In Re Dennis Leroy Saxman, Debtor, Dennis Leroy Saxman v. Educational Credit Management Corporation, and Department of Education

dissenting:

While I appreciate the majority’s analysis, I must respectfully dissent from its decision to assume jurisdiction over this interlocutory appeal. The appeal should be dismissed.

The majority cannot be faulted for following circuit cases regarding appellate jurisdiction in this case. Some of our court’s interpretations of 28 U.S.C. § 158 (d) justifies a “pragmatic approach to finality” which allows many interlocutory orders to slip through the gates to appellate review. Despite the plain language of section 158(d), which allows us jurisdiction to hear appeals “from all final decisions, judgments, orders, and decrees” entered by a district court sitting as an appellate tribunal in bankruptcy, we have interpreted these words more than expansively to include interlocutory, non-final remand orders like that at issue in this case. N. Slope Borough v. Barstow (In re MarkAir, Inc.), 308 F.3d 1057 , 1060 (9th Cir.2002); DeMarah v. United States (In re DeMarah), 62 F.3d 1248, 1250 (9th Cir.1995); Bonner Mall P’ship v. U.S. Bancorp Mortgage Co. (In re Bonner Mall P’Ship), 2 F.3d 899, 903-04 (9th Cir.1993); Vylene Enters. v. Naugles, Inc., 968 F.2d 887, 894-95 (9th Cir.1992);…

Opinion by Circuit Judge TASHIMA; Dissenting opinion by Senior Circuit Judge WALLACE.

OPINION

This case presents the question of whether an educational loan may be partially discharged consistent with 11 U.S.C. § 523 (a)(8) of the Bankruptcy Code. We conclude that bankruptcy courts may partially discharge student debt pursuant to their equitable authority under 11 U.S.C. § 105 (a).

BACKGROUND

On September 27, 1999, Appellee Dennis Saxman sought to discharge several of his student loans in bankruptcy on the ground that paying them off would cause him an undue hardship within the meaning of 11 U.S.C. § 523 (a)(8). This case concerns two of those loans: one held by the United States Department of Education and a much larger consolidated loan held by Appellant Educational Credit Management Corporation (“ECMC”).

The bankruptcy court found that Sax-man would not suffer undue hardship if he was made to repay the $4,764 to the Department of Education, but that he would *1171 suffer undue hardship if he were held to his ECMC debt of $83,927. In support of its finding, the court considered that Sax-man had a net income of $2,900 per month, lived a “very frugal lifestyle,” and had…

325 F.3d 1168 In re Dennis Leroy SAXMAN, Debtor, Dennis Leroy Saxman, Plaintiff-Appellee, v. Educational Credit Management Corporation, Defendant-Appellant, and Department of Education, Defendant. No. 01-35620. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 8, 2003. Filed April 14, 2003. COPYRIGHT MATERIAL OMITTED Daniel Fisher, St. Paul, MN, for the defendant-appellant. Dennis L. Saxman, Seattle, WA, pro se plaintiff-appellee. Jeffrica Jenkins Lee, Department of Justice, Civil Division, Washington, DC, for amicus curiae United States Department of Education. Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, District Judge, Presiding. D.C. No. CV 00-1609 BJR. Before WALLACE, TROTT, and TASHIMA, Circuit Judges. Opinion by Circuit Judge TASHIMA; Dissenting opinion by Senior Circuit Judge WALLACE. OPINION TASHIMA, Circuit Judge. 1 This case presents the question of whether an educational loan may be partially discharged consistent with 11 U.S.C. § 523 (a)(8) of the Bankruptcy Code. We conclude that bankruptcy courts may partially discharge student debt pursuant to their equitable authority…