||ROGER D. DRURY and KATHERINE A. DRURY,
UNITED STATES BANKRUPTCY
COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION - FLINT In re: Case
No. 98-32055-WS ROGER D. DRURY and Chapter 7 KATHERINE A. DRURY, Hon.
Walter Shapero Debtors. /
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MINNESOTA
LANCE VAN ROBERTSON and ORDER DENYING MOTION OF UNITED
PAMELA JEAN ROBERTSON, STATES TRUSTEE FOR DISMISSAL
PURSUANT TO 11 U.S.C. § 707(b)
At Minneapolis, Minnesota, this 3rd day of July, 2007.
This Chapter 7 case came on before the Court for hearing on the motion of the
United States Trustee (“the UST”) for dismissal under 11 U.S.C. § 707(b). The UST appeared by
his attorney, Michael R. Fadlovich. The Debtors appeared by their attorney, Joseph L. Kelly. The
following order memorializes the disposition of the motion, based on the pre- and post-hearing
written submissions and the arguments of counsel.
NATURE OF MOTION
This case was commenced by a voluntary petition filed on September 30, 2006. This
was after the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of
2005, Pub. L. No. 109-8 (“BAPCPA”); hence the provisions of BAPCPA apply to it.
Before the enactment of BAPCPA, 11 U.S.C. § 707(b) had been known as the
“substantial abuse” provision of Chapter 7. Under the former text, the Chapter 7 case of an
individual whose debts were primarily consumer debts could be dismissed on motion of the UST,
if allowing the case to proceed to a general discharge of debt “would be a substantial abuse of the
provisions of” Chapter 7. The pre-2005 version of the statute did not define the term “substantial
abuse.” Nor did it identify relevant factors to be considered in applying the term, or outline the
analysis to be used.
But over the years after its first enactment in 1984, the Eighth Circuit (and other
NOTICE OF ELECTRONIC ENTRY AND
FILING ORDER OR JUDGMENT
Filed and Docket Entry made on 7/03/07
Lori Vosejpka, Clerk, By jrb, Deputy Clerk
courts) construed former § 707(b) to focus on whether the debtor had the financial ability to support
a confirmable plan under Chapter 13 that would pay a meaningful distribution to unsecured
creditors. Under this line of authority, the showing of such an ability equated to the prospect of
substantial abuse, which would merit dismissal of the Chapter 7 case. E.g., In re Taylor, 212 F.3d
395 (8th Cir. 2000); In re Koch, 109 F.3d 1285 (8th Cir. 1997); In re Huckfeldt, 39 F.3d 829 (8th Cir.
1994); United States Trustee v. Harris, 960 F.2d 74 (8th Cir. 1992); Fonder v. United States, 974
F.2d 996 (8th Cir. 1992); In re Walton, 866 F.2d 981 (8th Cir. 1989); In re Cox, 315 B.R. 850 (B.A.P.
8th Cir. 2004); In re Nelson, 223 B.R. 349 (B.A.P. 8th Cir. 1998). Incorporating as it did the
considerations of 11 U.S.C. § 1325(b), this line of authority left much to the process of factfinding
by the bankruptcy judge--not to mention an individualized exercise of judgment, as to which of a
debtor’s proposed personal expenditures were “reasonably necessary to be expended” for the
maintenance and support of the debtor and dependents, among other issues.
The 2005 legislation multiplied the length of the text of § 707(b) by 13 to 14 times, if
an eyeballed estimate from the published pages would serve. Congress re-identified the putative
wrong against which § 707(b) lies, by deleting the qualifying adjective from the identifier; now the
court may dismiss “if it finds that the grant of relief [under Chapter 7] would be an abuse of the
provisions of [that] chapter.” (The emphasis is added.) One is not sure what the point is, of that;
but then the amendment directs the bulk of the burgeoned text to process by which the court is to
get to the point of dismissal, i.e., the finding of a prospect of “an abuse,” by specifying a detail-heavy
A number of trial-level courts have already published decisions applying the new
statute. Several of them have identified the underlying congressional purpose as the reduction of
judicial latitude and discretion in the process of fact-finding and legal adjudication under § 707(b).
In re Hartwick, 352 B.R. 867, 870 (Bankr. D. Minn. 2006); In re Haman, ___ B.R. ___, 2007 WL
1Perhaps this is better termed a showing of lack of non-entitlement. The phrasing is clumsier, but
it seems to carry the thought better.
1175532, *8 (Bankr. D. Del. 2007); In re Longo, ___ B.R. ___, 2007 WL 836762, *3 (Bankr. D. Conn.
2007); In re Randle, 358 B.R. 360, 363 (Bankr. N.D. Ill. 2006); In re Barr, 341 B.R. 181, 185 (Bankr.
M.D. N.C. 2006). The more free-ranging exercise of judgment as to a debtor’s ability to repay debt
seems to have been significantly constrained. Now, if the movant relies on the test added by the
amendments, the court is to go through a much more formulaic process of identifying the debtor’s
“current monthly income”--now a defined term under new 11 U.S.C. § 101(10)(A), limned by source
and calculated as an average over a specified time--and then deducting certain specifically
identified, deemed charges from it. The goal is to identify an amount which, if positive, is deemed
to be available for debt repayment on a monthly basis. If that amount, as it would accumulate over
60 months, either meets a floor specified by dollar amount or would be sufficient to service a
specified fraction of the debtor’s general unsecured debt, “the court shall presume abuse exists.”
(Presumably, then, a prima facie case for dismissal has been made; however, it is not specified
whether this presumption is rebuttable or irrebuttable, and the statute does not indicate what proof
would be necessary to rebut it.)
Strictly speaking, this is not a matter of “eligibility” for Chapter 7; Congress did not
push this complicated verbiage into 11 U.S.C. § 109, which is entitled “Who may be a debtor.”
Rather, it is a matter of singling out, on a case-by-case basis, those petitioners already in Chapter
7 who are then to be deemed not entitled to finish up their cases to receive the complex of relief
available to individual debtors in bankruptcy liquidation. It amounts to a culling from the court’s
Chapter 7 docket, done after the fact of filing a petition, on individual motion by the UST.
At least for the majority of cases, the motion will be brought in challenge of the
debtor’s preliminary showing of entitlement to Chapter 7 relief.1 This newly-required debtor’s
showing is now to be made at the inception of the case on the so-called “means test document,”
2Form B22A is among the Interim Forms currently required in this District. Its full title is
“Statement of Current Monthly Income and Means Test Calculation.”
3Under current practice of the clerk, there is no separate filed document associated with this entry.
Through the CM/ECF electronic filing program, the office of the UST submits a request to have standardized
text with this wording inserted into the electronic-format case docket. The creation of that entry has the
same legal effect as to its wording-content as the filing of an electronically-submitted separate document
would be given. This practice was adopted to conveniently memorialize a standardized case event,
communication, and docket entry, at a time when it seemed that these “statements” would be forthcoming
in large multiples.
THE ISSUE AT BAR, AS IT ARISES FROM THE
PROCEDURAL HISTORY OF THIS MOTION
This case presents a threshold issue under the new regime of dismissal-for-abuse
in Chapter 7 cases. That issue does not entail the substantive merits under § 707(b) on which the
UST based his original request for dismissal. Instead, it emerges from the procedural antecedents
of the motion.
The original means test form filed by the Debtors did not show a surplus of household
income at all, let alone one in an amount that exceeded the statutory maxima so as to trigger the
presumption of abuse under § 707(b)(2)(A)(i). Pursuant to Fed. R. Bankr. P. 2002(a)(1), the clerk’s
notice issued on the filing of the Debtors’ petition set the date of the meeting of creditors for
November 9, 2006. On November 20, 2006, the office of the UST caused to have the following entry
placed on the docket for this case:
The United States Trustee has determined that the debtor has not filed
nor transmitted all of the required means testing documents and that
without these documents, the United States Trustee cannot make a
determination as to whether debtor’s case is presumed abusive under
On December 14, 2006, the UST filed the motion at bar, giving notice of a hearing on
January 16, 2007. In that motion, the UST’s attorney acknowledged the facial content of the Debtors’
Form B22A. However, he stated that the UST had “identified errors with respect to the Debtors’ CMI
and expense deductions on their Form B22A.” Going on, the UST had “recalculated the information
on Form B22A” after considering the additional information and making certain assumptions. On that
basis the UST had concluded that “the Debtors do in fact have monthly disposable income totaling
$1,030.11,” which if “multiplied by 60 exceeds $10,000.00.” Thus, as the UST would have it, “the
presumption of abuse arises in this case,” prompting this motion. He urged that the presumption
standing alone is a basis for dismissal.
The Debtors’ counsel filed his clients’ response on January 10, 2007. In it, the
Debtors defended the motion on its merits, as to the specifics of the means-to-pay factors. But they
also raised a threshold, procedural issue, that the motion was barred because the UST had never
filed a “statement as to whether the debtors’ case would be presumed to be an abuse under [11
U.S.C. §] 707(b),” as required under 11 U.S.C. § 704(b)(1)(A). The Debtors’ counsel argued that 11
U.S.C. § 704(b)(2) makes the filing of a statement to that effect a prerequisite for the filing of a motion
for dismissal that relies on the presumption of § 707(b)(2)(A). Thus, he maintained, the lack of a filed
statement by the UST speaking directly to the existence of the presumption made the motion at bar
fatally deficient as to a statutorily-required prerequisite.
Interestingly enough, on January 16, 2007--on the day counsel argued this motion,
but after the hearing ended--the UST filed a document entitled “Statement of Presumed Abuse.” The
text of this document reads as follows:
The United States Trustee previously filed a statement under section
704(b)(1)(A) of the Bankruptcy Code indicating an inability to
determine whether this case would be presumed to be an abuse. The
United States Trustee has reviewed all materials filed and submitted
by the Debtor, including certain additional documents received after
the filing of the United States Trustee's initial statement under section
704(b)(1)(A). Based on this review, the United States Trustee has
determined that the Debtor's case is presumed to be an abuse under
11 U.S.C. section 707(b)(2).
4Close addressed the issue of when the ten-day period commences for the filing of the UST’s
statement under § 704(b)(1)(A), as between a first date set for a meeting of creditors (on which the meeting
in Close was actually convened), and the later date on which a continued meeting of creditors was deemed
to have been concluded (without the actual attendance of any party). The focus in this case, however, is on
the other end of the ten days, as well as the content of the statement filed at the end of the period.
5E.g., Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942,
1947 (2000); Rake v. Wade, 508 U.S. 464, 472-473, 113 S.Ct. 2187, 2192-2193 (1993); Pioneer Inv. Servs.
Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 387, 113 S.Ct. 1489, 1494 (1993); Patterson v.
Shumate, 504 U.S. 753, 758, 112 S.Ct. 2243, 2246-2247 (1992); Taylor v. Freeland & Kronz, 503 U.S. 638,
642, 112 S.Ct. 1644, 1647-1648 (1992); Barnill v. Johnson, 503 U.S. 393, 395-400, 112 S.Ct. 1386, 1388-
1391 (1992); United States v. Nordic Village, Inc., 503 U.S. 30, 32-37, 112 S.Ct. 1001, 1014-1016 (1992);
Union Bank v. Wolas, 502 U.S. 151, 160-162, 112 S.Ct. 527, 533 (1992); Board of Governors of the
Federal Reserve System v. MCorp Financial, Inc., 502 U.S. 32, 38, 112 S.Ct. 459, 463 (1991); Toibb v.
Radloff, 501 U.S. 157, 160-161, 111 S.Ct. 2197, 2199-2200 (1991); Hoffmann v. Connecticut Dept. of
Income Maintenance, 492 U.S. 96, 101-102, 109 S.Ct. 2818, 2822-2823 (1989) (plurality opinion); United
States v. Ron Pair Ents., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1031 (1989). Contra, BFP v. Resolution
Trust Corp., 512 U.S. 1247, 114 S.Ct. 2771 (1994); Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773 (1992).
6For instance, a debtor is to “file” all of the basic documents to commence a bankruptcy case, 11
U.S.C. § 521(a)(1), “unless the court orders otherwise,” § 521(a)(1)(B), and the case “shall be automatically
This threshold issue appears to be a matter of first impression, insofar as published
case law is concerned. There is only one extant decision that applies the mandates of new
§ 704(b)(1) to the treatment of a motion for dismissal under new § 707(b)(2), In re Close, 353 B.R.
915 (Bankr. D. Kan. 2006), and that is not on point.4
As in Close, the outcome on the issue at bar is a matter of the “plain meaning” rule
of statutory construction, an approach much favored by the Supreme Court in its bankruptcy
jurisprudence over the last two decades.5
Section 704(b)(1)(A) prescribes the groundwork and specifies the staging for a UST’s
motion for dismissal, in which the presumption of abuse may be invoked to make out a prima facie
case. Its operative verbs are words of mandate--“shall”--which establishes its procedural
prescriptions as essential prerequisites for any subsequent motion. The UST is to “review all
materials filed by the debtor.” In context--i.e., the densely-worded framework added by BAPCPA--it
is amply clear that “filed” means filed with the court.6 There is no reference to materials to be
dismissed effective on the 46th day after the date of filing of the petition” if the debtor has not “filed” all of
those documents during the preceding 45 days, § 521(i)(1). Strictly speaking, § 521(a)(1) does not specify
that the recipient of the act of “filing” is the court. But there is no way to comprehend an “automatic”
dismissal of the case other than by act of a court that had been monitoring its own records, received and
maintained under statutory mandate. Beyond that, the debtor is to “file with the clerk” of the court a
statement of intention as to the future disposition of secured debt and associated collateral, § 521(a)(2)(A);
to “file with the court” a certificate attesting to the debtor having received certain credit counseling prepetition,
§ 521(b)(1), plus “the debt repayment plan, if any,” produced through that counseling, § 521(b)(2);
and to “file with the court” the record of any interest of the debtor in an education individual retirement
account, § 521(c). In turn, “[a]t the request of” the court or other named parties, the debtor is to “file with
the court” copies of all Federal income tax returns filed by the debtor during the pendency of the bankruptcy
case and other documents related to tax returns, §§ 521(f)(1) - (3), as well as annual verified statements of
the income and expenditures of the debtor during the pendency of a Chapter 13 case, § 521(f)(4). By
contrast, when the recipient of a debtor’s transmission of documents is someone or something other than
the court, BAPCPA’s operative verb is “provide”: see § 521(e)(2)(A)(i) (debtor is to “provide” trustee with
copy of most recent Federal income tax return); § 521(e)(2)(A)(ii) (ditto, as to any creditor requesting
same); § 521(h) (debtor to “provide” document(s) to establish debtor’s identity, to UST or trustee). And, in
turn, if a creditor in a Chapter 13 case “files with the court” a request for a copy of the debtor’s plan, the
court is to “make available” such, § 521(e)(3). Much of the language of BAPCPA is puzzling on an initial
review; but in context the sharp delineation between these two verbs is obvious, and as between the two the
denotations are distinct.
7The generally-applicable means would include the resort to an examination of a debtor under Fed.
R. Bankr. P. 2004 or 2005, or the derivative measure of UST access to all documents and information that
the assigned panel trustee could compel from a debtor under 11 U.S.C. §§ 521(a)(3) - (4). Since there
would be no “contested matter” pending via formal proceeding in the case, formal discovery would not yet be
available under Fed. R. Bankr. P. 9014(c).
8The new text seems to be designed to put some teeth into this assumption. Under new
§ 707(b)(4)(C), attorneys are subject to a statutory “automatic certification of meritoriousness” as to any
“petition, pleading, or written motion” signed by them. This certification is analogous to that long imposed
obtained from the debtor or third-party sources via formal discovery, informal exchange, or
independent investigation. There is certainly no newly-created right in the UST to compel the
production of documents or any other information from a debtor on an expedited basis, or to obtain
them in any way other than those under generally-applicable law.7 So, in doing the statutorilymandated
early evaluation of a case for the prospect of a presumption of abuse, the UST ultimately
is relegated to relying on what the debtor “filed” in the case. The statute seems to contemplate that
this will present sufficiently-reliable information on which to make an evaluation--at least when
debtors and their counsel have complied with the newly-heightened duties of verification as to
accuracy that BAPCPA has imposed.8
by Fed. R. Bankr. P. 9011(b), though the statute uses part of the language from an earlier version of that
rule. Another automatic certification is imposed by new § 707(b)(4)(D). It is triggered by counsel’s
signature on the client’s bankruptcy petition, which activates a deemed representation that “the attorney
has no knowledge after an inquiry that the information in the schedules filed with such petition is incorrect.”
Though this new verbiage has no directly-associated enforcement mechanism, § 707(b) now contains a
basis in statute for the bankruptcy court to impose sanctions. These can take the form of “all reasonable
costs” incurred by a successful movant under § 707(b), where “the action of the attorney for the debtor in
filing a case under [the Bankruptcy Code] violated rule 9011 of the Federal Rules of Bankruptcy Procedure.”
11 U.S.C. § 707(b)(4)(A)(i) - (ii). It also provides for “the assessment of an appropriate civil penalty against
the attorney for the debtor,” § 707(b)(4)(B)(i), payable to the trustee or the UST, § 707(b)(4)(B)(ii), if “the
attorney for the debtor violated rule 9011of the Federal Rules of Bankruptcy Procedure,” 11 U.S.C.
§ 707(b)(4) (prefatory language). These provisions are worded in a cumbersome fashion and they are
clumsily organized. With them being references to readily-amendable rules of court procedure that were
not legislatively adopted, their mere placement in a statute is somewhat counterintuitive. It is not clear
exactly how they are to be applied, and they may not be as baleful as they first may seem. See David
Gray Carlson, Means Testing: The Failed Bankruptcy Revolution of 2005, 15 AM. BANKR. INSTIT. L. REV.
223, 294-295 (2007); Henry J. Sommer, Making Sense Out of Nonsense: Representing Consumers Under
the “Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,” 79 AM. BANKR. L.J. 191, 204-206
(2005). But, their general drift is clear: debtors’ counsel are to exercise significant care as to the
completeness and accuracy of all recitations on their clients’ schedules, after they have made a factual
investigation and legal evaluation that conforms to the standards applicable to any attorney filing a pleading,
motion, or other document in a federal court. The content of a debtor’s petition and schedules is relied on,
and should have the quality to merit that reliance. (Critic Sommer, 79 AM. BANKR. L.J. at 206, questioned
whether the new verbiage worked any change from preexisting law. He had a point, though an academic
After that, the statute is equally clear: the UST “shall . . . file with the court a statement
as to whether the debtor’s case would be presumed to be an abuse under [§] 707(b) . . .” (emphasis
added). The word “whether” is dictionary-denoted as “a function word . . . to indicate . . . (2) an
indirect question involving alternatives . . . ; (3) alternative conditions or possibilities . . .” Philip
Babcock Gove, ed., WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
(unabridged ed. 1993), at 2603 (emphasis added). As such, this requires an election between two
specific representations, to be made right in the text of the UST’s statement. Both of those
representations are to go in an unequivocal fashion to the UST’s estimation of the legal posture of
the case in light of § 707(b)(2). There either is or is not a presumption of abuse, based on a detailbusy
analysis of the debtor’s monthly income, reduced by the expenses and secured debt payments
and so forth, both general in nature and fussily pinpoint-specific, that are laid out in §§ 707(b)(2)(A) -
9Neither side has made an issue as to whether the Debtors’ current monthly income equals or
exceeds the median family income in Minnesota for a household of their size. It is undisputed that they
have two dependents. In his analysis for this motion the UST has calculated the Debtors’ current monthly
income at $7,421.39, a figure that the Debtors did not controvert in their defense of the motion. The median
annualized family income for a four-person household in Minnesota is $75,990.00. See U.S. Census
Bureau, State Median Family Income, available at www.usdoj.gov/ust/eo/bapcpa/20070201/
meanstesting.htm (viewed July 3, 2007 for present purposes); and, in general, www.census.gov/hhes/
www/income/income.html. The Debtors’ current income, as calculated by the UST, is $89,056.68,
annualized. Thus, the deadline of § 707(b)(2) applies to this case, as do the statutory prerequisites for a
motion brought under that statute.
10The one that the UST did file was, to use a colloquialism, way late.
(B). But the UST must state which one is the case, in his estimation.
Under the common, every-day meaning of the statutory verbiage there is no room for
an equivocal placeholder, the planting of a stake that is somehow to reserve the right to draw a
conclusion for later exercise, to toll the period under § 704(b)(2) for the filing of a motion under
§ 707(b)(2), or both. And yet that is all the UST did here.
Going further into the statute, and by equal words of mandate, in a case where the
debtor’s household income is at or above “the median family income of the applicable state” for a
household of the size deemed to the debtor’s, § 704(b)(2) requires any motion for dismissal based
on the presumption to be filed within “30 days after the date of filing a statement under [§ 704(b)](1).”9
It is undeniable that a motion that invokes the presumption can be made only if the UST has already,
timely, put of record his unequivocal conclusion that the presumption lies in the case. That did not
That is why the UST’s motion must be denied, for want of a statutorily-prescribed
The language of §§ 704(b)(1) - (2) tracks with a more general intent behind BAPCPA,
to reduce delay in the fixing of rights and statuses during the course of bankruptcy cases, and in
particular to expedite the basic determination of whether a party should be in bankruptcy at all. E.g.,
H.R. REP. NO. 109-31, pt. 1, 109TH CONG., 1st Sess. (2005) at 19 (BAPCPA’s expansion of expedited
11The way the UST framed his motion in his original written submission, it sounded only under
§ 707(b)(2), and it was based only on the presumption of abuse created by that subsection. The title of the
motion specified as such; and all of the analysis spun out at length in the motion’s text was premised on
§ 707(b)(2) alone. There was no mention of the alternate statutory basis for dismissal, 11 U.S.C.
§ 707(b)(3), until paragraph 33 of the motion’s text:
In the event the court does not find the Debtor’s case to be a presumptive
abuse under 11 U.S.C. §707(b)(2), then the U.S. Trustee submits that the
case is an abuse using the Totality of Circumstances test as set forth in
11 U.S.C. §707(b)(3) and the U.S. Trustee hereby reserves his right to
bring a motion under that subsection.
This is not an invocation of § 707(b)(3) via the proceeding that was then being initiated via the filing of that
written motion. It was just a statement of an intention “to bring a motion under that subsection,” i.e., a
“small business Chapter 11" provisions “institut[e] a variety of time frames and enforcement
mechanisms designed to weed out small business debtors who are not likely to reorganize”) and 47
(general “Performance Goals and Objectives” of BAPCPA include “streamlining case administration”
in bankruptcy cases). This is one instance, however, where the onus of acting quickly, clearly, and
decisively falls on a party other than the debtor. BAPCPA contained a number of ostensibly strictcompliance,
zero-tolerance measures that weigh heavily on debtors in bankruptcy. E.g., In re
Rendler, ___ B.R. ___, 2007 WL 1276947 (Bankr. D. Minn. 2007), In re Hedquist, 342 B.R. 295
(B.A.P. 8th Cir. 2006), In re Dixon, 338 B.R. 383 (B.A.P. 8th Cir. 2006), In re Wallert, 332 B.R. 884
(Bankr. D. Minn. 2005), and In re LaPorta, 332 B.R. 879 (Bankr. D. Minn. 2005) (all enforcing
requirement of completion of pre-petition credit counseling as prerequisite for individual debtor’s
eligibility for bankruptcy relief); In re Heather Apts. L.P., ___ B.R. ___, 2007 WL 926299 (Bankr. D.
Minn. 2007) (debtor in “single asset real estate” Chapter 11 case is strictly obligated to commence
making payments of interest to mortgagee no later than 90 days after commencement of case, or
automatic stay against foreclosure terminates by operation of law; BAPCPA had no provision for
extension of deadline to commence payments). This one happens to impact on a constituency that
stands in opposition to a debtor. Fairness certainly does not frown on enforcing it just as strictly as
the others are to be. That puts an end to the motion at bar.11
distinct and separately-commenced proceeding, if the UST lost the one at bar. The UST tried to slip a
longish argument under § 707(b)(3) into his post-hearing briefing. However, the briefing was requested
solely to expand the parties’ arguments for the two issues raised by the motion and the Debtors’ response--
the § 704-based issue on the so-called “Ten Day Statement,” and the expense-oriented issue under the
presumption that had been treated in a previous ruling from this district, In re Hartwick, supra. The Debtors’
counsel did not address § 707(b)(3) in the post-hearing briefing, which was to be simultaneously filed. His
submission comported with the directive for post-hearing briefing; the UST’s did not. In no way could this
distinct theory of litigation be considered to have been presented for decision by consent despite its
absence from the original, formal motion. As framed and carried forward, then, this motion does not
implicate § 707(b)(3) on its merits, and the motion can be disposed of in its entirety on the ruling just made.
IT IS THEREFORE ORDERED that the United States Trustee’s motion for dismissal
of this case is denied, in its entirety.
BY THE COURT:
GREGORY F. KISHEL
CHIEF UNITED STATES BANKRUPTCY JUDGE