Consumer Bankruptcy Journal Fall 2016 - Page 12

NACBA and the NCLC Seek Rejection of Brunner Test N ACBA and the NCLC have added their voices to an Eleventh Circuit student loan discharge case. Acosta Conniff v. ECMC, No. 16-12884 (11th Cir.). The amicus brief, filed August 22, begins with a direct attack on the Brunner, hardship test as straying too far from the plain language of section 523(a)(8) and from congressional intent to permit discharge of student loans under certain circumstances. In arguing that the four-part test set forth in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir. 1987), is obsolete, amici point out that Brunner came into existence at a time when, by statute, student loans could be automatically discharged five years after they became due. Brunner addressed the perceived problem of debtors seeking discharge of student loans almost as soon as they came due rather than waiting the five years. But given changes in bankruptcy law and the student loan industry that issue is no longer a problem as student loans are no longer automatically dischargeable after five years and, under current law, debtors typically live with student loan debt for decades. Also, since Brunner, student lenders have greater access to various collection methods, such as garnishment pursuant to the Higher Education Act, that were not available when Brunner was decided. Even if the court continues to apply Brunner, however, amici argue that application of the test must be reined in to conform to the text of section 523(a) (8) and the