Plaintiff/Debtor Loses Motion In Limine to Exclude Student Loan Promissory Note since NCSLT Witness Testimony May be able to Authenticate the Full Document

Plaintiff/Debtor Loses Motion In Limine to Exclude Student Loan Promissory Note since NCSLT Witness Testimony May be able to Authenticate the Full Document

In or around 2004, Debtor borrowed approximately $23,000 from Bank of America; the current loan balance is approximately $28,000. In 2016, Debtor filed a voluntary chapter 7 petition and confirmed the existence of the debt on her schedules of unsecured claims. She also commenced this adversary proceeding against “National Collegiate Trust” as the purported assignee of the debt, seeking a declaratory judgment that the debt should be discharged. Subsequently, with Debtor’s consent, the Court granted a request by The National Collegiate Student Loan Trust 2004-2 (the “Loan Trust”) to intervene as the real party in interest.

Debtor contends that the loan does not qualify for the exceptions for discharge that are set forth in section 528(a)(8)(A) of the Bankruptcy Code, or alternatively that the debt should be discharged because Debtor would otherwise experience an “undue hardship.” 11 U.S.C. § 523(a)(8). The Loan Trust argues that the loan is not dischargeable under 11 U.S.C. §§ 523(a)(8)(A)(i) because it is an educational loan guaranteed by a nonprofit institution. Joint Proposed Pretrial Order at page 2. In addition, the Loan Trust claims that the loan is not dischargeable under 11 U.S.C. § 523(a)(8)(A)(ii)) because it is an obligation to repay funds received as an educational benefit. Id. The Loan Trust also disputes Debtor’s contention that a failure to discharge the debt would lead Debtor to experience an “undue hardship” within the meaning of 11 U.S.C. § 523(a)(8).

Debtor admits that she owes the loan to “National Collegiate Trust,” whom she sued in this adversary proceeding for a declaratory judgment. She also listed “NCT” as an unsecured creditor.

Debtor has filed two pretrial motions. First, she seeks to exclude from evidence her purported agreement with Bank of America, which has been offered as Loan Trust’s Exhibit F. Her second motion  asks the Court to hold that Section 523(a)(8)(A)(ii) of the Bankruptcy Code does not apply to the loan as a matter of law.

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