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Cir. 1987), is obsolete, amici point out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