in re:William Behlke v.

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 20, 2004
• Docket: 02-4306
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 In re Behlke No. 02-4306 ELECTRONIC CITATION: 2004 FED App. 0053P (6th Cir.) File Name: 04a0053p.06 Before: BOGGS, Chief Circuit Judge; GUY, Circuit Judge; HOOD, District Judge.* UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT COUNSEL _________________ ARGUED: Stephen D. Hobt, Cleveland, Ohio, for In re: WILLIAM M. BEHLKE X Appellants. P. Matthew Sutko, DEPARTMENT OF - JUSTICE, Washington, D.C., for Appellee. ON BRIEF: and DINA E. BEHLKE , Stephen D. Hobt, Cleveland, Ohio, for Appellants. Debtors, - P. Matthew Sutko, DEPARTMENT OF JUSTICE, - No. 02-4306 - Washington, D.C., for Appellee. _______________ > , _________________ - WILLIAM M. BEHLKE and - OPINION DINA E. BEHLKE , - _________________ - Appellants, - RALPH B. GUY, JR., Circuit Judge. Debtors, William M. - and Dina E. Behlke, appeal from the decision of the - Bankruptcy Appellate Panel (BAP) affirming the bankruptcy v. - court’s order granting the Trustee’s motion to dismiss this - voluntary Chapter 7 bankruptcy petition for “substantial SAUL EISEN, United States - abuse” under 11 U.S.C. § 707(b). Section 707(b) provides Trustee, - that the bankruptcy court, on its own motion or the motion of Appellee. - the United States Trustee, “may dismiss a case filed by an N individual debtor under this chapter whose debts are primarily Appeal from the United States Bankruptcy Court consumer debts if it finds that the granting of relief would be for the Northern District of Ohio at Akron. a substantial abuse of the provisions of this chapter. There No. 01-53608—Marilyn Shea-Stonum, Bankruptcy Judge. shall be a presumption in favor of granting the relief requested by the debtor.” Argued: January 28, 2004 The debtors argue that the bankruptcy court erred in deciding to include 401K contributions as “disposable Decided and Filed: February 20, 2004

* The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by designation.

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income” for purposes of determining the debtors’ ability to license to practice law in Ohio and then searching pay and in concluding that there was substantial abuse for employment. warranting dismissal under § 707(b). The debtors also argue that the BAP incorrectly applied an abuse of discretion 4. In February 1997, Mr. Behlke obtained employment standard in reviewing the bankruptcy court’s decision. After with Rubbermaid in its Office of Corporate Counsel. a review of the record and the applicable law, we affirm the bankruptcy court’s decision. 5. The dissolution of the marriage between William and Karen Behlke became final on April 8, 1998. I. William and Karen Behlke had one child from their marriage whose custody they now share. William Debtors filed a voluntary petition in bankruptcy under Behlke pays child support of $653.00 per month. Chapter 7. The Trustee filed a motion to dismiss the case under § 707(b), arguing that to grant the debtors a Chapter 7 6. In March 1999, Rubbermaid merged with Newell discharge in this “no asset” case would constitute a Corporation to form Newell Rubbermaid, Inc. substantial abuse because the debtors have disposable income Seven attorney’s jobs at Rubbermaid were with which to pay their creditors. The parties stipulated to the eliminated leaving William Behlke as the only underlying facts at the time of the hearing on the motion. On attorney in Rubbermaid’s Office of Corporate April 4, 2002, the bankruptcy court issued its decision setting Counsel. Newell retained its staff of four in-house forth the stipulated facts, the applicable law, and the reasons attorneys in its offices in Freeport, Illinois, including for finding that the Trustee met its burden of demonstrating the general counsel for Newell Rubbermaid, Inc. that “these debtors are not ‘needy’ and that granting them a Mr. Behlke’s employment at Newell Rubbermaid Chapter 7 discharge would be a ‘substantial abuse’ of the appears currently steady, though the possible early bankruptcy system.” retirement of general counsel for Newell could signal an attempt to consolidate the office of general There is no dispute concerning the stipulated facts, which counsel at Newell. the bankruptcy court set forth as follows: 7. In January 1999, Dina Behlke (then Dina 1. In December 1995, William Behlke was about to Christopher) left her employment as a paralegal and become a partner in a large law firm in California at began Mobile P.I. Mobile P.I. is a business which is which he had been practicing for six years. employed (now exclusively) by the law firm of Friedman, Domiano & Smith to go to the homes of 2. Mr. Behlke left California and followed his then their various potential personal injury clients wife (now his ex-wife), Karen, to Ohio in an effort throughout northern Ohio and obtain the client’s to save his marriage. medical releases and signatures upon retainer agreements. If Mrs. Behlke obtains the requested 3. Because he moved to Ohio, Mr. Behlke lost his signatures, Mobile P.I. is paid a flat fee for position in California. Mr. Behlke spent the next Mrs. Behlke’s services. If not, Mobile P.I. receives 13½ months out of work, first working to obtain a no compensation. Mobile P.I. is not reimbursed for Mrs. Behlke’s mileage or expenses. During the No. 02-4306 In re Behlke 5 6 In re Behlke No. 02-4306

years 2000 and 2001, Ms. Behlke traveled 14. Debtors’ gross income for 1999 was $93,116.00 and throughout Medina, Cuyahoga, Summit, Stark, their gross income for 2000 was $93,036.00. Trumbull, Portage, Mahoning, Wayne, Carroll, Holmes, Geauga, Columbiana, Tuscarawas, Ashland 15. For tax year 2000, debtors received an income tax and Richland counties for work on behalf of Mobile refund of $2,313.00. P.I. 16. Debtors are eligible for relief under chapter 13 of the 8. William and Dina Behlke were married on Bankruptcy Code. December 21, 1999. There was no dispute that the debts in this case were primarily 9. On September 12, 2001, Mr. and Mrs. Behlke unsecured consumer debts. initiated this joint, voluntary chapter 7 bankruptcy. At the time of filing, the Behlkes owed a total of As the bankruptcy court observed, this court has $163,944.00 in unsecured nonpriority debt which is determined that substantial abuse can be predicated on a “consumer” in nature. Of that amount, $30,140.00 showing of either a lack of honesty or a want of need. In re is for a student loan debt owed by William Behlke. Krohn, 886 F.2d 123, 126 (6th Cir. 1989). The Trustee did not rely on a lack of honesty, but maintained that the debtors 10. The remaining $133,804.00 of unsecured were not “needy.” Examining this question, the bankruptcy nonpriority debt that was owed at the time of the court found that the voluntary 401K contributions should be bankruptcy filing is from various credit card included in disposable income; that, including those accounts of both William and Dina Behlke. contributions, debtors had an ability to pay out of future income; and that, taken with the other Krohn factors, 11. According to the debtors’ records, on December 31, discharge in this case would be a substantial abuse of the 1998, debtors owed between them a total of bankruptcy system. The BAP affirmed on October 10, 2002, $60,211.80 in credit card debt, which debt was and this appeal followed. mostly incurred between 1996 and early 1998 and primarily owed by William Behlke. On II. December 31, 1999, debtors’ credit card debt totaled $100,353.00. On December 31, 2000, debtors owed A. Standard of Review a total of $124,437.72 in credit card debt. “We independently review the decision of the bankruptcy 12. Debtors’ net monthly income totals $4,923.00 and court that comes to us by way of appeal from a Bankruptcy their net monthly expenses total $4,749.00. Appellate Panel.” Nardei v. Maughan (In re Maughan), 340 F.3d 337, 341 (6th Cir. 2003). The bankruptcy court’s 13. Debtors’ Schedule I – Current Income of Individual findings of fact are reviewed for clear error, while its Debtor(s) shows a voluntary monthly contribution of conclusions of law are reviewed de novo. Nicholson v. $460.00 to William Behlke’s employer sponsored Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir. 1994); 401K plan. Rembert v. AT&T Universal Card Servs. (In re Rembert), 141 F.3d 277, 280 (6th Cir. 1998). Mixed questions are to be No. 02-4306 In re Behlke 7 8 In re Behlke No. 02-4306

separated into their component parts and reviewed under the bankruptcy courts to deal equitably with such debtors). In appropriate standard. Mayor of Baltimore v. W. Va. (In re addition, both § 707(a) and § 707(b) provide that the Eagle-Picher Indus., Inc.), 285 F.3d 522, 527 (6th Cir.), cert. bankruptcy court “may” dismiss and this permissive language denied, 537 U.S. 880 (2002). “Finally, the bankruptcy court’s leads to the inevitable conclusion that the decision whether to equitable determinations are reviewed for an abuse of dismiss either “for cause” or “substantial abuse” is discretion.” Id. (citations omitted). discretionary. As a result, we conclude that the ultimate question of whether to dismiss for substantial abuse under Debtors contend that the BAP erred in applying an abuse of § 707(b) is reviewed for abuse of discretion. See also AMC discretion standard to the ultimate question of whether there Mortgage Co. v. Tenn. Dept. of Revenue (In re AMC was substantial abuse warranting dismissal, without resolving Mortgage), 213 F.3d 917, 920 (6th Cir. 2000) (dismissal for the question of whether the issue should be reviewed de novo cause under 11 U.S.C. § 1112(b) is reviewed for abuse of or for an abuse of discretion. While it appears that the BAP discretion). actually concluded that it would affirm under either standard, ours is an independent review of the bankruptcy court’s B. Dismissal under § 707(b) decision. Congress chose not to define the term “substantial abuse,” Several circuits have stated, albeit without discussion or leaving it to the courts to decide how it should be determined. analysis, that whether the facts as found by the bankruptcy Although a number of circuits have addressed this question, court constitute substantial abuse is a question of law that is this court is bound by the approach set forth in Krohn, where to be reviewed de novo. See Stewart v. United States Trustee we explained that: (In re Stewart), 175 F.3d 796, 803 (10th Cir. 1999); Kornfield v. Schwartz (In re Kornfield), 164 F.3d 778, 783 (2d Cir. Those courts which have reviewed the legislative 1999); First USA v. Lamanna (In re Lamanna), 153 F.3d 1, history, have generally concluded that, in seeking to curb 3 (1st Cir. 1998); Green v. Staples (In re Green), 934 F.2d “substantial abuse,” Congress meant to deny Chapter 7 568, 570 (4th Cir. 1991). On the other hand, the Eighth relief to the dishonest or non-needy debtor. See [In re] Circuit BAP has held that dismissals for substantial abuse are Walton, 866 F.2d [981, 983 (8th Cir. 1989).] In to be reviewed for abuse of discretion. In re Nelson, 223 B.R. determining whether to apply § 707(b) to an individual 349, 352 (8th Cir. BAP 1998). debtor, then, a court should ascertain from the totality of the circumstances whether he is merely seeking an While this court has not specifically considered the advantage over his creditors, or instead is “honest,” in the question of the appropriate standard for reviewing dismissals sense that his relationship with his creditors has been under § 707(b), we have concluded that a decision to dismiss marked by essentially honorable and undeceptive “for cause” under § 707(a) will be reversed only for an abuse dealings, and whether he is “needy” in the sense that his of discretion because it is an equitable determination. Indus. financial predicament warrants the discharge of his debts Ins. Servs., Inc. v. Zick (In re Zick), 931 F.2d 1124, 1126 (6th in exchange for liquidation of his assets. See 4 Collier Cir. 1991). In discussing the purposes of § 707(b), the court [on Bankruptcy] ¶ 707.07, at 707-20 [(15th ed. 1989)]. in Krohn indicated that dismissal for substantial abuse is also Substantial abuse can be predicated upon either lack of an equitable determination. Krohn, 886 F.2d at 126 (§ 707(b) honesty or want of need. gives discretion to dismiss for abusive filing and allows No. 02-4306 In re Behlke 9 10 In re Behlke No. 02-4306

Krohn, 886 F.2d at 126. After identifying some factors bankruptcy court committed no legal error in finding relevant to ascertaining a debtor’s honesty, the Krohn court substantial abuse absent a finding of “dishonesty.” went on to explain the factors relevant to determining whether a debtor is “needy”; first among them being the debtor’s 1. Ability to Pay “ability to repay his debts out of future earnings.” Id. Significantly, the court expressly held that this factor “alone One way courts determine a debtor’s ability to pay is to may be sufficient to warrant dismissal.” Id. The court evaluate whether there would be sufficient disposable income explained this and other factors as follows: to fund a Chapter 13 plan. See Stuart v. Koch (In re Koch), 109 F.3d 1285, 1288 (8th Cir. 1997); Zolg v. Kelly (In re For example, a court would not be justified in concluding Kelly), 841 F.2d 908, 914 (9th Cir. 1988). “[D]isposable that a debtor is needy and worthy of discharge, where his income” is income “received by the debtor and which is not disposable income permits liquidation of his consumer reasonably necessary to be expended . . . for the maintenance debts with relative ease. Other factors relevant to need or support of the debtor or a dependent of the debtor.” 11 include whether the debtor enjoys a stable source of U.S.C. § 1325(b)(2). The debtors do not contest any of the future income, whether he is eligible for adjustment of bankruptcy court’s factual findings underlying the conclusion his debts through Chapter 13 of the Bankruptcy Code, that, without including the 401K contribution, their monthly whether there are state remedies with the potential to income exceeded their monthly expenses by $174.00.1 ease his financial predicament, the degree of relief Rather, they claim it was error for the bankruptcy court to obtainable through private negotiations, and whether his include Mr. Behlke’s voluntary 401K contribution of $460.00 expenses can be reduced significantly without depriving per month as disposable income for purposes of determining him of adequate food, clothing, shelter and other their ability to pay their creditors out of future income. necessities. Our starting point must be this court’s holding in Id. Harshbarger v. Pees (In re Harshbarger), 66 F.3d 775, 777- 78 (6th Cir. 1995), that the debtor’s voluntary repayment of Debtors argue, in disregard of Krohn, that it was error for loans to her ERISA-qualified profit sharing account should be the bankruptcy court to find substantial abuse in the absence treated as part of the disposable income in the bankruptcy of evidence of unfair dealing or bad faith on their part. estate.2 Affirming the rejection of a Chapter 13 plan, the Debtors rely on In re Browne, 253 B.R. 854, 856 (Bankr. court held that: “This expenditure may represent prudent N.D. Ohio 2000), for the proposition that an ability to pay, financial planning, but it is not necessary for the ‘maintenance without more, is an insufficient basis to dismiss for substantial abuse. Not only does Browne inaccurately cite Krohn for this proposition, but Krohn clearly holds that the ability to pay may be but is not necessarily sufficient to 1 warrant dismissal for substantial abuse. See In re Austin, 299 Debtors’ monthly expenses include a child support payment B.R. 482, 486 (Bankr. E.D. Tenn. 2003) (discussing Browne). of $635.00 for Mr. Behlke’s minor child. Although debtors rely on decisions from other circuits to the 2 contrary, we are bound by Krohn. Salmi v. Sec’y of Health & The court noted that the debtor’s beneficial interest in the Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). The ERISA account was exempted from the bankruptcy estate. Id. at 777. No. 02-4306 In re Behlke 11 12 In re Behlke No. 02-4306

or support’ of the debtors.” Id at 777. The court explained its disposable income where the debtor is near the age of rationale as follows: retirement and has no other retirement savings plan). It is unfortunate that Mrs. Harshbarger’s expected Without arguing that voluntary retirement contributions can pension benefits may be diminished by a future setoff never be disposable income, debtors claim it was error for the against the unpaid portion of her obligation to the bankruptcy court to find that the 401K contributions in this ERISA-qualified account. However, this consideration case were not reasonably necessary for the maintenance and does not alter the result under the bankruptcy laws. In support of the debtors or their dependent. In particular, they these circumstances, “it would be unfair to the creditors emphasize that they had only $48,200 in retirement savings to allow the Debtors in the present case to commit part of between them at the time of the bankruptcy filing. their earnings to the payment of their own retirement fund while at the same time paying their creditors less After noting that the debtors had excess income aside from than a 100% dividend.” In re Jones, 138 B.R. 536, 539 the 401K contributions, the bankruptcy court made the (Bankr. S.D. Ohio 1991). following findings:

Id. at 778. We agree with those courts that have held this Although saving for retirement is, no doubt, important to reasoning is equally applicable to a debtor’s voluntary these debtors, their Schedule B – Personal Property contributions to a 401K or other retirement plan. See, e.g., reflects accumulated retirement savings of $48,200. In Anes v. Dehart (In re Anes), 195 F.3d 177, 180-81 (3d Cir. addition to these retirement savings, debtors’ Schedule B 1999) (loan repayments are in effect contributions to the also lists stock options on 1,025 shares of Newell debtor’s retirement account and are disposable income for Rubbermaid stock. Although these stock options did not purposes of a Chapter 13 plan). In fact, a number of appear to have any immediate value based upon the stock bankruptcy courts have included voluntary 401K trading price on the date debtors filed their petition, there contributions as disposable income in considering whether has been no evidence to indicate that such options are not dismissal was warranted for substantial abuse under § 707(b). now or could not become valuable in the future. These See Austin, 299 B.R. at 486-87 (voluntary retirement debtors also own the home which serves as their primary contributions constitute disposable income in considering residence. On their Schedule A – Real Property, debtors dismissal under § 707b) (citing cases); In re Keating, 298 listed the property as having a current market value of B.R. 104, 110-11 (Bankr. E.D. Mich. 2003) (“There is an $135,000.00 with a first mortgage of $124,432.00 and inherent unfairness in permitting a debtor to pay himself by there is no indication in debtors’ Schedules that they are funding his own retirement account while paying creditors behind on any mortgage payments. Moreover, there has only a fraction of their just claims.”); In re Heffernan, 242 been nothing to indicate that the value of this real B.R. 812, 818 (Bankr. D. Conn. 1999) (overwhelming property will not appreciate. consensus among bankruptcy courts that debtor’s voluntary payment into pension, savings, or 401K-type plan is not a (Footnote omitted.) Thus, applying Harshbarger and finding reasonably necessary expenditure) (citing cases). But see In that the debtors had accumulated retirement savings as well re Mills, 246 B.R. 395, 401-02 (Bankr. S.D. Cal. 2000) as other personal and real property of potentially significant (allowing a modest contribution to 401K to be excluded from future value, the bankruptcy court found that the monthly 401K contribution, which is equal to 6% of Mr. Behlke’s No. 02-4306 In re Behlke 13 14 In re Behlke No. 02-4306

gross income, should be included as disposable income for analysis and finding because, if it did, debtors could be purposes of determining the debtors’ ability to pay their encouraged to amass debt prior to filing chapter 7. creditors out of future earnings. In addition to evaluating ability to pay debts out of We agree completely and find no clear error in the future income, other factors to be taken into account to bankruptcy court’s finding that the 401K contribution in this determine if debtors are “needy” include whether debtors case was not reasonably necessary to the maintenance and enjoy a stable source of income, whether debtors’ support of the debtors or their dependent and that it should be expenses can be reduced significantly without depriving included as disposable income. them of adequate food, clothing, shelter and other necessities and whether debtors’ financial situation is the 2. Substantial Abuse result of an unforseen catastrophic event. In re Krohn, 886 F.2d at 126-28. Mr. Behlke has been employed in Turning to the ultimate question of whether there was the same position since February 1997. Although substantial abuse warranting dismissal under § 707(b), it is debtors allude to a possibility that Mr. Behlke’s apparent from even a cursory examination of the bankruptcy employment could be eliminated through consolidation court’s decision that its finding of substantial abuse rested not of Newell Rubbermaid’s office of general counsel, the only on the finding that the debtors had an ability to pay their only evidence actually before the Court demonstrates that creditors out of future income to the tune of $634.00 per Mr. Behlke’s employment is secure. As for Mrs. Behlke, month, but also on consideration of the other factors relevant the evidence before the Court demonstrates that her to determining whether the debtors were “needy.” The income (although minimal) has, over the past 3 years, bankruptcy court explained as follows: been increasing. This increase, combined with the fact that Ms. Behlke possesses paralegal skills which could If debtors’ income and expenses remain relatively the enable her to obtain other more highly paying same (and there was no argument or evidence from either employment, leads the Court to find that these debtors do party to suggest otherwise) and if Mr. Behlke’s 401K enjoy a stable source of income. contribution were added to debtors’ monthly income and then applied toward the payment of debts through a The United States Trustee does not allege that these chapter 13 plan, debtors could pay approximately 14% of debtors[’] expenses could be reduced and, upon review their debts over 36 months. If payments were extended of debtors’ Schedule J – Current Expenditures of over a 60 month period, debtors could pay approximately Individual Debtor(s), it does not appear that the Behlkes’ 23% of their debts. See 11 U.S.C. § 1322(d) and lifestyle is extravagant. However, it also does not appear § 1325(b)(1)(B). . . . The Court further finds that debtors’ that their lifestyle is an austere one as their monthly ability to pay at least a 14% dividend to their creditors expenses include $1,121.00 for a mortgage payment, without having to alter their budgeted expenses (other $500.00 for food, $150.00 for recreation and $666.84 for than a contribution to a retirement savings plan) lends to payments on two automobiles. Moreover, there is no a finding that these debtors can repay debts out of future evidence before the Court to indicate that the Behlke[s’] earnings through the funding of a chapter 13 plan. That bankruptcy filing was precipitated upon a catastrophic or these debtors may only be able to pay their creditors 14 an unforeseen event. Cf. In re Fessler, 168 B.R. 622 cents on the dollar does not act to change the Court’s (Bankr. N.D. Ohio 1994) (loss of employment of both No. 02-4306 In re Behlke 15 16 In re Behlke No. 02-4306

breadwinners in household constitutes calamity); In re (Bankr. N.D. Ohio 1994) (11%); In re Beles, 135 B.R. 286 Shepherd, 147 B.R. 422 (Bankr. N.D. Ohio 1992) (debtor (Bankr. S.D. Ohio 1991) (35%); In re Butts, 148 B.R. 878 forced into bankruptcy due, in part, to psychological (Bankr. N.D. Ind. 1992) (42%). Ability to pay alone may be trauma of catastrophic events including (1) charge of but is not necessarily sufficient to warrant dismissal. As the rape against debtor’s live-in companion, (2) murder of Trustee observes, other factors weighed against dismissal in debtor’s brother[,] (3) conviction of murder against Beles and Butts despite an ability to pay. debtor’s other brother and (4) death of debtor’s close personal friend). Instead, it appears that Mr. and Mrs. Reviewing for abuse of discretion, we may reverse only if Behlke filed for bankruptcy to escape the burden of we are left with a definite and firm conviction that the exorbitant but self-imposed credit card debt. bankruptcy court committed a clear error in judgment. Eagle- Picher Indus., 285 F.3d at 529. “‘The question is not how the (Footnote omitted.) reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court’s Debtors do not challenge the factual findings reflected in decision; if reasonable persons could differ as to the issue, the above analysis, but seem to argue that there was no then there is no abuse of discretion.’” Id. (citation omitted). substantial abuse because they only have an ability to repay When the debtors’ ability to pay is taken with the other 14% over three years (for a total of $22,824) or 23% over five relevant factors, we can find no abuse of discretion in the years (for a total of $38,040). As the debtors themselves determination that the debtors were not “needy” and the case point out, however, there is no “cutoff” or bright-line test should be dismissed for substantial abuse. under which an ability to pay a certain percentage over a three-to-five year period would or would not be substantial AFFIRMED.4 abuse regardless of other circumstances.3 The fact that bankruptcy courts have found no substantial abuse in cases where there was an ability to repay only 5% or 11%, as well as cases in which there was an ability to repay as much as 35% or 42% does not undermine the bankruptcy court’s 4 The United States Trustee argues that the debtors’ ability to determination in this case. See In re Hampton, 147 B.R. 130 pay is even higher than the bankruptcy court found because the (Bankr. E.D. Ky. 1992) (5%); In re Martens, 171 B.R. 43 debtors’ tax return of $2,313 for the year 2000 represented over- withholding and should have been divided by 12 and an additional $192.75 included as disposable income. See, e.g., In re Hutton, 3 158 B.R. 648, 649 (Bankr. E.D. Ky. 1993) (monthly net pay was Debtors trace the legislative history of several bills that arguably more because of over-withholding for income tax). preceded the adoption of § 707(b), including a Senate Judiciary Including this amount and similar expected tax refunds would have Committee report on a failed bill that would have adopted a “future increased the percentage the debtors’ could repay to 18% over income test” for substantial abuse. The report explains that, under three years (for a total of $29,763) or 30% over five years (for a such a test, if a debtor could pay no more than 25% of the debts total of $49,605). Because we are satisfied that the bankruptcy over a three-to-five year period, the debtor would not have court did not abuse its discretion in dismissing the debtors’ substantial debt paying ability and would be eligible for Chapter Chapter 7 case for substantial abuse, we need not decide whether 7 relief. However, debtors concede that such a test was not there is sufficient basis in this record to find it was clear error to adopted in § 707(b). have disregarded the debtors’ income tax refund in this case.