Robert Alan Witcher v. Valery W. Early, III, 702 F.3d 619

Witchers filed a January 2010 Chapter 7 bankruptcy petition.
Bankruptcy court found no presumption of abuse under §707(b)(2) the means test.
Court still held abuse under §707(b)(3)(B) based on their ability to pay and luxury-item retention.
Court gave 14 days to convert to Chapter 13; they did not, and case was dismissed.
Witchers appealed, contesting consideration of ability to pay under §707(b)(3)(B) but not factual findings.
District court affirmed, agreeing ability to pay can be considered under the totality-of-the-circumstances standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ability to pay may be considered under §707(b)(3)(B).	Witchers: no—precludes reuse of means-test factors.	Witchers: district court, and many authorities, permit inclusion of ability to pay.	Yes; ability to pay may be considered under §707(b)(3)(B).

In re Lamanna, 153 F.3d 1 (1st Cir. 1998) (established ability-to-pay as a factor in totality-of-the-circumstances)
In re Green, 934 F.2d 568 (4th Cir. 1991) (ability to pay considered in substantial abuse analysis)
In re Krohn, 886 F.2d 123 (6th Cir. 1989) (ability to pay considered in totality-of-the-circumstances)
United States Trustee v. Harris, 960 F.2d 74 (8th Cir. 1992) (ability to pay treated as a factor in substantial abuse)
In re Kelly, 841 F.2d 908 (9th Cir. 1988) (ability to pay as a consideration in abuse analysis)
Lorillard v. Pons, 434 U.S. 575 (1978) (statutory interpretation context for reliance on pre-BAPCPA interpretations)