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Click here for the full text of this decision The court adopts the Brunner test for purposes of evaluating a 11 U.S.C. �523(a)(8) decision. FACTS:Over a period of years, Jonathon Gerhardt obtained over $77,000 in government-insured student loans. Gerhardt is a professional cellist. He subsequently defaulted on each loan owed to the U.S. government. In 1999, Gerhardt filed for Chapter 7 bankruptcy and thereafter filed an adversary proceeding seeking discharge of his student loans pursuant to 11 U.S.C. �523(a)(8). The bankruptcy court discharged Gerhardt’s student loans as causing undue hardship. On appeal, the district court reversed, holding that it would not be an undue hardship for Gerhardt to repay his student loans. HOLDING:Affirmed. This circuit has not explicitly articulated the appropriate test with which to evaluate the undue hardship determination. The 2nd U.S. Circuit Court of Appeals in Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir. 1987), crafted the most widely adopted test. To justify discharging the debtor’s student loans, the Brunner test requires a three-part showing: 1. that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for [himself] and [his] dependents if forced to repay the loans; 2. that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and 3. that the debtor has made good-faith efforts to repay the loans. Because the 2nd Circuit presented a workable approach to evaluating the “undue hardship” determination, this court expressly adopts the Brunner test for purposes of evaluating a �523(a)(8) decision. Under the first prong of the Brunner test, the bankruptcy court determined that Gerhardt could not maintain a minimal standard of living if forced to repay his student loans. Evidence was produced at trial that Gerhardt earned $1,680.47 per month as the principal cellist for the Louisiana Philharmonic Orchestra, including a small amount of supplemental income earned as a cello teacher for Tulane University. His monthly expenses, which included a health club membership and Internet access, averaged $1,829.39. The bankruptcy court’s factual findings are not clearly erroneous. Given that Gerhardt’s monthly expenses exceed his monthly income, he has no ability at the present time to maintain a minimal standard of living if forced to repay his loans. The second prong of the Brunner test asks if “additional circumstances exist indicating that this state of affairs is likely to persist [for a significant period of time].” “Additional circumstances” encompass “circumstances that impacted on the debtor’s future earning potential but which [were] either not present when the debtor[] applied for the loans or [have] since been exacerbated.” In Re: Roach, 288 B.R. 437 (Bankr. E.D. La. 2003). This second aspect of the test is meant to be “a demanding requirement.” In Re: Brightful, 267 F.3d 324 (3d Cir. 2001). Thus, proving that the debtor is “currently in financial straits” is not enough. Instead, the debtor must specifically prove “a total incapacity. . . in the future to pay [his] debts for reasons not within [his] control.” In Re: Faish, 72 F.3d 298 (3d Cir. 1995). Under the second prong of the test, the district court correctly concluded that Gerhardt has not established persistent undue hardship entitling him to discharge his student loans. Gerhardt holds a masters degree in music from the New England Conservatory of Music. He is about 43 years old, healthy, well educated and has no dependents, yet has repaid only $755 of his over $77,000 debt. During the LPO’s off seasons, Gerhardt has collected unemployment, but he has managed to attend the Colorado Music Festival. Although trial testimony tended to show that Gerhardt would likely not obtain a position at a higher-paying orchestra, he could obtain additional steady employment in a number of different arenas. For instance, he could attempt to teach full time, obtain night-school teaching jobs or even work as a music store clerk. Thus, no reasons out of Gerhardt’s control exist that perpetuate his inability to repay his student loans. In addition, nothing in the Bankruptcy Code suggests that a debtor may choose to work only in the field in which he was trained, obtain a low-paying job and then claim that it would be an undue hardship to repay his student loans. Under the facts presented by Gerhardt, it is difficult to imagine a professional orchestra musician who would not qualify for an undue hardship discharge, the court states. Accordingly, Gerhardt has failed to demonstrate the type of exceptional circumstances that are necessary in order to meet his burden under the second prong of Brunner. OPINION:Jones, J.; Reavley, Jones and Clement, JJ.

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