Rubrics - Law 19

In Re Busbin - Assignment #4

A (90-100) - includes code section and case, and/or discussion of "substantial abuse" and "debtors ability to pay his debts"
B (80-90) - includes at least "substantial abuse"
C (70-80) - discusses case, some understanding, but no use or words "substantial abuse"
D (60-70) - discusses case, but does not really understand the legal principles involved in the case

11 U.S.C. § 707(b). Section 707
provides:

(a) The court may dismiss a case under this Chapter only after notice and a hearing and only for cause, including —

(b) 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.[fn3]

No definition of the term "substantial abuse" is contained in § 707(b) or elsewhere in the Bankruptcy Code.

Zolg v. Kelly, 841 F.2d 908 (9th Cir. 1988), is the last of a long line of cases which uniformly hold that a debtor's ability to pay his debts defines substantial abuse.

The Ninth Circuit examined most of the cases which had been decided under West Page 244 § 707(b) and concluded those cases were unanimous in holding
"that the principal factor to be considered in determining substantial abuse is the debtor's ability to pay the debts for which a discharge is sought." Kelly, 841 F.2d at 913. The Ninth Circuit, however, went one step further by concluding that "a finding that a debtor is able to pay his debts, standing alone, supports a conclusion of substantial abuse."

In the instant case, Debtor's excess disposable income would allow him to pay off the entire remaining balance due to Bank South in less than five months. Debtor could pay the entire debt of $1,450 in less than twelve months. Therefore, if this court employed the analysis of the Ninth Circuit in Kelly, Debtor's ability to pay would, "standing alone", support a finding of substantial abuse.