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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICF OF ALASKA

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In re Case No. A88-00340
In Chapter 7
TATIANA LUCJA STUEHR,
Debtor(s)
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TATIANA LUCJA STUEHR,
Plaintiff(s),
v. Adv. No. A88-00340-00l,
ALASKA COMMISSION ON
POSTSECONDARY EDUCATION,
STATE OF ALASKA,
Defendant (s). ORDER DENYING MOTIONS FOR
SUMMARY JUDGMENT AND SETTING
TRIAL DATE
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            At Anchorage in said District this 27th day of July, 1990.

            The motion of the plaintiff and the cross-motion of the defendant for summary judgment have been submitted with affidavits for a determination by this Court. The sole issue is whether or not the plaintiff, Tatiana Lucja Stuehr, is entitled to discharge of an educational loan on "undue hardship" grounds pursuant to 11 U.S.C. 523(a)(8).

            The summary Judgment motions were ready for ruling in May, 1989. Through inadvertence they were not then submitted to the Court. A review of the file indicates a number of disputed or   TOP      1 ABR 45  unknown facts which could be relevant to the Court's determination. Among those facts are the plaintiff's current medical condition, the disposition of certain retirement benefits of plaintiff's husband, and whether or not the Stuehrs have found employment in Oregon. Pursuant to Rule 7056 of the Bankruptcy Rules and 56(c) of the Federal Rules of Civil Procedure, there are material facts which are either unknown or in dispute. Therefore the motions for summary judgment will be denied.

            In determining whether an undue hardship exists this Court will examine the totality of circumstances surrounding the case. In re Birden, 17 B.R. 891 (Bankr. Pa. 1982). While tests such as those in Brunner v. New York State Higher Educational Services, 831 F.2d 395 (2nd Cir. 1987), are helpful in determining an undue hardship, this Court feels that such determination must be made on a case by case basis. The tests utilized in Brunner and other cases are helpful, but not definitive.

            IT IS HEREBY ORDERED:

           (1)    Plaintiff's motion for summary judgment is denied;

           (2)    Defendants's cross-motion for summary judgment is denied;

           (3)    This case is set for trial on Thursday, August 14, 1990, at the hour of 1:30 P.M. The plaintiff may appear telephonically at the trial, but must make arrangements with the Clerk's Office (907/271-2640) to do so prior to trial;
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           (4)    Should the plaintiff fail to appear either telephonically or otherwise at the trial set for August 14, 1990, her default will be entered and the complaint will be dismissed.



                  DONALD MacDONALD IV
                         Bankruptcy Judge

    Serve: State of Alaska
    Tatiana Lucja Stuehr
    U.S. Trustee
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