IN RE ANAGICK

HERBERT ROSS, Recalled Bankruptcy Judge

The defendant, ACPE, filed a motion for summary judgment (Dkt 10) pursuant to a pre-trial conference order (Dkt 9), and plaintiff has not responded.

I have reviewed the motion and find that ACPE has established that there are no material facts in dispute and that it is entitled to a summary judgment of non-dischargeability for the amount claimed. That amount is $9,161.85 in principal, plus interest at 5% from August 6, 1997 (the date of a Default Judgment by Clerk of Court in Case No. 4FA-96-1040CI in the District Court for the State of Alaska, Fourth Judicial District), interest accrued through June 1, 2007, in the amount of $3,238.78 (ACPE voluntarily reduced the judgment rate of 11% to 5% and has waived attorney fees awarded it). This totals$12,400.63 as of June 1, 2007, plus $1.2550 per day after that.

I am basing the summary judgment on the first legal argument of ACPE, that the amount owed was simply not discharged by plaintiff's 1987 bankruptcy. Thus, the amount sought is non-dischargeable pursuant to 11 USC § 523(a)(8) as it existed in 1987, when plaintiff filed her first bankruptcy petition. The subsequent bankruptcy case also does not warrant that the claim be declared non-dischargeable.

In addition to the cases ACPE cites for the proposition that the non-dischargeability of student loans under 11 USC § 523(a)(8) is self-executing should be added In re Hoxie, ___ BR ___, 2007 WL 4572868 (SD Cal 2006), which cited Tenn. Student Assistance Corp. v Hood, 541 US 440, 450 (2004). Much of plaintiff's reasoning seems to be based on the erroneous impression that ACPE dropped the ball in the first bankruptcy by not establishing non-dischargeability; this theory is incorrect because non-dischargeability was self-executing.