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:
It court is difficult-forced to obtain an incident one makes reference to just what sets this new “educational” character from that loan under § 523(a)(8)(B)
“[A]nyc almost every other informative loan” are a great “put,” as well as all sort of financing that may slip thereunder, only the “subset” from “qualified training finance” falls inside the difference to release. Said one other way, discover a-two-tiered studies: first, whether an obligations was a beneficial “loan” and you may, if it is, next if this fits the inner Cash Code concept of “certified education loan.”
Your situation law examining “educational” finance significantly less than § 523(a)(8) typically examines how pupils purchase mortgage currency otherwise analyzes integration funds, sought after because of the borrowers, hoping regarding protecting finest mortgage conditions otherwise rates
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? Come across Alibatya v. Ny University (When you look at the re also 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 (In re also 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.” Joined College student Assistance Loans v. Flint (When you look at the lso are Flint), 238 B.R. 676, 680 (E.D. Mich. 1999) (citing Santa Fe Med. Servs., Inc. v. Segal (For the re Segal), 57 F.3d 342, 349 (3d Cir. 1995)); see Lapusan v. Educ. Borrowing Mgmt. Corp. (Within the lso are Lapusan), 244 B.R. 423, 424 (Bankr. S.D. Ill. 2000) (citing Flint, 238 B.R. at 680-81); George Washington Univ. v. Pelzman (Inside the re 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 off Eng’g (Inside the lso are Sokolik), 635 F.3d 261, 266 (7th Cir. 2011); Brown v. Rust (Within the lso are Corrosion) 510 B.R. 562, 567 (Bankr. E.D. Ky. 2014). See generally Dufrane v. Navient Sols., Inc. (For the lso are Dufrane), 566 B.R. 28, 36-39 (Bankr. C.D. Cal. 2017). This case is different.