James Edward Mitchell and Kristin Sue Mitchell

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
JAMES E. MITCHELL and
KRISTIN S. MITCHELL,
DEBTORS
CASE NO.
10-00825-8-SWH
ORDER DENYING MOTION TO DISMISS
Pending before the court is the bankruptcy administrator’s motion to dismiss the debtors’
Chapter 7 case pursuant to 11 U.S.C. § 707(b)(3) on grounds that the totality of the debtors’
financial circumstances demonstrates abuse. 	The debtors filed a response in opposition to the
motion, and a hearing was held in Raleigh, North Carolina, on October 27, 2010. At the conclusion
of the hearing, the parties were given the opportunity to file additional arguments and citations of
authority, and the debtors filed a memorandum of law. The matter is ripe for disposition. For the
reasons that follow, the motion to dismiss will be denied.
BACKGROUND
The debtors filed a petition under Chapter 7 of the Bankruptcy Code on February 4, 2010.
The bankruptcy administrator filed a motion to dismiss for abuse on May 7, 2010, and the debtors
SO ORDERED.
SIGNED this 22 day of December, 2010.
________________________________________
Stephani W. Humrickhouse
United States Bankruptcy Judge
____________________________________________________________
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filed a response in opposition to the motion on June 3, 2010. 	The bankruptcy administrator
conducted a Rule 2004 examination on July 23, 2010, and the motion to dismiss was thereafter
scheduled for hearing.
The debtors’ Schedule I states that Mr. Mitchell is a computer engineer with Sony-Ericsson
and earns $7,833.32 per month in gross wages, with monthly net wages of $5,613.80. At the time
the Schedule I was filed, Mrs. Mitchell was employed and earning $1,293.37 per month in gross
wages, with monthly net wages of $1,114.66. Their combined monthly net wages totaled $6,728.46.
The debtors have two sons, ages 19 and 9. The debtors moved from North Carolina to Georgia in
July of 2010, but their older son remains in Raleigh, where he attends Wake Technical Community
College.
The debtors’ original Schedule J listed $356.95 per month for utilities, including cell phones,
internet, cable and satellite radio. The schedule includes $1,250 for food, $400 for transportation,
$250 for entertainment and recreation, $60 for pet care, and $1,100 for “savings” per month. The
Schedule J showed monthly net income of $19.85. The bankruptcy administrator stated during the
hearing that the $1,100 allocation for savings, combined with the debtors’ above-median income,
was a red flag that prompted closer review. 	Upon that review, the bankruptcy administrator
concluded that several of the debtors’ other expenses – specifically, utilities, food, entertainment,
and transportation – were also “on the high end.”
On September 15, 2010, after their move to Georgia, the debtors provided to the bankruptcy
administrator an amended (though unfiled) Schedule J, which removed the $1,100 “savings”
allocation. 	The updated Schedule J was introduced at the hearing as Exhibit 1. 	Although the
debtors’ allocation for savings has been removed, other expenses have increased, and the updated
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Schedule J shows a monthly net income of $13.55. 	The monthly expenses for food and for
entertainment and recreation remain the same. The cell phone, internet, cable, and satellite radio
expenses have increased to $382 ($25 increase), the debtors’ transportation cost increased from $400
to $600 ($200 increase), and the debtors are now paying $325 toward their older son’s college, car
insurance, and living expenses. The debtors’ housing expense is now $1,550 ($292 increase) and
their electricity and heat costs are $475 ($295 increase).
At the hearing, the debtors provided testimony regarding the events that led up to the filing
of their Chapter 7 petition. In January 2008, after fourteen years of employment, Mr. Mitchell was
laid off from his job with Lear in Detroit, Michigan. He received no severance pay and was without
income for two months. The debtors owned a home in Detroit that was secured by a first deed of
trust in the amount of $154,000, and a second deed of trust in the amount of $60,000. At the time
the petition was filed the house had decreased in value to $115,000. At one point, the house had
been valued at over $180,000, but the shutdown of a General Motors plant significantly reduced
property values. 	The debtors will surrender the Michigan property in their plan. 	Mr. Mitchell
received a job offer from Sony-Ericsson in March 2008, pursuant to which the family moved to
Raleigh. He testified that the move resulted in his older son leaving his high school at the end of
his junior year.
Prior to the loss of his job, Mr. Mitchell testified, the debtors were able to pay their bills.
In 2008, in connection with the job loss, move, and loss of equity in their home, the debtors incurred
increasing consumer debt. The interest rates were high, then shifted to default rates. The debtors
established a creditor payment plan through Percels & Associates, LLC, a debt consolidation
organization, to pay $900 per month to creditors. The debtors contributed $900 per month from
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November 2008 to December 2009, but one of the creditors filed a collection action against
Mr. Mitchell in Wake County District Court seeking recovery of approximately $26,000.
Mr. Mitchell characterized the lawsuit as the “final straw” precipitating the debtors’ bankruptcy
filing in February 2010.
In the spring of 2010, Sony-Ericsson announced a relocation to Atlanta, Georgia.
Mr. Mitchell was unwilling to risk losing his job yet again and agreed to move. At the end of July
2010, shortly after the Rule 2004 exam, the debtors and their younger son moved to the Atlanta area.
The debtors’ elder son, having enrolled at Wake Technical Community College, remains in the
Raleigh area. Mr. Mitchell testified that his son has an apartment, a steady job at Kroger, and a
committed girlfriend. In light of the family’s recent move just before their son’s senior year of high
school, his successful acclimation to Raleigh, and his college enrollment, the debtors support their
son’s decision to remain in Raleigh.
The debtors rented a four-bedroom home in Cummings, Georgia, which is north of Atlanta.
Mr. Mitchell testified that he uses the fourth bedroom as an office, to provide functional space for
the 16-17 computers he uses in connection with his work as Sony’s only IT technician in the Atlanta
area, and to provide a place for the debtors’ son to stay when he comes to visit. Approximately six
or seven of the computers belong to Sony. 	Mr. Mitchell stated that a significant portion of the
couple’s debt was incurred for the purchase of electronics, although, he testified, he has not
purchased any additional electronic equipment in the last two years. Mr. Mitchell did not go to
college and testified that his proficiency with electronic systems is self-taught and facilitated in large
part by his longstanding practice of acquiring electronic systems and learning everything he can
about how they work. Mrs. Mitchell is currently employed at Target working 15-20 hours a week,
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for which she now earns approximately $600-800 per month, though she has asked for more hours.
The debtors surrendered their 2007 Ford Escape and are now sharing a single vehicle, a 2009 Ford
Fusion.
During the hearing the debtors testified, credibly, that the original $1,100 allocation for
“savings” in their Schedule J was indicative of a goal to conserve funds but that the debtors did not
ever retain that amount, or any other significant amount, as savings. Instead, the debtors testified,
they devoted what funds they had to payment of creditors. 	When asked where that amount went,
if not to savings, the debtors testified that whatever they had went toward the debt consolidation
effort, creditors’ bills, and living expenses.
The $1,100 allocation aside, the bankruptcy administrator contends that the debtors’
amended Schedule J lists expenses for pet care, utilities, entertainment and recreation, transportation,
and food that still are all on the “high side,” and argues further that the debtors should not allocate
approximately $325 per month toward car insurance and general support of their college-age son.
Generally speaking, the bankruptcy administrator is of the view that above-median debtors capable
of earning approximately $100,000 per year should be capable of paying something to creditors in
a Chapter 13 plan.
In response, the debtors’ testimony focused on many of the particular issues cited by the
bankruptcy administrator. They testified, for example, that they have curtailed their food expenses
to approximately $600 per month for food only (not including other household items), that they were
able to save about $65 a month by switching to a Dish network for television, and that their
entertainment expenses are primarily limited to occasional movies and meals at fast food restaurants.
To generalize again, the debtors take the position that their many recent changes in employment,
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income, and living arrangements have simply used up all the income they have, and that they are
doing their best to live frugally and to satisfy creditors. They maintain that they have appropriately
sought Chapter 7 relief and, through it, a new start.
DISCUSSION
The bankruptcy administrator brought this motion under § 707(b)(3)(B). Section 707(b)(1)
grants the court authority to dismiss a Chapter 7 case if it finds that the granting of relief would be
an abuse of the provisions of the chapter. Section 707(b)(3) provides guidance to the court in that
determination by directing it to consider “whether the debtor filed the petition in bad faith or the
totality of the circumstances . . . of the debtor’s financial situation demonstrates abuse.” 	The
bankruptcy administrator has the burden of proving abuse pursuant to § 707. In re Lipford, 397 B.R.
320 (Bankr. M.D.N.C. 2008); In re Cribbs, 387 B.R. 324 (Bankr. S.D. Ga. 2008). The bankruptcy
administrator has conceded that the debtors have filed the petition in good faith, and is proceeding
under § 707(b)(3)(B) on grounds that the debtors’ alleged ability to pay a meaningful dividend to
creditors itself, after passage of BAPCPA, supports a finding of abuse.
For almost two decades, courts in the Fourth Circuit have evaluated motions to dismiss under
§ 707(b) using the “totality of the circumstances” test set forth in Green v. Staples, 934 F.2d 568 (4th
Cir. 1991). In Green, the court set forth the following five factors as relevant to courts’ evaluations
of whether a filing is abusive:
The “totality of the circumstances” approach involves an evaluation of factors such
as the following:
(1) 	Whether the bankruptcy petition was filed because of sudden
illness, calamity, disability, or unemployment;
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(2) Whether the debtor incurred cash advances and made consumer
purchases far in excess of his ability to repay;
(3) 	Whether the debtor’s proposed family budget is excessive or
unreasonable;
(4) Whether the debtor’s schedules and statement of current income
and expenses reasonably and accurately reflect the true financial
condition; and
(5) Whether the petition was filed in good faith.
Green, 934 F.2d at 572. The Green court noted that “exploring these factors, as well as the relation
of the debtor’s future income to his future necessary expenses, allows the court to determine more
accurately whether the particular debtor’s case exemplifies the real concern behind Section 707(b):
abuse of the bankruptcy process by a debtor seeking to take unfair advantage of his creditors.” Id.
BAPCPA amended the statute that is the subject of Green in two ways. First, it removed the
word “substantial” from the phrase “substantial abuse.” 	In addition, it removed language that
established a “presumption in favor of granting the relief requested by the debtor.” The bankruptcy
administrator believes that Green’s test has been weakened by these amendments and that now,
because Congress removed the word “substantial” from the statutory language, the statute implies
a “lower standard of review” in which “ability to pay a dividend to creditors is the most important
factor.” Bankruptcy Admin.’s Mot. to Dismiss at ¶ 7. According to the bankruptcy administrator,
this court should align with a recent holding of the Bankruptcy Court for the District of South
Carolina, which held that “while the totality of all of the debtor’s financial circumstances must be
examined, the ability to pay a significant dividend to creditors and the failure to do so standing alone
can be an abuse of chapter 7, absent mitigating factors.” In re Calhoun, 396 B.R. 270, 276 (Bankr.
D.S.C. 2008).
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The debtors counter that the change to the statute is not significant, and that Green remains
good law. In fact, the debtors argue, not only has Green not been overturned, it has been elevated
as a “valuable touchstone” for construing the statute:
For purposes of their application, the two grounds for dismissal under
§ 707(b)(3) are best understood as a codification of pre-BAPCPA case law, with
there existing an abundance of reported cases wherein, prior to the passage of
BAPCPA, courts dismissed Chapter 7 cases based upon both a debtor’s “bad faith”
and where the “totality of the circumstances” revealed that the debtor was
undeserving of Chapter 7 relief. . . . It is also a rule of construction that an
amendment to a statute is not to be construed as abolishing precedent set in prior
case law unless such an alteration is clear from the words and context of the
amendment. Finally, it is a closely related fundament of statutory construction that,
where Congress codifies prior case law, those prior holdings remain not only good
law, but should serve as a valuable touchstone for interpreting the statute.
In re Oot, 368 B.R. 662, 665-66 (Bankr. N.D. Ohio 2007) (citations and footnote omitted).
The court agrees with the debtors that Green remains good law. Although the statute has
been modified by BAPCPA, it remains appropriate to apply pre-BAPCPA concepts for determining
abuse under § 707(b)(3). See, e.g., In re Hornung, 425 B.R. 242, 249 (Bankr. M.D.N.C. 2010)
(“This court has held that pre-BAPCPA cases, such as Green, remain instructive in an analysis
pursuant to new Section 707(b)(3).”); Lipford, 397 B.R. at 327 (same); In re Cribbs, 387 B.R. 324,
334 (Bankr. S.D. Ga. 2008) (“[The court] reaffirm[s] pre-BAPCPA authority in this District and
find[s] that in order for the United States Trustee to satisfy its burden under the 707(b)(3)(B)
“totality of the circumstances” test, the Trustee must show more than just Debtors’ ability to pay.”);
see also In re Barbour, Case No. 09-00553-8-RDD, slip op. at 3 (Bankr. E.D.N.C. Sept. 18, 2009)
(“BAPCPA includes the judicially-created totality of the circumstances test . . . .”).
The bankruptcy administrator emphasizes the differences in the language of this statute as
it now exists, as compared to the pre-BAPCPA version. The omission of the word “substantial” in
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the amended statute signifies, according to the bankruptcy administrator, that the standard for
finding abuse is now lower than it was prior to the passage of BAPCPA. 	The bankruptcy
administrator noted that prior to BAPCPA’s passage, he would not have pursued a § 707(b)(3)(B)
motion in this case. However, because he believes that with “minor” adjustments the debtors can
afford to pay approximately $500 per month to unsecured creditors, he contends that the amended
statute requires that they do so.
The debtors argued during the hearing that “substantial abuse” always means “just plain old
abuse,” in that if a bankruptcy court finds an abuse of Chapter 7, that finding is – and has been, all
along – sufficient to warrant dismissal under § 707(b). The debtors reasoned that no bankruptcy
court, if it found any level of abuse, would ever allow a Chapter 7 case to proceed, so deletion of
the word “substantial” has no real effect on a court’s assessment of the facts in each case or
application of Green’s totality of the circumstances analysis. The debtors’ arguments are supported
by Collier on Bankruptcy, which opines that it is “doubtful that the grounds for dismissal will
change much, despite the change in the standard from “substantial abuse’ to ‘abuse.’ Few, if any,
courts permitted a case to go forward under prior law if they found it abusive. The general view
appeared to be that any abuse was substantial and grounds for dismissal.” Collier on Bankruptcy
¶ 707.04[3][b], at 707-43 (Alan N. Resnick & Henry J. Sommer eds. 16th ed.) 	Some cases,
however, have held that BAPCPA lowered the level of abuse necessary for dismissal. See Lipford,
397 B.R. at 327; In re Mestemaker, 359 B.R. 849, 856 (Bankr. N.D. Ohio 2007) (“Congress has
clearly lowered the standard for dismissal in changing the test from ‘substantial abuse’ to ‘abuse.’”).
Among those courts that consider the standard to be lower, many still find pre-BAPCPA cases
“instructive.” See, e.g., Lipford, 397 B.R. at 327; In re Mondragon, 2007 WL 2461616 *1 (Bankr.
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D.N.M. 2007); In re Colgate, 370 B.R. 50, 56 (Bankr. E.D.N.Y. 2007) (determining that standard
to find cause to dismiss is lower, but same tests still apply).
The question of Green’s continuing vitality in this circuit is an important one, and the court
agrees that whether the BAPCPA amendments require that the factors be weighed differently is
worthy of discussion. This case, though, does not give the court a basis on which to weigh in on that
debate. As is more specifically discussed below, this case does not provide a framework in which
to flesh out the impact, if any, of BAPCPA’s amendments on the Green totality of the circumstances
test. The court ultimately concludes that the debtors’ filing would pass both a “full-strength” and
“weakened” Green test, because the filing does not support a finding of any abuse at all. The court
also concludes that the debtors have no meaningful ability to pay creditors, so that if such were the
primary criteria, as has been suggested by the bankruptcy administrator, then, similarly, no abuse
would be found.
Because the Green analysis does apply, the court will review each factor in turn.
1. Whether the bankruptcy petition was filed because of sudden illness, calamity, disability,
or unemployment: The evidence is ample that these debtors have been uprooted twice in the past two
years – once due to layoff and then again due to transfer. They valiantly attempted to resolve their
debts short of bankruptcy through a formal debt repayment plan, but were unsuccessful.
Mrs. Mitchell has diligently worked at part-time jobs to enhance the family income, but has found
that work inconsistent, and it has yielded lower income than anticipated. The court concludes that
the 	bankruptcy petition was filed as a result of a classic “domino” series of events which,
cumulatively, disrupted the debtors’ established financial patterns and then precipitated the initiation
of a lawsuit against them, despite commendable efforts to avoid it.
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2. Whether the debtor incurred cash advances and made consumer purchases far in excess
of his ability to repay: 	Mr. Mitchell testified that he had not made any substantial consumer
purchases in the past two years and that his purchases of computer equipment prior to that time were
made when he had the ability to pay and also were necessary to his work. 	The court finds that the
debtors incurred cash advances and made consumer purchases that proved to be beyond their ability
to repay only when their financial circumstances changed. There was no egregious accumulation
of consumer purchases.
3. Whether the debtor’s proposed family budget is excessive or unreasonable: In response
to the court’s question, the bankruptcy administrator identified the following areas of the debtors’
expenses as being “on the high side”: food, transportation, entertainment and recreation, utilities,
pet care, housing, television service, and the approximately $325 per month allocated toward the car
insurance and living expenses of the debtors’ elder son. Basically, most areas of the debtors’ listed
expenses appeared, to the bankruptcy administrator, to present some opportunity to cut costs. The
bankruptcy administrator projected that the debtors could, with further belt-tightening, dedicate $500
per month toward repayment of approximately $106,000 in unsecured debt. 	In other words,
throughout all of these categories, the bankruptcy administrator believes that an additional $175 can
be extracted which, combined with the support given to the elder son, would allow a meaningful
distribution to creditors.
An appropriate method of evaluating whether a debtor has the ability to repay his or her
debts is to determine what amount of that indebtedness could be repaid in a hypothetical Chapter
13 plan. In re Lipford, 397 B.R. at 327-28; citing Shaw v. U.S. Bankr. Adm’r (In re Shaw), 310
B.R. 538, 541 (Bankr. M.D.N.C. 2004). As the Lipford court noted, “[a]lthough a number of courts
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have considered the percentage of total indebtedness that could be repaid through a hypothetical
Chapter 13 plan, there is no bright line test.” Lipford, 397 B.R. at 328 & n.4, citing In re Behlke,
358 F.3d 429, 437 (6th Cir. 2004) (finding substantial abuse where debtor could pay a dividend of
14% to 23%); Shaw, 310 B.R. at 342 (paying dividend of 29% over 36 months constituted
significant portion of debtor’s debts); In re Jarrell, 189 B.R. 374, 376 (Bankr. M.D.N.C. 1995)
(finding substantial abuse where debtors could pay 80% of debt over 36 months); but see In re
Stewart, 383 B.R. 429, 435 (Bankr. N.D. Ohio 2008) (finding no abuse where debtor potentially
could pay 35% over 60 months).
In this case, if the court were to find that $500 per month was available to fund a Chapter 13
plan, the dividend to unsecured creditors in a five-year plan would be less than 28%, because the
$106,228.54 in listed unsecured debts would be substantially increased by the deficiency claims of
Chase Manhattan Mortgage Corp. and Irving Home Equity, after surrender of the Michigan home.
Using the same anticipated unsecured pool and plan duration, the dividend would be less than 18%
if the court were to find that the debtors’ funding of their college’ age son was inappropriate,
creating an allocation of $325 per month to the plan. Finally, if the court were to find that payments
to the college-age son were appropriate, but that further belt tightening elsewhere would yield $175
per month for payments to creditors, the dividend would be less than 10%. 1
The court finds that the debtors’ proposed family budget is reasonable. It is based on the
debtors’ current income and expenses as of the fall of 2010, though the debtors’ finances were at that
1 Ultimately, it will not be necessary to determine whether possible dividends in the range
of 10% to 28% constitute an ability to repay that, under the circumstances, supports a finding of
abuse, because the court concludes based on the facts before it that the debtors’ expenses are
reasonable and no consistent disposal income exists to fund a Chapter 13 plan.
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time, and had previously been, in a state of flux. 	There may well be additional fluctuations,
particularly with regard to Mrs. Mitchell’s retail hours, which will likely be affected both positively
and negatively by seasonal employment swings. The court is not persuaded that, in light of those
fluctuations, the debtors could consistently allocate $175 per month to a Chapter 13 plan (the
amount of excess calculated by the bankruptcy administrator, exclusive of the contribution to their
son’s support). 	Additionally, the court questions whether, even if the $175 per month were
consistently available, such a sum would provide creditors with a meaningful distribution in a
Chapter 13 case. 	Therefore, at most what is at issue is the debtor’s contribution to their college-
age son, and it is that component which forms the basis for the bankruptcy administrator’s greatest
challenge to the reasonableness of the debtors’ budget. Mr. Mitchell testified that the $325 amount
on the amended Schedule J is the monthly average (based on two months) that the debtors gave to
their 19-year old son once they moved to Atlanta, leaving him to reside in Raleigh. This amount
includes $140 for auto insurance. The authorities are split on whether debtors may include in their
monthly expenses assistance for children whom the debtors no longer have a legal obligation to
support, because the children have reached the age of majority.
This court has previously acknowledged that “[a]dult children may be considered dependents
of the debtors where they are relatively young adults studying for their baccalaureate degrees.” In
re Badake, Case No. 05-05272-8-JRL (Bankr. E.D.N.C. 2006) (Order dated Feb.15, 2006). In that
case, Judge Leonard relied upon the ruling in In re Gonzales, 157 B.R. 604, 610-611 (Bankr. E.D.
Mich. 1993), in which that court upheld a $400 per month payment to a 19-year-old daughter and
a $300 per month payment to a 21-year-old daughter as reasonably necessary expenses for the
support of full-time college students. 	Id. at 610-11. 	“At the very least,” the Gonzales court
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reasoned, “just as society accepts as reasonable an adult child’s assumption of the moral obligation
to support an aged or infirm parent, it now accepts as reasonable a parent’s own feeling of the moral
imperative of assisting a willing child to obtain a higher education.” 	Id. at 610; see also In re
Tefertiller, 104 B.R. 513 (Bankr. N.D. Ga. 1989) (denying trustee’s motion to dismiss under
§ 707(b) where debtor paid college expenses of 21-year old daughter); In re Wegner, 91 B.R. 854
(Bankr. D. Minn. 1988) (holding that debtor’s support of adult children and grandchildren was not
substantial abuse).
In this case, the debtors’ 19-year-old son is working to support himself as he attends classes
at Wake Technical Community College, and the $325 per month that debtors provide supplements
the money he earns on his own so that he may have auto insurance and enough money for rent and
other necessary living expenses. This situation can be distinguished from cases that have held that
debtors may not support adult children. 	Cf. In re Seymour, 2004 Bankr. LEXIS 2389 (Bankr.
M.D.N.C. 2004) (debtors were providing $650 each month for an adult child attending college in
addition to other expenses the court deemed to be extravagant; the court concluded that but for these
expenses, debtors would have had $2,000 a month to pay to unsecured creditors in a Chapter 13
plan).
The amount of support is not unreasonable and the debtors are not engaging in any abuse of
the bankruptcy system by continuing to offer some small amount of financial support to a teenage
son in college. The Bankruptcy Code recognizes that there are family obligations just as there are
statutory and financial ones, and that the purpose of the totality of the circumstances analysis is to
assess the unique facts of the case before the court. 	It would be the rare case where family
circumstances do not affect expenses, and voluntary familial ones are not, by virtue of their personal
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nature, automatically “suspect.” 	In conclusion, the debtors’ proposed budget, inclusive of the
monthly stipend to their son and those items designated by the bankruptcy administrator as being
on the “high end,” is not excessive or unreasonable.
4. Whether the debtor’s schedules and statement of current income and expenses reasonably
and accurately reflect the true financial condition: 	Both the bankruptcy administrator and the
debtors acknowledge that it is difficult to tell if the debtors’ current schedules accurately reflect their
actual income and expenses, given that the debtors’ financial and personal situation has been in a
state of flux since before the petition was filed. The debtors have moved twice in the past few years,
and Mrs. Mitchell’s income recently decreased while also becoming more irregular. The court can
conclude, however, that the debtors have done the best they can to report their income and expenses
and there is no indication that they have failed to report any information that would be important to
this analysis.
5. Whether the petition was filed in good faith: The bankruptcy administrator has alleged
no bad faith on the part of the debtors and there is no evidence of any bad faith in the record.
Even if the court were to accept the bankruptcy administrator’s argument that the ability to
pay something to creditors is, itself, the determining factor in assessing whether a Chapter 7 case
is abusive, it would conclude that the debtors simply do not have sufficient and consistently
available excess funds with which to do so. Assuming a wholly hypothetical spectrum ranging from
“substantial” abuse to “regular” abuse to abuse in negligible amounts, in this case, there is simply
no basis on which to find any abuse at all.
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Based on all of the foregoing, application of Green’s totality of circumstances test results in
the inescapable conclusion that no abuse exists in this case. 	The court reaches this conclusion
without the need of a presumption in the debtors’ favor.
CONCLUSION
Under § 707(b)(3)(B), the totality of the circumstances of the debtors’ financial situation do
not demonstrate abuse. For the foregoing reasons, the bankruptcy administrator’s motion to dismiss
for abuse is hereby DENIED.
END OF DOCUMENT
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