Whether the Fifth Circuit erred in applying the Brunner test instead of the totality test to determine whether a debtor would suffer an 'undue hardship' absent discharge of her student loan debt

QUESTION PRESENTED The Bankruptcy Code permits courts to discharge student loan debt in bankruptcy if a debtor can show that repaying it would cause her “undue hardship.” 11 U.S.C. § 523(a)(8). Two inconsistent standards have emerged to evaluate whether a debtor’s showing is sufficient. Most circuits, including the Fifth Circuit, apply the Brunner test, see Brunner v. New York State Higher Education Services Corp., 831 F.2d 395, 396 (2d Cir. 1987), which prohibits discharge unless the debtor can prove, among other things, a “total incapacity” to repay the debt in the future. Other courts have rejected Brunner in favor of a more flexible test under which the totality of circumstances may be considered. On this approach, courts ask whether the debtor’s “reasonable future financial resources will sufficiently cover payment of the student loan debt|] while still allowing for a minimal standard of living.” In re Long, 322 F.3d 549, 554-55 (8th Cir. 2003). The question presented is whether the Fifth Circuit erred in applying the Brunner test instead of the totality test to determine whether a debtor would suffer an “undue hardship” absent discharge of her student loan debt.