The Debtor/Plaintiff filed a chapter 7 petition and, shortly after, he filed this adversary proceeding seeking a determination of dischargeability under 11 U.S.C. § 523(a)(8). He then received a discharge.
The Court scheduled a trial on the adversary and ordered the parties to file all exhibits and witness lists at least 14 days before the trial. Neither party filed a copy of the alleged loan document, and the opportunity to submit evidence expired. As neither party offered evidence of any loan document or that Plaintiff in fact owed a debt to Defendant, the Court ordered the parties to submit briefs on the burden of proof. The parties did so, and the Court took the matter under advisement.
In 2017, Plaintiff filed a chapter 7 petition and received a discharge. Plaintiff is elderly, unemployed, and subsists on income from his pension and Social Security in the amount of $4,186.36 per month. He scheduled monthly expenses of $3,757.70, including payment on the loan at issue.
Plaintiff’s social security income is subject to an involuntary garnishment in the amount of $218.70 per month imposed by the Department of Education and Defendant Educational Credit Management Corporation (“Defendant”). Defendant claims Plaintiff signed a student loan on behalf of his daughter and that the loan survived the discharge. Debtor denies signing any student loans, either for himself or for his daughter. He maintains he has never agreed to pay a student loan and that if his signature appears on a student loan document, then it is a forgery.
As noted, the Court scheduled a trial on Plaintiff’s section 523(a)(8) claim. Neither party filed a copy of the student loan documents. The opportunity to file evidence has closed. The Court ordered briefs on the narrow question of who bore the evidentiary burden of establishing the existence of a student loan under 523(a)(8).
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