THE FUTURE OF STUDENT LOANS persist for a signifi cant portion of the repayment period of the student loans; and (3) that the debtor has made good faith ef-forts to repay the loans.” 18 The court thoroughly considered the evidence in evaluat-ing the three prongs of the Brunner test. The court determined that the debtor presented evidence to satisfy the fi rst prong of the inquiry. The debtor’s evidence established an inability to maintain a minimal standard of living for herself and her dependents, as her income fell below 150 percent of the pov-erty line. 19 In evaluating the second prong, and pursuant to the analytical approach traditionally applied in precedent, the court determined that the debtor failed to provide the court with evidence suffi cient to establish, by a preponderance of the evidence that her fi nancial hardship was likely to persist for a signifi cant portion of the repayment period of the student loans. 20 Without evidence suffi cient to satisfy the second prong, the court could not grant a full discharge of her student loans. Yet, the court did not end its inquiry there. As requested by the debtor, the court went further to consider partial discharge of her student loan obligation. The court acknowledged that the Fourth Circuit had not yet adopted a test for undue hardship in the partial discharge context. Guided by a decision from the District Court for the Western District of Virginia, the court adopted the third prong of the Brunner test as the prerequisite for obtaining a partial discharge of student loan debt: a debtor’s good faith effort to repay the student loan obligation. 21 Upon the court’s review of the evidence, it found that the debtor made a good faith effort to repay her student loan obligation and therefore satisfi ed the prerequisite for partial discharge of student loan debt. 22 at a debtor’s short-term ability to repay fi xed amounts and applying it to determine whether a debtor’s circumstances may change at some time in the next twenty or more years.” 23 The court granted Amber Erbschloe a partial discharge of her student loan obligation upon condition of her qualifi -cation for, and participation in, an Income Based Repayment Program. 24 The court further concluded that any balance due and owing at the end of the 25-year repayment period rep-resents the portion of her student loan debt that would impose an undue hardship. As such, the court discharged that amount prior to its expected forgiveness. 25 Provided Amber Erbschloe’s monthly student loan obligation is $0 per month, her partial discharge would have the effect of a total and complete dis-charge of her debt. While the result in Erbschloe is not typical, it—coupled with an income-based repayment program—may provide a viable solution for those crippled with student loan debt. 26 The Legislative Outlook Despite an adjustment to the second prong of the Brunner test by the Erbschloe court, relief from student loan debt using the bankruptcy system remains tenuous at best. Many courts around the nation continue to adhere to the rigorous appli-cation of the Brunner test. As such, some argue that the best opportunity for relief must include the legislature. Earlier this year, the United States House of Representatives introduced two pieces of legislation aimed at facilitating relief: H.R.2366 and H.R. 2527. H.R. 2366 is also known as the Discharge Student Loans in Bankruptcy Act of 2017. Sponsored by Representative John K. Delaney of Maryland, the bill sought to eliminate 11 U.S.C. § 523 (a)(8) in its entirety. 27 Plainly speaking, the bill would enable unrestricted discharge of all student loans. The bill stalled in its subcommittee and failed to gain any mo-mentum. H.R. 2527 is a related bill and is also known as the Private Student Loan Bankruptcy Fairness Act of 2017. 28 Sponsored by Representative Steve Cohen of Tennessee, the bill does not attempt to facilitate the unrestricted discharge of all student loans. Instead, the bill sought to eliminate subparagraph (B) of 11 U.S.C. § 523 (a)(8), a “catch all” section for educational loans stemming from sources other than a governmental or nonprofi t unit. 29 This bill also stalled in its subcommittee and failed to gain any momentum. There has been no further ac-tion on either bill and the success of either bill is highly unlike-ly. While the introduction of these bills certainly signals recog-nition of the rallying cry of struggling consumers, legislators are evidently concerned with potential consequences that may ensue. www.vsb.org ... bankruptcy has been an unhelpful tool in eliminating student loan debt since the late 1980s. In granting the debtor’s prayer for a partial discharge of her student loan obligation, the court noted an observation of fi rst impression. The court evaluated the applicability of the second prong of the Brunner test given the recent inception of income-based repayment plans. In the court’s decision to es-sentially nullify the second prong of the Brunner test, the court noted that “courts must apply the Brunner test within the context of income-based and extended repayment plans that allow borrowers to extend their repayment periods for twenty or more years, all the while making monthly payments as low as $0. As such, courts are taking a test that was designed to look 38 VIRGINIA LAWYER | December 2017 | Vol. 66 | YOUNG LAWYERS CONFERENCE