Opinion
MEMORANDUM DECISION
PETER W. BOWIE, Chief Judge.
Mr. Moon has asked this Court to hold Educational Credit Management Corporation (ECMC) in contempt for violating the discharge injunction of 11 U.S.C. § 524 by attempting to collect on a student loan debt which Mr. Moon contends was discharged through completion of his Chapter 13 plan and resulting discharge.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern District of California. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), and (I).
Before the Court can undertake an analysis of whether Mr. Moon gave ECMC constitutionally sufficient notice of his intent to discharge his student loan debt, consistent with United Student Aid Funds, Inc. v. Espinosa, ___ U.S. ___ , 130 S.Ct. 1367 (2010), Mr. Moon needs to address the discharge he was granted on May 5, 2009. It expressly recites, in relevant part:
1. The Debtor is hereby discharged of all debts provided for by the Plan... except any debt
...
b. of the kind specified under 11 U.S.C. § 523(a)(5)(8), or (9)....
Student loan debt is generally nondischargeable under § 523(a)(8) unless a separate determination is made that requiring payment of the debt would impose an undue hardship on the debtor. No such determination was made in Mr. Moon's case prior to discharge, and the discharge itself recites that such debt is not discharged. If it was not discharged, then ECMC could not have violated the discharge injunction of § 524.
Without addressing any of the differences between this case and Espinosa, the Court notes that the discharge originally granted in Espinosa had similar language. The Ninth Circuit Court of Appeals remanded the original appeal for the trial court to determine whether the discharge order excepting student loan debt from discharge was the result of a clerical error given the express language contained in Espinosa's Chapter 13 plan. Espinosa v. United Student Aid Funds, Inc. , 553 F.3d 1192, 1196 (9th Cir. 2008).
At this stage of the proceedings in Mr. Moon's case, the discharge order which he says ECMC has violated actually says such debt is excepted from discharge. So long as the discharge remains as it was granted, there is no discharge of the debt owed ECMC, and therefore no violation of § 524.
Accordingly, Mr. Moon's instant motion, seeking to hold ECMC in contempt, must be denied, without prejudice.
IT IS SO ORDERED.