David Scott Sandifer and Trudy Lee Sandifer

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
DAVID and TRUDY SANDIFER, No. 07-11227
Debtor(s).
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Memorandum on Motion to Dismiss
_________________
Section 704(b)(1)(A) of the Bankruptcy Code requires the U.S. Trustee to file a timely statement as
to whether the debtor’s case would be presumed to be an abuse under § 707(b). The U.S. Trustee
equivocated in this Chapter 7 case, filing a statement which said, “Having reviewed the documents, if any,
filed by the debtor and any additional documents provided to the United States Trustee, the United States
Trustee is currently unable to determine whether the debtor's case would be presumed to be an abuse under
Section 707(b) of the Bankruptcy Code. Filed by U.S. Trustee.”
The U.S. Trustee filed a motion to dismiss this case based on a presumption of abuse and the totality
of the circumstances. The debtors seek summary denial of the motion on the grounds that an affirmative
determination of presumptive abuse is a prerequisite to a dismissal motion by the U.S. Trustee under §
707(b)(2).
The three published cases on the issue all agree that an unequivocal determination of abuse is a
prerequisite to the U.S. Trustee’s motion. In re Robertson, 370 B.R. 804 (Bkrtcy.D.Minn. 2007); In re
Byrne, 376 B.R. 700, 703 (Bkrtcy.W.D.Ark 2007); In re Perrotta, 378 B.R. 27 (Bkrtcy.D.N.H. 2007). A
Entered on Docket
March 03, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 07-11227 Doc# 24 Filed: 03/03/08 Entered: 03/03/08 14:02:52 Page 1 of 2

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1As the court noted in In re Byrne, 376 B.R. at 703: “The ten day statement under § 704(b)(1) is
superfluous to a filing under § 707(b)(3) if a determination has otherwise been made that a presumption of
abuse does not arise. If the presumption does not arise, then there is no basis for dismissal under § 707(b)(2).
But the code permits the UST to seek dismissal in the alternative under § 707(b)(3) for reasons other than a
presumed abuse. Even though the UST failed to file a definitive statement as required under § 704(b)(1), the
Court finds that she still has the right to proceed under § 707(b)(3) based on the debtor's representation that a
presumption does not arise in this case.”
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single unpublished decision supports the U.S. Trustee’s position that equivocation is not fatal.
The court elects to follow the majority for two reasons. First, (as with many provisions of the 2005
amendments to the Bankruptcy Code), well-established rules of statutory construction do not really help the
court resolve the issue; the parties instead resort to a battle of dictionaries. Second, the court has, at the
urging of the U.S. Trustee, been applying the new amendments strictly against debtors for over two years. If
there is any fairness to be read into the Bankruptcy Code at all, then the occasional provision which protects
debtors ought to be strictly construed as well.
For the foregoing reasons, the debtors’ objection to the motion will be sustained insofar as the
debtor’s seek summary denial of the portion of the motion based the presumption of abuse under § 707(b)(1)
and (2). Further hearings will be held as necessary to adjudicate that part of the motion based on the totality
of the circumstances pursuant to § 707(b)(3).1
An order will be entered when all issues have been adjudicated. This decision is subject to
reconsideration if an appellate decision on the issues discussed above is rendered before an order has been
entered.
Dated: March 3, 2008
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 07-11227 Doc# 24 Filed: 03/03/08 Entered: 03/03/08 14:02:52 Page 2 of 2