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In re Smith (Case No. 09-61696) 08/20/2010

The U.S. Trustee filed a motion to dismiss the Chapter 7 case for abuse under 11 U.S.C. § 707(b)(3)(B) and 11 U.S.C. § 707(b)(2). The Court held that even if the debtors were not permitted to deduct expenses arising from student loan payments, the Court would still not find abuse under 11 U.S.C. § 707(b)(3)(B) and/or 11 U.S.C. § 707(b)(2). The Court held the debtors were entitled to deduct the full amount of the allowance for vehicle payments even if they owned the vehicle free and clear of any liens, citing In re Hylton, 374 B.R. 579 (Bankr. W.D. Va. 2007).  Thus, the debtors' monthly disposable income under the Means Test was less than the required statutory minimum; accordingly, the Court concluded that it would not be an abuse under 11 U.S.C. § 707(b)(2) for the debtors to remain in Chapter 7.  Further, the Court also held that the debtors did not have sufficient income to fund a Chapter 13 plan and no other factors suggest abuse; therefore, the Court concluded that it would not be an abuse under 11 U.S.C. § 707(b)(3)(B) for the debtors to remain in Chapter 7.

Date: 
Friday, August 20, 2010
Category: 
Abusive Filings
Chapter 7 Issues
Discharge
Student Loan
Chapter: 
7