1. The Debtors did not attempt to explain how much cargo capacity was needed to transport a server, nor did they compare the cargo capacity of the Ford Edge to other, more reasonably priced vehicles. 2004) ("The Debtors actions, however, in purchasing two new and relatively expensive vehicles on the eve of bankruptcy indicates that the Debtors likely have engaged in some calculated manipulation of the Bankruptcy Code."); see also Milavetz, Gallop & Milavetz, P.A. 505, 509 (Bankr. 8, 2010) (2010 WL 757616) ("Section 526(a)(4) prohibits a debt relief agency from `advis[ing] an assisted person'... During their meeting, the Debtors and their attorney discussed the idea of trading in their leased vehicles and reducing their monthly payments. W.D. Then, twelve days prior to filing their petition, the Debtors purchased two new vehicles at a total cost of $69,104.15. This explanation is unsatisfactory. Eve-of-Bankruptcy Purchases The Debtors met with their attorney during the first week of July 2009. United States , 599 U.S. Mo. Moreover, the Debtors could have purchased substantially less expensive vehicles with equal or greater cargo capacity. `to incur more debt in contemplation of' filing for bankruptcy... v. See In re McLaughlin , 305 B.R. The Court notes that by purchasing these vehicles, the Debtors reduced their monthly disposable income on the means test by $130.84, raising the specter of impermissible manipulation. Despite the male Debtor's testimony that he did everything he could to reduce his monthly payments, neither he nor his wife visited any other dealerships in an effort to locate more affordable transportation. at 9 (U.S. While the purchase of these new vehicles reduced the Debtors' monthly payment from $1,337.18 to $1,017.06, the Debtors could have selected less expensive vehicles that would have reduced their monthly payment much further. ___, slip op. The male Debtor testified that he purchased a Ford Edge, a mid-sized sport utility vehicle, because he sometimes transports computer servers for work and needs the vehicle's extra cargo space. Mar. .").
Second, Section 707(b)(3) provides that, even if no presumption of abuse arises, a court may still dismiss a case based upon the particular circumstances of the case. The Bankruptcy Administrator does not assert that the Debtors failed the means test of Section 707(b)(2), so the Court need only address whether there is a basis to dismiss the case under Section 707(b)(3).
A. 492, 499 (Bankr. S.D. or (4) absence of intent to defraud or to seek unconscionable advantage." Id. Fla. 08-04506, slip op. An analysis of bad faith under Section 707(b)(3)(A) may look outside a debtor's financial situation. Bad Faith under Section 707(b)(3)(A) In the context of bankruptcy, a "bad faith filing" is defined as "[t]he act of submitting a bankruptcy petition that is inconsistent with the purposes of the Bankruptcy Code or is an abuse of the bankruptcy system (that is, by not being filed in good faith)." Black's Law Dictionary 149 (8th ed. Wash. Id. 159, 176 n.25 (Bankr. 31, 2009) (2009 WL 5217674). M.D.N.C. Factors unrelated to a debtor's financial situation include eve-of-bankruptcy purchases, filing incomplete or false schedules, or failure to cooperate with the bankruptcy trustee. In re Crink , 402 B.R. 2004). Bad faith exists if the filing of the bankruptcy was for a purpose not consistent with the Bankruptcy Code or policy even though the purpose may otherwise be lawful." In re Hageney , No. 2009) (citing In re Parada , 391 B.R. Dec. "Bad faith may involve a dishonest debtor or nefarious acts, but such motivation or intent is not necessary. at 713. E.D. Good faith is defined as a "state of mind consisting in (1) honesty in belief or purpose,... at 4 (Bankr. In determining whether a debtor filed her petition in bad faith, courts should look to the debtor's intent and purpose at the time of commencing the bankruptcy, focusing upon the debtor's conduct. 2008)).
Section 707(b)(3) requires a court to consider "(A) whether the debtor filed the petition in bad faith; or (B) [whether] the totality of the circumstances... 05-10665, slip op. of the debtor's financial situation demonstrates abuse." Unlike the pre-BAPCPA version, "§ 707(b)(3) does not require a showing of `substantial abuse,' but a lower standard of `abuse.'" In re Mondragon , No. 24, 2007) (2007 WL 2461616); In re Mestemaker , 359 B.R. Ohio 2007). at 1 (Bankr. N.D. 849, 856 (Bankr. Aug. D.N.M. The Bankruptcy Administrator alleges that the granting of relief would be an abuse under both the bad faith and totality of the circumstances prongs of Section 707(b)(3).
This troublesome behavior by the Debtors tends to show that their bankruptcy was an attempt to get a head start instead of a fresh start. Green , 934 F.2d at 570. The purchase of the two new vehicles was clearly in contemplation of bankruptcy and supports a finding that the Debtors filed their petition in bad faith.
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