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

October 28, 2011

IN RE: ROGER JOHN TRAVERSA, ROGER JOHN TRAVERSA,
DEBTOR-APPELLANT,
v.
EDUCATIONAL CREDIT MANAGEMENT CORPORATION, CREDITOR-APPELLEE.



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

10-4811-bk

Roger John Traversa v. Educational Credit Management Corporation

SUMMARY ORDER

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.

PRESENT: 6 7 JOSE A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges.

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 5 AND DECREED that the judgment of the District Court is AFFIRMED.

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 ...


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