21. The Oliver court explained that while «Congress ha[d] progressively expanded the reach of § 523(a)(8)» with BAPCPA to exclude more student loans from discharge, it had not added the language of § 523(a)(8)(B) simply to exclude from discharge any and every debt with a connection to education, regardless of how tenuous the connection might be. Id. at 623. Id. Oliver gives weight to the retention of these six words post-BAPCPA and says courts cannot simply jump to the definition of § 221(d)(1) in deciding if a debt is nondischargeable. Id. at 622-23. The Oliver court expounded:
This court is difficult-pushed to get a situation one to makes reference to just what establishes the latest «educational» character of a loan below § 523(a)(8)(B)
«[A]new york most other academic financing» try an effective «set,» as well as all types of loans which can slip thereunder, only the «subset» off «qualified knowledge financing» drops for the exception to this rule to produce. Said one other way, there can be a-two-tiered study: very first, whether an obligations is actually an educational «loan» and you may, when it is, up coming whether or not it match the interior Money Code concept of «qualified education loan.»
The outcome legislation investigating «educational» loans not as much as § 523(a)(8) usually examines how youngsters invest mortgage money otherwise assesses integration fund, sought after because of the consumers, hoping off protecting greatest loan terms and conditions otherwise pricing
22. Here, the Jubers argue that § 523(a)(8)(B) and § 221(d) apply to the Oral Loan because it was indebtedness used to refinance a qualified education loan pursuant to § 221(d). The Jubers focus on the fact that their extension of credit to the Debtor appears to meet the § 221(d) requirements. The court, however, does not need to decide if the Oral Loan was a refinance of the Three Original Loans if the Oral Loan, itself, does not overcome the threshold language of § 523(a)(8)(B) as outlined by the Oliver court.
23. The issue of whether the Oral Loan is an «educational loan» is, in and of itself, a two-part question: Was this a loan, and if so, was it an «educational» loan? Find Alibatya v. Nyc College or university (In re Alibatya), 178 B.R. 335, 338 (Bankr. E.D.N.Y. 1995) («The term ‘educational’ is merely an adjective describing ‘loan.’ «). The Bankruptcy Code does not include a definition of an «educational loan.» Gorosh v. Posner (Inside lso are Posner), 434 B.R. 800, 803 (Bankr. E.D. Mich. 2010). The parties do not dispute that the funds provided by the Jubers to pay off the Three Original Loans constituted a loan. Therefore, the pertinent issue is whether the loan was educational in character and nature. «[T]he character of a loan should dictate how it is treated.» United College student Help Funds v. Flint (In re also Flint), 238 B.R. 676, 680 (E.D. Mich. 1999) (citing Santa https://servicecashadvance.com/payday-loans-wv/kingwood/ Fe Med. Servs., Inc. v. Segal (For the lso are Segal), 57 F.3d 342, 349 (3d Cir. 1995)); see Lapusan v. Educ. Credit Mgmt. Corp. (In the lso are Lapusan), 244 B.R. 423, 424 (Bankr. S.D. Ill. 2000) (citing Flint, 238 B.R. at 680-81); George Arizona Univ. v. Pelzman (Within the lso are Pelzman), 233 B.R. 575, 580 (Bankr. D.D.C. 1999) (recognizing that a loan was an educational loan when it was «intended to allow the debtor to meet those expenses incidental to her obtaining an education» and was «plainly designed to facilitate the debtor’s education»).
24. The nature of funds advanced to students is usually challenged under § 523(a)(8)(A), not § 523(a)(8)(B). See, e.g., Busson-Sokolik v. Milwaukee College or university away from Eng’g (During the re Sokolik), 635 F.3d 261, 266 (7th Cir. 2011); Brown v. Rust (Inside re also Rust) 510 B.R. 562, 567 (Bankr. E.D. Ky. 2014). See generally Dufrane v. Navient Sols., Inc. (Within the re also Dufrane), 566 B.R. 28, 36-39 (Bankr. C.D. Cal. 2017). This case is different.
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