Green, In re

• Decision Date: 05 June 1991
• Docket Number: No. 90-1731,90-1731
• Citation: 934 F.2d 568
• Parties: , 24 Collier Bankr.Cas.2d 1911, 21 Bankr.Ct.Dec. 1287, Bankr. L. Rep. P 74,015 In re Walter GREEN, Debtor. Walter GREEN, Plaintiff-Appellant, v. A. Gray STAPLES, Jr., Assistant United States Trustee, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 568

934 F.2d 568

60 USLW 2046, 24 Collier Bankr.Cas.2d 1911,

21 Bankr.Ct.Dec. 1287, Bankr. L. Rep. P 74,015

In re Walter GREEN, Debtor Walter GREEN, Plaintiff-Appellant, v. A. Gray STAPLES, Jr., Assistant United States Trustee Defendant-Appellee.

No. 90-1731.

United States Court of Appeals Fourth Circuit.

Argued Feb. 6, 1991.

Decided June 5, 1991.

Robert J. Harris, argued, Baltimore, Md., for plaintiff-appellant.

Edmund Alan Goldberg, Office of The U.S. Trustee, Baltimore, Md., (Gail Goldner Green, Office of The U.S. Trustee, Baltimore, Md., John E. Logan, General Counsel, Martha L. Davis, Executive Office For U.S. Trustees, Washington, D.C., on brief), for defendant-appellee.

Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and BUTZNER, Senior Circuit Judge.

ERVIN, Chief Judge:

Walter Green's petition for bankruptcy relief was denied on the ground that the petition constituted "substantial abuse" of Chapter 7. Green appeals the Bankruptcy Court's interpretation of 11 U.S.C. Sec. 707(b), claiming that the fact that he was found to have income in excess of his necessary expenses is not, by itself, sufficient to support a finding of substantial abuse. We agree, and therefore we reverse and remand this case to the district court for proceedings consistent with this opinion.

I.

On March 17, 1989, Walter Green filed a voluntary petition in the Bankruptcy Court for the District of Maryland for relief under Chapter 7 of the Bankruptcy Code. The United States Trustee, upon reviewing Green's case, determined that Green had income of $638 a month in excess of the income required to pay his necessary expenses. Accordingly, the Trustee filed a motion to dismiss Green's Chapter 7 case on the ground that granting a discharge under Chapter 7 would be a substantial abuse of the Chapter pursuant to 11 U.S.C. Sec. 707(b).

The Bankruptcy Court conducted a hearing at which Green testified that he had $40,000 in unsecured debt, had monthly income of at least $638 in excess of his necessary expenses, and was currently employed as a bus driver with Mass Transit, the same job he had held for the past 13 years. Nevertheless, Green claimed that, because of a leg injury which had caused him to be out of work for six months, he had fallen far behind in his debt payments. His 1988 income was $46,000, much of which Green attributed to substantial overtime pay. Green stated that he would not be able to work overtime in the future if his leg continued to "stiffen up." Without overtime, Green estimated that his annual pay in 1989 would be only $26,000.

It was also adduced at the hearing that Green had no dependents and that he had filed for bankruptcy once previously, in 1973. ¹ His largest current debt, to a credit union for $21,900, had been accumulating for 10 years. The court noted that the schedule of unsecured claims that Green submitted lacked detail, but that many creditors were department stores, including elegant ones like Saks Fifth Avenue and Miller Brothers, jewellers, and consumer loan companies.

On August 17, 1989, the Bankruptcy Court issued an opinion granting the Trustee's motion, with leave to Green to convert his Chapter 7 case into a Chapter 13 filing within 30 days of the date of the Order. The basis for the court's dismissal of Green's Chapter 7 petition was that Green's possession of income in excess of his necessary expenses was sufficient, standing alone, to constitute substantial abuse of the provisions of Chapter 7 under 11 U.S.C. Sec. 707(b). On appeal, the United States District Court for the District of Maryland affirmed the Bankruptcy Court's dismissal of Green's petition. The district court held that the Bankruptcy Court acted properly in finding substantial abuse on the sole ground of Green's excess monthly income. Green appeals.

II.

Green's appeal requires us to interpret a provision of the Bankruptcy Code and to review the Bankruptcy Court's findings of fact. The question of what constitutes "substantial abuse" for purposes of 11 U.S.C. Sec. 707(b) is a matter of law, to be reviewed de novo. In re Stenersen Corp., 61 B.R. 702, 705 (Bankr.D.Md.1986). With respect to the Bankruptcy Court's findings of fact, the appropriate standard of review is whether such findings are clearly erroneous. Stenersen, supra, 61 B.R. at 705 (citing Bankruptcy Rule 8013). A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In re First Federal Corp., 42 B.R. 682, 683 (Bankr.W.D.Va.1984) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)).

Courts have been grappling with the issue of what constitutes "substantial abuse" for purposes of Section 707(b) of the Bankruptcy Code since 1984. In that year Congress amended the 1978 Bankruptcy Code to add, inter alia, Section 707(b) to the preexisting Section 707(a) on dismissal of Chapter 7 petitions. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 355 (1984) (codified as amended in scattered sections of 11 U.S.C. and 28 U.S.C. (1982)). Section 707(b) reads as follows:

(b) After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor.

11 U.S.C.A. Sec. 707(b) (West Supp.1990).

Section 707(b) is one of several consumer credit amendments Congress added to the Code in response to pressure from retailers and consumer lenders who complained of an increasing number of Chapter 7 bankruptcies being filed by non-needy debtors. Prior to 1984, debtors enjoyed a virtually unfettered right to a "fresh start" under Chapter 7, in exchange for liquidating their nonexempt assets for the benefit of their creditors. ² Section 707(b) introduced an additional restraint upon a debtor's ability to gain Chapter 7 relief, by allowing a bankruptcy court to deal equitably with the situation in which an unscrupulous debtor seeks to gain the court's assistance in a scheme to take unfair advantage of his creditors. Unfortunately, Congress did not define the term "substantial abuse" in the text of the 1984 amendments to the Code. Moreover, no committee reports exist on the final version of the amending Act. The lone piece of legislative history which may give some insight into Congressional intent in enacting Section 707(b) is the Senate report on S. 445, 98th Cong., 1st Sess. (1983), an earlier draft of the 1984 amendments. This report states that "if a debtor can meet his debts without difficulty as they come due, use of Chapter 7 would represent a substantial abuse." S.Rep.No. 98-65, 98th Cong., 1st Sess. 54 (1983). ³ This definition is not especially helpful, however, since it neither explains what constitutes meeting one's debts without difficulty nor attempts to reconcile itself to the previous legislative history on Section 707(a), which states in pertinent part:

This section does not contemplate ... that the ability of the debtor to repay his debts in whole or in part constitutes adequate cause for dismissal.

S.Rep. No. 95-989, 95th Cong., 2d Sess. 94, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5880. ⁴

It is not surprising that Congress was not anxious to explicitly define the permissible grounds for substantial abuse dismissal. Section 707(b) reflects the tension between the fundamental policy concern of the Bankruptcy Code, granting the debtor an opportunity for a fresh start, and the interest of creditors in stemming abuse of consumer credit. The ambiguity of the statutory language is no doubt a reflection of Congress's inability to agree on a definition of substantial abuse which would encompass these countervailing considerations in all situations. Nevertheless, in unsuccessfully attempting to carve out such a definition, Congress considered and rejected the use of a threshold future income or ability to repay test (known as "mandatory Chapter 13") as a qualification for Chapter 7 relief for consumer debtors. ⁵ In re Deaton, 65 B.R. 663, 665 (Bankr.S.D.Ohio 1968).

Appellee Staples, the United States Trustee (the Trustee) argues that we should adopt the per se rule embraced by the Bankruptcy Court below and affirmed by the district court, to the effect that a debtor's possession of income in excess of his necessary expenses, standing alone, constitutes substantial abuse of Chapter 7 justifying dismissal. The primary source of this rule, for both of the lower courts, was a recent Ninth Circuit decision, In re Kelly, 841 F.2d 908 (9th Cir.1988). A few bankruptcy courts in other jurisdictions appear to have adopted this per se rule. See In re Edwards, 50 B.R. 933 (Bankr.S.D.N.Y.1985) (debtors were discharged of debts under Chapter 7, but court enunciated rule that ability to pay 100% of debts in three years per se constitutes substantial abuse); In re Struggs, 71 B.R. 96 (Bankr.E.D.Mich.1987) (holding that if a debtor can repay a meaningful part of his debt in a Chapter 13 plan, his Chapter 7 petition should be dismissed). See also Waites v. Braley, 110 B.R. 211, 217 (E.D.Va.1990) (district court, while holding that debtor's ability to pay is a primary, but not the only, factor in the substantial abuse determination, states in passing that "emerging rule" is that this factor may by itself preclude Chapter 7 discharge). ⁶

We are not persuaded by the Kelly court's reasoning. The court, citing a string of cases standing for the proposition that the debtor's ability to repay is a principal factor to be considered in...