Mendoza

*662 MEMORANDUM *

Debtor Christian D. Mendoza appeals the judgement entered by the bankruptcy court on June 11, 2003 disallowing the discharge of his student loan debt. The Bankruptcy Appellate Panel (BAP) affirmed, agreeing with the bankruptcy court that Mendoza had not presented sufficient evidence of “additional circumstances” to indicate that his state of affairs could not improve. We review the bankruptcy court’s findings of fact for clear error and its application of the appropriate legal standard de novo. In re Rifino, 245 F.3d 1083 , 1086 (9th Cir.2001). We have jurisdiction pursuant to 28 U.S.C. § 158 (d)(1), and we reverse.

To be eligible for discharge of a student loan, a debtor must demonstrate that “excepting such debt from discharge ... will impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523 (a)(8). Undue hardship is demonstrated by a debtor who: (1) 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) shows that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the…

dissenting:

The bankruptcy court made plausible factual findings based on the record presented. See Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-74 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985) (“If the [bankruptcy] court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”). Dr. Fisher admitted on cross-examination that Mendoza may not have been taking a therapeutic dose of his medication during the time of his examination and that this would affect Mendoza’s condition. The bankruptcy court determined that this admission severely undercut Dr. Fisher’s testimony.

Because there is nothing in the record to leave the court with a definite and firm conviction that the bankruptcy court was clearly erroneous, these factual findings should be upheld. However, I would remand the case back to the bankruptcy court to allow it to readdress Mendoza’s claim in light of our companion decision in Educational Credit Management Corp. v. Nys The issue is not whether Mendoza’s situation is “hopeless” but…