UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
CARLA HOCKER CASE NO. 95-20588
This matter is before the Court upon the Motion of the United States Trustee to Dismiss the within proceeding pursuant to 11 U.S.C.'707(b). That Motion, filed July 12, 1995, recites, and the original schedules reflect, an excess of $1,312 in income over expenses based upon the schedules filed by the Debtors. The Motion, and argument in the case, reflect no egregious factors, save and except the excess of income over expenses if that can be called an egregious factor. The point, of course, of the Motion by the United States Trustee is the clear ability, based upon the original schedules herein of the Debtors to fund a Chapter 13 plan.
The response of the Debtors adjusted their incomes to reflect their incomes based upon a 40 hour work week, as opposed to a 52 hour work week, increased the monthly food expense, utility expenses, clothing expenses, laundry expenses, gasoline expenses, and expenses related to their children. The Debtors argue that the Court should consider the 40 hour per week earnings of the Debtors when evaluating the matter under'707(b) of the Bankruptcy Code. This Court has previously had the opportunity to consider the matter of whether overtime should be considered as part of the Debtors' earnings when evaluating a '707(b) motion. In re Hampton, 147 B.R. 131 (Bkrtcy. E.D. KY. 1992). In that case, one of the Debtors had health problems which appeared to impair his ability to work overtime in the future.
This Court must consider the totality of the circumstances in order to determine if there has been a substantial abuse. In re Krohn, 886 F.2d. 123 (6th Cir. 1989). The only circumstance in this case militating for the motion of the United States Trustee is the potential ability to fund a plan. This Court has held that the ability to fund a plan under Chapter 13, without more, is normally not itself sufficient to warrant dismissal under'707(b) although in an extreme case it might be. Hampton, supra, page 132, citing In re Green, 934 F.2d. 568 (4th Cir. 1991) and Krohn, supra. The present case much resembles the Hampton case in that there might, arguably, be an excess of income over expenses post-petition. The Court uses the term "arguably" here since it is clear that several of the amendments made by the debtors to their expenses are reasonable and made in good faith. The actual excess of income over expenses is significantly smaller than the original figure. Allowing for this, and in view of the fact that there are no allegations of bad faith, retention of luxury items, maintaining pre-bankruptcy lifestyle or other factors which point clearly to abuse, the Court again holds that a substantial abuse has not been shown under 11 U.S.C. '707(b).
Accordingly, the Motion of the United States Trustee will be overruled by a separate Order.
Dated this _____ day of September, 1995.
BY THE COURT
John G. Arnett, Esq.
Charles L.J. Freihofer, Esq.