Debtors do not have the Burden to Prove Section 523(a)(8) applies to their Loans

Kimberly Lee

St. John’s University School of Law

American Bankruptcy Institute Law Review Staff


          Section 523 of Title 11 of the United States Code (the “Bankruptcy Code”) generally provides that a student loan cannot be discharged unless it would impose “undue hardship” on the debtor.[1] However, the undue hardship requirement does not apply to all student loans; section 523(a)(8) generally applies to a loan guaranteed by the government or funded by the government or a nonprofit institution.[2]  In In re Love, a Kansas bankruptcy court held that the creditor had the burden of proving that the debtor’s loans fell within section 523(a)(8).[3] In 2013, Rodger Dean Love (“Debtor”) filed for bankruptcy under chapter 13 of the Bankruptcy Code.[4] Thereafter, Debtor filed a complaint against the United States Department of Education and Navient Solutions, Inc. to have his student loan debt discharged.[5] With respect to Navient, Debtor argued that the loans were not subject to the undue hardship standard.[6]  Navient disagreed, arguing that the Debtor had the burden to prove that section 523(a)(8) did not apply to Navient’s loans.[7] The court concluded that creditors have the burden of establishing that section 523(a)(8) applies to a debtor’s loans.[8]

            In coming to its conclusion, the court noted that Navient had failed to provide support for its position that a plaintiff has the burden of proof.[9]  Instead, the court found that there is an apparent split as to who has the burden.[10]  However, the court was persuaded by the authority concluding that the burden is on the creditor.[11]  Such authority included a Pennsylvania bankruptcy court’s decision where it found that “cases interpreting §523(a)(8) have held that the initial burden is on the lender to establish the existence of the debt and to demonstrate that the debt is included in one of the four categories enumerated in §523(a)(8).”[12] Moreover, the Kansas bankruptcy court noted that the United States Court of Appeals for the Tenth Circuit, the decisions of which are binding on the Kansas bankruptcy court, held, albeit in different procedural circumstances, that “the burden is on the creditor to show a debt is non-dischargeable under §523(a)(8).”[13]

          Section 523(a)(8) of the Bankruptcy Code provides that certain student loans are not dischargeable unless it would impose “undue hardship” on the debtor.[14] According to the Kansas bankruptcy court, the creditor has the burden to establish that the debtor’s loans fall within the section 532(a)(8).[15]  Thereafter, assuming the creditor meets its burden, the Debtor has the burden to prove that denial of discharge would be an “undue hardship.”[16]


[1] See 11 U.S.C. § 523(a)(8).

[2] See id.

[3] See In re Love, No. 13-41680, 2021 WL 1732255, at *1 (Bankr. D. Kan. Apr. 29, 2021).

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See id.

[9] See id at *2.

[10] See id.

[11] See id at *1.

[12] Id. (quoting In re Rumer, 469 B.R. 553 (Bankr. M.D. Pa. 2012)).

[13] Id. (quoting McDaniel v. Navient Sols., LLC (In re McDaniel), 973 F.3d 1083, 1092 (10th Cir. 2020)).

[14] See 11 U.S.C. § 523(a)(8).

[15] See In re Love, No. 13-41680, 2021 WL 1732255, at *2.

[16] See id.