Marchus v. Student Loans of N.D. (In re Marchus)

630 B.R. 91

IN RE: Debra Jean MARCHUS, Debtor.

Debra Jean Marchus, Plaintiff,

v.Student Loans of North Dakota, Defendant.

Bankruptcy No. 20-30357

Adversary No. 20-07017

United States Bankruptcy Court, D. North Dakota.

Signed May 18, 2021

Timothy P. Hill, Hill Law Office, Fargo, ND, for Plaintiff.

Meggi Ihland Pelton, Schweigert, Klemin & McBride, Bismarck, ND, for Defendant.

MEMORANDUM AND ORDER

SHON HASTINGS, JUDGE

On July 7, 2020, Plaintiff/Debtor Debra Jean Marchus filed this adversary proceeding seeking a determination that her student loan debt owed to Defendant Student Loans of North Dakota (SLND) is dischargeable under 11 U.S.C. § 523(a)(8). SLND filed an answer on July 30, 2020, denying that Debtor is entitled to the relief she requested.

The Court tried this case on March 3, 2021. This adversary action is a core proceeding under 28 U.S.C. § 157(b)(2)(I). The Court has jurisdiction under 28 U.S.C. §§ 157 and 1334, and it has authority to enter a final order in this matter. This opinion constitutes findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052.

I. Findings of Fact

A. Background and Education

Debtor will be 64 years old in June. She began her long educational journey in the fall of 1975 at North Dakota State University, where she attended classes for one semester. In January 1976, she began attending Interstate Business College (IBC). Debtor earned a general clerical "degree" from IBC in approximately 1977. After marrying and having two children, Debtor returned to IBC and earned a general business "degree" in 1980 or 1981.

Debtor divorced in 1986 and moved to Thief River Falls, Minnesota, to "restart my life." She enrolled at a community college in Thief River Falls to study nursing but stopped taking classes due to family "mishaps." At some point, she remarried but divorced a second time in 1997.

In September 2007, Debtor borrowed $14,535 from the Bank of North Dakota (BND) to pay educational expenses at Aakers Business College.¹ Doc. 22; SLND-201. SLND is the guarantor and current holder of the loan.² On her loan application, Debtor indicated that she did not believe she would meet the credit requirements and agreed to submit a credit application from a cosigner. SLND-201. Debtor's daughter cosigned for the loan. Debtor testified that she understood the loan process and her liability, but she did not realize that her daughter cosigned for the loan. Rather, she thought that her daughter merely provided a reference verifying that Debtor would be able to make the student loan payments.

Debtor testified that she enrolled at Aakers to pursue a degree in accounting. Debtor did not earn a degree from Aakers, however, because she "did not get along at all" with the instructor of a required class. She took the class several times but never completed the course because of their differences, and Debtor "had to stop" her education at Aakers.

Determined to get her college degree, Debtor enrolled in an online program through the University of Phoenix. Despite setbacks and interruptions, she earned an associate of arts degree in accounting in 2013.³ Debtor testified that it took her "four long years" to graduate "with great difficulty because of the computer aspect of it—it had changed so much."

B. Employment and Income History

Debtor's work history since 2007, when she incurred her student loan obligation to BND, includes:

• Desk clerk/auditor at a motel; $8.75/hour; April to October 2007

• Hardware associate at Walmart; $9.80/hour; September 2007 to June 2011 • Home health aide at Marshall County Group Homes; $10.05/hour; May 2012 to May 2013

• Office clerk for Experience Works; 2013-2014

• Receptionist/bookkeeper for Northwestern Homes; 2014

• Cashier at Home Depot; 2014-2015

• Receptionist/bookkeeper at Sahr Oil Co.; 2015

• Cashier at Walgreens; 2015-2016

• Menard's; 2017-2018

• Cashier and stocker at Dollar Tree; $9.25/hour; May 2018 to Fall 2019; and Spring 2020

• Stocker at Family Fare; $11.00/hour; September 2020 to present

Among these jobs, Debtor obtained full-time employment with only one employer—Marshall County Group Homes. Debtor testified she has tried to find full-time work since 2006, but no one will hire her.

At the time she was pursuing her degree from the University of Phoenix, and after she graduated, Debtor lived in Warren, Minnesota. She intended to use her degree to perform accounting work in a small office, but she found no jobs in her field in Warren, and she could not afford to move. Instead, she worked at part-time jobs at Kmart and Walmart. She did not pursue additional continuing education training because it was not available in Warren.

For three months in 2014, Debtor worked as a bookkeeper and secretary for Northwestern Homes. She testified that she was terminated from that job because she "could not get there on time because I lived 30 miles away and I have a sleeping disorder."⁴

In 2015, Debtor moved to Fargo, North Dakota, to be closer to family. She obtained a job as a receptionist/bookkeeper at Sahr Oil Company. Sahr Oil Company fired her because she arrived to work late (due to her sleep disorder) and because of issues "getting along with the owner."

Debtor created a resume at Job Service in 2016, but she has not updated it. See D-109. On this resume, Debtor represented that her qualifications include approximately 15 years of accounting experience. Id. Debtor explained, however, that accounting work has changed significantly since her accounting work experience began in 1977. Her bookkeeping positions with Northwestern Homes (2014) and Sahr Oil (2015) comprise her relatively recent work history related to accounting.

With regard to the technical skills necessary to foster a profession in accounting or other office work, Debtor clarified that she never worked with computers despite her years of experience in office and retail settings. She readily acknowledged that her technological incompetency limits her job prospects. In her words, she does not have "computer knowledge" anymore. Although she took online courses to obtain her associate's degree, she claims she "was having a very hard time." She intended to learn to use computers through the college program, but the instructors did not teach her how to use technology. When asked whether she sought other help to improve her computer skills, she answered:

"Couldn't afford to. There was no places available."

Debtor applied for various office jobs over the years, but "they have repeatedly said no," presumably because of her lack of computer skills. She also believes potential employers hire younger workers. Debtor has not applied for any jobs in the accounting field in the last two years.

Debtor also testified she is unable to work as a cashier. She explained, "I don't know how to work the registers ... I tried once, and they gave up on me ... I don't remember the steps and when there's, for example at the grocery store the sales are every week. I don't remember the sales."

Debtor completed online applications for the last few positions she sought, but she has not applied for a job online in more than a year. Although she owns a laptop, it has been outdated for at least four years, and she cannot afford to update it. She maintains it would be less expensive to get a new laptop than to update her current one, but she cannot afford that either.

On her resume, Debtor also lists "25 years of experience with customer service in both office and retail settings" among her qualifications. While she has previous customer service experience, Debtor testified that her personality and temperament are not suited to it today. Consistent with her self-description, Debtor demonstrated brusque and irascible characteristics during trial that may not work well in customer service.

Debtor explained that she is not currently searching for jobs because "they won't hire me because of my personal disabilities. I call them disabilities. Legally, medically, they say I'm not bad enough, but then why am I in bed all day Sunday? Why can't I get up?" Debtor listed some of her medical and physical conditions, including arthritis, water retention, relapses of colitis, chronic sinusitis (resulting in six sinus surgeries), no upper arm strength, weight gain, lack of blood flow in her legs, thyroid disease, hiatal hernia and kidney disease. D-112. Debtor explained that she has arthritis in her hip and spine. She takes Tylenol for the pain. She cannot grip her hand tightly because of water retention. A medical provider removed Debtor's thyroid, which "affects other parts of the body and makes them not work." She testified that she gained 30 pounds in the last three years for no apparent reason other than her body is not working correctly. Debtor's back "has gone out" several times over the years.⁵

Despite these health issues, physicians have not diagnosed Debtor with a permanent physical disability limiting her ability to work.⁶ Periodically, Debtor received notes from doctors limiting her work temporarily, but they never suggested long-term restrictions. Debtor learned to "fix" some of her issues because of the frequency of them, but she asserts that, collectively, she is "a mess" physically.

Debtor maintains her physical health conditions affect her ability to work. Debtor cannot sit for any length of time because of the pressure it puts on her spine. If she does not keep moving, her legs hurt. She also suffers from chronic sinusitis,⁷ resulting in constant sniffling. She is embarrassed by her sniffling because people think she is sick. Debtor asserts that these limitations prevent her from working in an office.

Although Debtor was unemployed at the time she petitioned for bankruptcy relief, she is now working part time as a night stocker at a grocery store, earning $11.00 per hour with no insurance benefits. She works limited hours because of her physical limitations. Debtor currently works Thursday, Friday and/or Saturday nights from 11:00...