Mark W. Tetzlaff v. Educational Credit Management

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3702
MARK WARREN TETZLAFF,
Plaintiff-Appellant,
v.
EDUCATIONAL CREDIT MANAGEMENT CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 14-cv-767 — Lynn S. Adelman, Judge.
____________________
ARGUED APRIL 22, 2015 — DECIDED JULY 22, 2015
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Mark Tetzlaff currently owes ap-
proximately $260,000 in student loan debt, which is guaran-
teed by Educational Credit Management Corporation. When
Tetzlaff filed for Chapter 7 bankruptcy in 2012, he sought to
have this debt discharged, claiming that repayment consti-
tuted an “undue hardship” under 11 U.S.C. § 523(a)(8). After
a trial, the bankruptcy court held that Tetzlaff’s student debt
could not be discharged. The United States District Court for
2 No. 14-3702
the Eastern District of Wisconsin affirmed. We, in turn, af-
firm the district court.
I. Background
Mark Tetzlaff is fifty-six years old and lives in Waukesha,
Wisconsin with his eighty-five-year-old mother; they both
subsist on the income from her Social Security payments.
Tetzlaff is divorced, has no children, and is currently unem-
ployed. From the mid-1990s until 2005, Tetzlaff pursued a
Masters in Business Administration from Marquette Univer-
sity, as well as a law degree from Florida Coastal School of
Law (“Florida Coastal”). 1 Most relevant to this appeal, Tetz-
laff took out various federally guaranteed student loans to
finance his graduate education. 2 In 2004, Tetzlaff consolidat-
ed his student loan debt, and Educational Credit Manage-
ment Corporation (“Educational Credit”) is now the guaran-
tor for the outstanding loan amount.
Tetzlaff has been unsuccessful at passing a state bar exam
to date (although he has made two attempts). Prior to at-
tending graduate school, Tetzlaff worked as a financial advi-
sor, an employee-benefits consultant, an insurance salesman,
and a stock broker. Over the years, Tetzlaff has struggled
with depression and alcohol abuse; he has also been in-
volved in domestic disputes. Tetzlaff has several misde-
1Tetzlaff also attended DePaul University College of Law, but was dis-
missed from the program without a degree.
2 Tetzlaff financed his education at Florida Coastal directly with the
school. Tetzlaff’s Florida Coastal debt was not included in this discharge
action. However, as we will explain later, Tetzlaff argues that payments
made to Florida Coastal should influence our analysis of his good faith
efforts to pay the student loan debt at issue in this action for discharge.
No. 14-3702 3
meanor convictions, including convictions for disorderly
conduct and intimidating a victim. He claims that all of these
factors combined make it very difficult for him to secure
employment.
In February 2012, Tetzlaff filed for Chapter 7 bankruptcy
in the United States Bankruptcy Court for the Eastern Dis-
trict of Wisconsin. At the time, Tetzlaff owed approximately
$260,000 in student loan debt, which was guaranteed by Ed-
ucational Credit. In July 2012, Tetzlaff filed an adversary
complaint seeking to discharge his student loan debt; the
complaint named two financial institutions (who are not
parties to this appeal) as defendants. Educational Credit
subsequently filed a motion to substitute itself as a real party
of interest, and the bankruptcy court granted this motion.
The bankruptcy court held a trial in May 2014 to deter-
mine whether Tetzlaff was eligible to discharge his student
loans. The court determined that Tetzlaff failed to show that
repaying his student loans would constitute an “undue
hardship,” and thus found that Tetzlaff could not discharge
them. The United States District Court for the Eastern Dis-
trict of Wisconsin affirmed. Tetzlaff appealed.
II. Discussion
Student loans are generally not dischargeable in bank-
ruptcy unless the debtor proves that excluding the loans
from discharge “would impose an undue hardship on the
debtor.” 11 U.S.C. § 523(a)(8). To determine which situations
constitute an “undue hardship,” we have adopted the Brun-
ner test for student loan discharge proceedings, which re-
quires a debtor to show that:
4 No. 14-3702
(1) [he] cannot maintain, based on current in-
come and expenses, a “minimal” standard of
living for himself and his dependents if forced
to repay [his] 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) [he] made good faith efforts to repay the
loans.
In re Roberson, 999 F.2d 1132, 1135 (7th Cir. 1993) (citing
Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395,
396 (2d Cir. 1987)). A debtor must satisfy each element of the
Brunner test in order to have his loans discharged. Id. at
1135–36. In this case, the bankruptcy court found that Tetz-
laff met the first element of the Brunner test, but that he
failed to meet the second two. Educational Credit does not
challenge the bankruptcy court’s analysis of the first Brunner
prong. Thus, we accept for purposes of our analysis that
Tetzlaff meets the first Brunner requirement, and we proceed
to examine the remaining elements: the “additional circum-
stances” prong and the “good faith” prong. The bankruptcy
court found that neither element fell in Tetzlaff’s favor.
We review the factual findings of the bankruptcy court
for clear error. Id. at 1137. In Krieger v. Educational Credit
Management Corp., we held that the additional circumstances
prong represents a “factual finding,” and thus is only re-
versible if shown to be clearly erroneous. 713 F.3d 882, 884
(7th Cir. 2013). In analyzing the good faith prong, we held
that this determination “combines a state of mind (a fact)
No. 14-3702 5
with a legal characterization (a mixed question of law and
fact).” Id. While we acknowledged in Krieger that there may
be circumstances in which the “only real dispute is legal”—
in which case our review would be less deferential—we rec-
ognized that the good faith analysis is “a predominantly fac-
tual understanding” and that the “undue hardship” inquiry
as a whole is “a case-specific, fact-dominated standard,
which implies deferential appellate review.” Id. With such
deference in mind, we find that the bankruptcy court’s con-
clusions on the additional circumstances prong and the good
faith prong must both be affirmed.
A. Additional Circumstances
The second prong of the Brunner test contemplates
whether “additional circumstances exist indicating that [the
inability to pay] is likely to persist for a significant portion of
the repayment period … .” Roberson, 999 F.2d at 1135. We
have noted that “the dischargeability of student loans
should be based upon the certainty of hopelessness, not
simply a present inability to fulfill financial commitment.”
Id. at 1136 (citing In re Briscoe, 16 B.R. 128, 131 (Bankr.
S.D.N.Y. 1981)). While in Krieger we noted that the “certainty
of hopelessness” standard “sounds more restrictive than the
statutory ‘undue hardship’ [standard]” we also noted that “a
judge asked to apply a multi-factor standard interpreting an
open-ended statute necessarily has latitude; the more vague
the standard, the harder it is to find error in its application.”
713 F.3d at 885. Here, the bankruptcy court found that Tetz-
laff’s financial situation has the ability to improve given that
“he has an MBA, is a good writer, is intelligent, and family
issues are largely over.” The court also concluded that “Tetz-
laff is not mentally ill and is able to earn a living.” On the
6 No. 14-3702
topic of Tetzlaff’s mental health, the court mentioned the tes-
timony of Dr. Marc Ackerman—a forensic psychologist
hired by Educational Credit—and Dr. Amy Gurka—
Tetzlaff’s treating psychologist. The bankruptcy court noted
that Dr. Gurka diagnosed Tetzlaff with Narcissistic Personal-
ity disorder, but that Tetzlaff’s “anxiety and depression do
not reach clinical levels.” The court also noted that tests per-
formed by Dr. Ackerman indicated that Tetzlaff “scored
very high on several malingering scales,” indicating that
Tetzlaff was perhaps feigning his psychological symptoms.
On these facts, the bankruptcy court’s analysis of the ad-
ditional circumstances prong was not clearly erroneous.
Given Tetzlaff’s academic degrees, prior work experience,
and age, we agree with the bankruptcy court that he is capa-
ble of earning a living. (In fact, Tetzlaff’s capable pro se rep-
resentation in this case is, in our opinion, an indicator of his
marketable job skills.) While Tetzlaff references obstacles re-
lated to his mental health, testimony presented to the bank-
ruptcy court indicates that he does not suffer from clinical
levels of anxiety or depression, and further indicates that
Tetzlaff may, in fact, be exaggerating his symptoms. As we
stated in Roberson, “undue hardship encompasses a notion
that the debtor may not willfully or negligently cause his
own default, but rather his condition must result from fac-
tors beyond his reasonable control.” 999 F.2d at 1136 (cita-
tion and internal quotation marks omitted).
On appeal, Tetzlaff notes that the bankruptcy court did
not permit him to present the testimony of two experts that
would have helped his case, particularly on the topic of his
future ability to secure employment and earn a living. Prior
to trial, the bankruptcy court excluded the proposed testi-
No. 14-3702 7
mony of: (1) a forensic psychologist who would have testi-
fied that Tetzlaff had memory problems that would likely
prohibit him from ever passing a bar exam; and (2) a voca-
tional counselor who would have testified that Tetzlaff was
unlikely to find employment paying more than $31,000 to
$37,000 per year. The bankruptcy court excluded this testi-
mony due to Tetzlaff’s late disclosure of the experts. The
bankruptcy court previously granted three extensions of the
court’s pretrial deadline to disclose experts, such that Tetz-
laff had until August 2, 2013 to do so. On April 10, 2014,
Tetzlaff filed an emergency motion seeking permission to
disclose the additional experts, and the bankruptcy court
denied the motion. The district court affirmed, noting that
under Federal Rule of Civil Procedure 16(b)(4), a pretrial
scheduling deadline may only be modified for “good cause.”
Tetzlaff explained that it did not occur to him to seek testi-
mony on memory loss until he failed two exams needed to
work in the financial industry in November 2013 (several
months after the expert disclosure deadline had passed). For
the next six months, Tetzlaff apparently gathered the
“memory evidence” that he wished to present at trial, and
then filed the emergency motion with the bankruptcy court
regarding the two additional experts. However, even assum-
ing that Tetzlaff could not have recognized the need for
“memory experts” prior to November 2013, Tetzlaff waited
another six months to raise the issue with the bankruptcy
court (and this was after the deadline for expert disclosure
had been thrice extended). We therefore agree with the dis-
trict court that Tetzlaff did not show good cause for the late-
ness of his expert disclosure, and thus we reject Tetzlaff’s
argument that the bankruptcy court erred in excluding his
two proposed experts.
8 No. 14-3702
B. Good Faith
A debtor’s good faith efforts to repay his student loans
are measured by his ability to “obtain employment, maxim-
ize income, and minimize expenses.” Roberson, 999 F.2d at
1136. Good faith is also assessed by the debtor’s demonstrat-
ed efforts to pay off his existing loans. In Krieger, we recog-
nized that the question of good faith under Brunner neces-
sarily implicates the debtor’s past efforts to pay down the
debt at issue (rather than a resolve to pay the debt in the fu-
ture, which directly conflicts with the very nature of a loan
discharge proceeding). 713 F.3d at 884. The bankruptcy court
noted that “[Tetzlaff] repaid much of the loan to Florida
Coastal Law School, but nothing on the loan at issue in this
adversary proceeding.” Drawing on these facts, the bank-
ruptcy court concluded that, as with the additional circum-
stances prong, Tetzlaff did not meet Brunner’s good faith re-
quirement.
Tetzlaff argues that the bankruptcy court erred in refus-
ing to consider his payments to Florida Coastal (which are
not included in the instant discharge action) in concluding
that he had not made a good faith effort to repay the debt
held by Educational Credit. However, Tetzlaff’s position is
without legal support. Educational Credit points to In re
Roberta Spence, 541 F.3d 538, 545 (4th Cir. 2008), in which a
debtor also sought to discharge student loan debt (also held
by Educational Credit) and argued that her attempt to pay
Perkins Loans should qualify as a “good faith” effort to re-
pay her Educational Credit debt. The Fourth Circuit noted
that “[Spence’s] choice to repay some of the Perkins Loans
does not demonstrate a good faith effort to repay the student
loans held by [Educational Credit].” Id.; see also In re Cun-
No. 14-3702 9
ningham, No. 04-2636, 2006 WL 1133923, at *4 (N.D. W.Va.
Apr. 26, 2006) (holding that “there is no authority that sug-
gests that a debtor who pays down one loan while neglect-
ing another acts in good faith”) Tetzlaff has not identified
any competing authority. Additionally, Tetzlaff’s argument
conflicts with the very nature of the undue hardship analy-
sis, which is an inquiry about the ability of a debtor to pay
student loan debt subject to a discharge action. See 11 U.S.C.
§ 523(a)(8). The bankruptcy court was not required to con-
sider Tetzlaff’s payments to Florida Coastal as evidence of a
good faith effort to repay Educational Credit, as his Florida
Coastal debt was not included in the discharge action. Fur-
thermore, as the bankruptcy court noted, it seems that Tetz-
laff repaid his debt to Florida Coastal largely because he
needed the school’s cooperation in releasing his diploma
and transcript. Thus, Tetzlaff was motivated by certain in-
centives to pay down his Florida Coastal debt that do not
apply to the repayment of his debt held by Educational
Credit. Therefore, we decline to hold that the bankruptcy
court erred when it refused to consider the repayment of
debt not included in the loan discharge proceeding before it
in making a determination of good faith under the Brunner
test. Further, we affirm the bankruptcy court’s conclusion
that Tetzlaff has not made a good faith effort to pay down
his student loan debt.
III. Conclusion
Accordingly, we AFFIRM.