UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
KAREN MARIE ELLIOTT
DEBTOR CASE NO. 91-00410
KAREN MARIE ELLIOTT PLAINTIFF
VS. ADV. NO. 91-0112
U.S. DEPARTMENT OF EDUCATION DEFENDANT
This matter is before the Court on the plaintiff's Motion for Summary Judgment. The plaintiff seeks discharge of a student loan pursuant to 11 U.S.C.'523(a)(8). This Court has jurisdiction of this matter pursuant to 28 U.S.C. '1334(b); it is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).
The plaintiff states that the educational debt she seeks to discharge first became due for payment on July 14, 1984. She was granted a twelve month period of forbearance. She filed her Chapter 7 case in this Court on March 14, 1991. Therefore, she alleges, at the time of filing of her petition in bankruptcy, her student loan had been due and payable for more than five years but less than seven years.
The sole issue in this matter is the effective date of the 1990 amendment to 11 U.S.C.'523(a)(8)(A). This section, as amended, makes a student loan nondischargeable unless it "first became due more than 7 years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition". The language that this amendment replaced provided that a student loan was nondischargeable unless it "first became due before five years...before the date of the filing of the petition".
As the plaintiff points out, Public Law No. 101-647 (Crime Control Act of 1990) amended'523(a)(8)(A). Public Law No. 101-647 was enacted on November 29, 1990, and most of its provisions became effective upon enactment. However, the amendment to '523(a)(8)(A) was designated to take effect 180 days after the date of enactment. Public Law No. 101-646, Section 3621; 3 Collier on Bankruptcy Chapter 523.18 n. 3b (15th ed. 1991). The amendment therefore did become effective until 180 days after November 29, 1990, or May 28, 1991.
Clearly, therefore, the amendment to'523(a)(8)(A) did not become effective until several months after the plaintiff filed her bankruptcy petition. Consequently, the applicable period for determining the dischargeability of her student loan was the five year period and not the seven year period. The plaintiff has carried forward her burden of demonstrating that there is no genuine issue as to any material fact and that she is entitled to judgment as a matter of law. Her Motion for Summary Judgment will be sustained by separate Order.
Entered this ____day of February, 1992.
By the Court -
Thomas R. Seel, Esq.
David Middleton, Esq.
James A. Nolan, Esq., Trustee