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In Re: Roger John Traversa v. Educational Credit Management Corporation


October 28, 2011


Appeal from a judgment of the United States District Court for the District of Connecticut (Janet C. Hall, Judge).


Roger John Traversa v. Educational Credit Management Corporation


Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel 2 Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 28th day 3 of October, two thousand eleven.



7 Plaintiff-appellant Roger John Traversa, an attorney appearing pro se, brought this action in the 8 Bankruptcy Court for the District of Connecticut (Lorraine M. Weil, Chief Judge), seeking discharge of 9 his student loan debt. Following trial, the Bankruptcy Court held that Traversa was not entitled to 10 discharge his student loan debt pursuant to 11 U.S.C. § 523(a)(8) and denied Traversa's various motions 11 to seal portions of the record pursuant to 11 U.S.C. § 107(b) and (c). Traversa appealed, and the District 12 Court affirmed the Bankruptcy Court decision on November 5, 2010. This appeal followed.

We 13 assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues 14 on appeal. 15 16 "An appeal from a district court's review of a bankruptcy court ruling is subject to plenary 17 review." In re Halstead Energy Corp., 367 F.3d 110, 113 (2d Cir. 2004). "We accept [a] bankruptcy court's 18 findings of fact unless clearly erroneous, but review its conclusions of law de novo." Id. at 114.

We 19 review the discretionary rulings of a bankruptcy court for abuse of discretion. In re Dana Corp., 574 F.3d 20 129, 145 (2d Cir. 2009); see Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining "abuse of 21 discretion"). 22 23 Whether a debtor may discharge his student loans in bankruptcy proceedings is governed by 11 24 U.S.C. § 523, which provides in relevant part:

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) 27 of this title does not discharge an individual debtor from any debt 28 29 (8) unless excepting such debt from discharge under this paragraph 30 would impose an undue hardship on the debtor and the 31 debtor's dependents, for-- 32 (A) (i) an educational benefit overpayment or loan made, insured, or 33 guaranteed by a governmental unit, or made under any 34 program funded in whole or in part by a governmental unit 35 or nonprofit institution; or 36 (ii) an obligation to repay funds received as an educational 37 benefit, scholarship, or stipend; or 38 (B) any other educational loan that is a qualified education loan, 39 as defined in section 221(d)(1) of the Internal Revenue Code 40 of 1986, incurred by a debtor who is an individual. 41 42 11 U.S.C. § 523(a) (emphasis added).

There is no dispute that Traversa's student loans, which amount to approximately $60,000, 2 qualify as presumptively non-dischargeable under § 523(a)(8). Accordingly, the primary issue on appeal 3 is whether Traversa would face an "undue hardship" if his loans were not discharged. 11 U.S.C. 4 § 523(a)(8).

To defeat the statutory presumption against a student loan discharge, a debtor who claims 7 "undue hardship" must demonstrate the following by a preponderance of the evidence:

(1) that the debtor cannot maintain, based on current income and 10 expenses, a 'minimal' standard of living for herself and her dependents 11 if forced to repay the loans; (2) that additional circumstances exist 12 indicating that this state of affairs is likely to persist for a significant 13 portion of the repayment period of the student loans; and (3) that the 14 debtor has made good faith efforts to repay the loans.

Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir. 1987) (per curiam);*fn1 see also 17 Grogan v. Garner, 498 U.S. 279, 291 (1991) (holding that "the standard of proof for the dischargeability 18 exceptions in 11 U.S.C. § 523(a) is the ordinary preponderance-of-the-evidence standard").

In this case, the Bankruptcy Court found that Traversa met the first Brunner prong based on his 21 testimony that he had been unemployed since December 2004, that he lived with his mother, and that 22 his only income consisted of approximately $1,577 in monthly Social Security benefits. The Bankruptcy 23 Court also found, however, that Traversa had not satisfied the second Brunner prong because there was 24 insufficient evidence that his medical conditions were "likely to persist for a significant portion of the 25 repayment period." Brunner, 831 F.2d at 396.

Because § 523(a)(8) exhibits a "clear congressional intent . . . to make the discharge of student 28 loans more difficult than that of other nonexcepted debt," we have required debtors seeking to 29 discharge student loans to provide evidence "not only of current inability to pay but also of additional, 30 exceptional circumstances, strongly suggestive of continuing inability to repay over an extended period 31 of time." Brunner, 831 F.2d at 396. In Brunner, we found that the second prong was not satisfied where 32 the debtor was not disabled or elderly, had no dependents, and "[n]o evidence was presented indicating 33 a total foreclosure of job prospects in her area of training." Id. at 396-97.

Here, the trial evidence established that Traversa was unemployed and receiving Social Security 36 benefits. Traversa testified that he suffered from depression, sleeping disorders, ADHD, and bipolar disorder, and that these conditions affected his ability to gain and maintain employment.

On cross- 2 examination, Traversa admitted that his treating nurse believed that the medication he was taking for 3 depression was effective, that the medications he was taking for his sleeping disorders worked 4 "moderately well," and that he had never received any documentation of his alleged bipolar disorder. 5 Traversa further testified that he had suffered from these conditions "throughout [his] life," including 6 when he was in college and law school and during his approximately seven years of consecutive 7 employment prior to law school. Traversa also testified inconsistently about why he lost one of his 8 post-law school jobs, asserting on direct examination that he was terminated because of his medical 9 condition, while admitting on cross-examination that he lost the job because of a "budget cut."

10 Although Traversa introduced a notice from the State of Connecticut Department of Social Services 11 referring to an initial agency determination that he was "unable to work long-term" and eligible for 12 benefits, those documents contained no factual or medical findings with respect to any disability.

14 Given Traversa's prior ability to work while suffering from the same medical conditions at issue 15 here, the inconsistencies in his trial testimony, and the fact that the sole piece of documentary evidence 16 in the trial record contained no information about his medical conditions, it was not error for the 17 Bankruptcy Court to conclude that Traversa had not carried his burden to prove that his alleged medical 18 conditions would render him unable "to repay [his loans] over an extended period of time." Brunner, 19 831 F.2d at 396.

With respect to Traversa's challenge to the denial of his various motions to seal the record, we 22 note that he has failed to identify the particular order or orders he seeks to challenge on appeal. 23 Nonetheless, an independent review of the record reveals no error in the orders disposing of his various 24 motions to seal. We therefore affirm for substantially the same reasons stated by the District Court.

We have considered Traversa's remaining arguments and find them to be without merit.


We reject all of Traversa's claims on appeal. Accordingly, the judgment of the District Court is AFFIRMED.


Catherine O'Hagan Wolfe, Clerk of Court

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