In re:
REPP, AARON A. and REPP, STEPHANIE,
Debtor,
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BAP number: EW-03-1225-KRyRi
BK Number: 99-05994-R33
ADV Number: A02-00181-R33
EDUCATIONAL CREDIT MANAGEMENT CORPORATION,
Appellant,
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v.
AARON A. REPP and STEPHANIE REPP,
Appellee.
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OPINION
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
Argued and Submitted on October 23, 2003
at Las Vegas, Nevada
Filed - March 26, 2004
Appeal from the United States Bankruptcy Court
for the Eastern District of Washington
Honorable John A. Rossmeissl, Bankruptcy Judge, Presiding
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Before: KLEIN, RYAN, and RIMEL, (1) Bankruptcy Judges.
KLEIN, Bankruptcy Judge:
This is the next skirmish in the war over the use of "illegal" chapter 13 plan provisions to discharge
student loan debts notwithstanding a statute that excepts such debts from the chapter 13 discharge. The
pro-discharge forces won the last "discharge-by-declaration" engagement in Great Lakes Higher Educ.
Corp. v. Pardee (In re Pardee), 193 F.3d 1083 (9th Cir. 1999).
The specific question, still open in the Ninth Circuit, is whether a student loan creditor whose collection
rights would be terminated by a chapter 13 plan provision is entitled to notice substantially equivalent to
the notice required for the adversary proceeding prescribed by the Federal Rules of Bankruptcy
Procedure for determining a student loan's discharge status under 11 U.S.C. ยง 523(a)(8).
Appellant asks us to follow the Fourth Circuit's lead in Banks v. Sallie Mae Servicing Corp. (In re Banks),
299 F.3d 296 (4th Cir. 2002), which held that Rule 7001's requirement of an adversary proceeding, with
proper service of a summons and complaint, is the due process benchmark for student loan discharge
issues, and hold that merely mail