to make the discharge of student loans more difficult than that of other nonexcepted debt…”  The Second Circuit then affirmed the lower courts’ findings that the debtor failed to establish undue hardship.

The Second Circuit’s recent pronouncement has made clear that any large scale relief in bankruptcy for student loan debt will likely be contingent on Congressional action.