ORDER AFFIRMING JUDGMENT OF THE UNITED STATES BANKRUPTCY COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
Aрpellants Peter and Andrea Reed appeal an order of the bankruptcy court granting the United States Trustee’s (hereinafter the “UST”) motion to dismiss Appellant’s bankruptcy case under 11 U.S.C. § 707(b)(2) and § 707(b)(3). The order was entered on the docket on May 29, 2007, and Appellants filed a timely notice of appeal under 28 U.S.C. § 158(c)(2) and Rule 8002(a) of the Federal Rules of Bankruptcy Procedure. This court has jurisdiction to hear appeals from “final judgments, orders, and decrees” of the bankruptcy court. 28 U.S.C. § 158(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Debtors File for Bankruptcy Protection
On November 30, 2006, debtors Peter and Andrea Reed (“the Reeds”) jointly filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. 1 The Bankruptcy Code requires that debtors with primarily consumer debts file Official Form 22A (the “Means Test Form”) with their bankruptcy schedules and statements. 2 The purpose of the Means Test is to calculate the debtors’ ability to pay back creditors with monthly disposable income and in this manner to assess whether a “presumption of abuse” arises under 11 U.S.C. § 707(b)(2). 3 A “presumption of *218 abuse” arises when the Means Test indicates that the debtors have the ability to make monthly payments оf $167 to creditors over a period of five years (or, stated otherwise, $10,000 over 60 months). The Reeds’ Means Test Form indicated that the Reeds had a gross monthly income of $5,947.57; using this number, the Reeds calculated that they had no monthly disposable income. 4 On Official Form 61 (Schedule I and Schedule J), however, the Reeds admitted that their monthly income was $7,645, and they had monthly disposable income of $186.46. 5
The UST contacted the Reeds’ attorney to notify her of the discrepancy. The attorney, however, failed to address the problem prior to the first scheduled § 341(a) Meeting of Creditors on January 8, 2007. 6 At the § 341(a) meeting, the Reeds’ attorney agreed to look into the discrepancy and make appropriate corrections. 7 The trustee continued the § 341(a) meeting to January 29, 2007; at the request of the Reeds’ attorney, this date was later extended to February 20, 2007. 8
On January 17, 2007, the UST filed a 10-Day Statement as required by 11 U.S.C. § 704(b)(1), stating that he could not determine whether a presumption of abuse arose in the Reeds’ bankruptcy case. 9 The UST then sent a letter to the Reeds’ attorney, requesting evidеnce that would verify the amounts set forth on the Reeds’ Means Test Form. 10 After further evaluation, the UST filed a supplemental statement on February 15, 2007, stating that a presumption of abuse arose in this case. The following day, he filed a motion to dismiss Reeds’ case under §§ 707(b)(2) and (b)(3). 11 The UST’s assertion that there was a presumption of abuse was based on his finding that the Reeds had monthly disposable income of $576.51, exceeding the § 707(b)(2) statutory! threshold of $167. 12
On the morning of the § 341(a) meeting for February 20, 2007, the Reeds filed a second Means Test Form that increased their CMI, but also increased their health *219 care expenses from $318 to $611.54. 13 Because neither the UST nor his counsel had an opportunity to review the newly filed Means Test Form prior to the time set for the meeting, the trustee continued the meeting to March 12. 14 Neither the Reeds nor their attorney appeared at the March 12 meeting. The meeting J was again continued to April 2; on that date, only the Reeds’ attorney appeared. 15
On April 17, 2007, the Reeds filed a third Means Test Form containing adjustments to gross income, healthcare expenses, and a new monthly child care exрense of $333.66. 16 Because of this new filing, the UST filed a motion to continue the hearing on his motion to dismiss so that the UST could examine the Reeds under oath and obtain support for the newly filed Means Test. 17
B. The Bankruptcy Court Grants UST’s Motion to Dismiss Under §§ 707(b)(2) and (b)(3)
On May 16, 2007, the bankruptcy court heard the UST’s motion to dismiss. 18 The Reeds argued that the motion was time-barred because the UST had not met the Ten-Day Statement requirement set forth in § 704(b)(1). 19 The court rejected this argument, finding that the UST’s January 17 filing satisfied the Ten-Day Statement requirement. 20 The court then turned to the merits of the motion. Although the Reeds had previously filed three Means Test Forms, the UST and the Reeds had apparently agreed on the numbers set forth on an unfiled fourth Means Test; these figures showed that the Reeds had monthly disposable income of $54.98 if the childcare expenses claimed by the Reeds were accepted. 21 The UST argued, however, that the Reeds’ childcare expenses of $293 were unreasonable and should be added back into their monthly disposable income, bringing the total to $347. 22 Declining to consider the new means test, the bankruptcy court decided the motion using the numbers the Reeds had reported in their opposition to the UST’s motion to dismiss. 23 It held that a presumption of abuse arose under § 707(b)(2) because the Reeds had disposable income of $500 to $770 a month that far exceeded the statutory limit. 24
Alternatively, citing the totality of circumstances surrounding the Reeds’ financial situation, the bankruptcy court determined that the case should be dismissed under § 707(b)(3). The court cited the Reeds’ admission in their filings that they *220 had at least $186 in disposable income. 25 It also determined that the Reeds’ claimed childcare expenses of $333 were unreasonable because their child was in school and Mrs. Reed was unemployed. 26 Using disposable income of $186, and adding back the childcare expenses, the bankruptcy court determined that a monthly surplus of $519 over sixty months could pay back 84 percent of the Reeds’s unsecured debt. Consequently, it determined that the Reeds’ filing was an abuse of Chapter 7. 27
On May 4, 2007, the UST submitted a written order that was subsequently signed and entered by the bankruptcy court on May 29, 2007. 28 The Reeds’ case was dismissed that day. They filed a timely notice of appeal on June 7, 2007. 29
II. DISCUSSION
A. Standard of Review
The court reviews the bankruptcy court’s factual findings for clear error.
Hebbring v. U.S. Trustee,
The bankruptcy court also addressed a number of procedural issues under § 707(b)(2). Its rulings on these issues were based on its interpretation of the Bankruptcy Code and are legal conclusions. The bankruptcy court’s legal conclusions are reviewed
de novo. In re International Fibercom,
B. 11 U.S.C. § 707(b) After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”), which made certain modifications to the Bankruptcy Code, took effect on October 17, 2005. As its name indicates, BAPCPA’s goal was to “ensure that the system is fair for both debtors and creditors,” and to “ensure that debtors repay creditors the maximum they can afford.” H.R.Rep. No. 31(1), at 2, 109th Cong., 1st Sess. (2005) reprinted in 2005
*221
U.S.C.C.A.N. 88. The statute revised § 707(b) to lower the standard for dismissal of a Chapter 7 petition from “substantial abuse” to “mere abuse.” It also removed the presumption that debtors were entitled to relief.
In re Bender,
Rather than a presumption that debtors are entitled to relief, Congress implemented a means test under § 707(b)(2) to determine whether a presumption of abuse arises. If such a presumption arises, the case is subject to dismissal under § 707(b)(2).
In re Naut,
No. 07-20280REF,
Based on this calculation, if debtor’s monthly disposable income exceeds $167 a month (or $10,000 over a period of 60 months), a presumption of abuse arises and the debtor’s case can be dismissed under § 707(b)(2). Id. at *4. If the debtor rebuts the presumption of abuse by proving that there are “special circumstances” that require additional expenses, the UST can nonetheless seek dismissal under § 707(b)(3), arguing that the debtor’s filing was in bad faith, or that the totality of the debtor’s financial circumstances do not warrant bankruptcy relief. Id. at *3 (stating that if “the presumption of abuse [under § 707(b)(2) ] does not arise, or ... is rebutted, Section 707(b)(3) directs the court to consider ... debtor’s bad faith filing ... or the totality of the circumstances of the debtor’s financial situation”). If the debtor’s monthly disposable income falls below $167 a month, a presumption of abuse does not arise under § 707(b)(2); the case can, however, be reviewed for abuse under the totality of the circumstances or bad faith tests of § 707(b)(3). Id.
The BAPCPA revisions also imposed new duties on the UST. Within ten days after the first meeting of the creditors under § 341(a), the UST must review all materials filed by the debtor and file a “statement as to whether” the debtor’s case gives rise to a presumption of abuse. 11 U.S.C. § 704(b)(1)(A). Within thirty days of the filing of this statement, the UST must file either a motion to dismiss the debtor’s case or a statement as to why he does not believe dismissal is appropriate. 30 11 U.S.C. § 704(b)(2).
C. Dismissal under 11 U.S.C. § 707(b)(2)
1. Whether the Motion to Dismiss under § 707(b)(2) Was Time-Barred
The Reeds argue that the bankruptcy court erred in dismissing their case because the UST’s motion to dismiss was time-barred by his failure to file a timely
*222
Ten-Day Statement.
31
Courts are split as to whether the Ten-Day Stаtement requirement is in the nature of a statute of limitations. In
In re Cadwallder,
No. 06-36424,
Most courts addressing the issue, however, have held that the 10-day deadline represents ! an enforceable time bar to a motion to dismiss. In
In re Singletary,
The
Robertson
court emphasized the use in § 704(b)(1)(A) of the prescriptive “shall,” and concluded that such language established “procedural prescriptions as essential prerequisites for any subsequent motion.”
Robertson,
Although § 704(b)(i) does not delineate the consequences if the UST fails to file a timely Ten-Day Statement invoking a presumption of abuse, this court agrees with the majority of courts that have held that Congress intended to impose a mandatory deadline. One of the goals of the BAPC-PA revisions to the Bankruptcy Code was to streamline case administration by implementing a series of measures that required debtors to comply with strict deadlines.
Robertson,
Given this fact, it is unlikely that Congress intended to relax the time standards *223 governing responsive action by the UST. Id. Consequently, the court concludes that the failure to file a timely Ten-Day Statement under § 704(b)(1) precludes the filing of a motion to dismiss under § 707(b)(2).
2. Whether the UST Filed a Timely Ten-Day Statement Under § 704(b)(1)
i. The January 17 Statement
The UST argued, and the bankruptcy court found, that the statement filed on January 17, 2007 (9 days after the first meeting of the creditors) was a valid and timely statement that controlled “whether” the Reeds could be presumed to be an abuse.
33
The Reeds contend that the January 17 statement did not comply with the statutory requirements of § 704(b)(1) because it did not adequately state “whether or not” a presumption of abuse arose.
34
The starting point in discerning congressional intent in enacting a statutе is the statutory language; unless application of the plain language would lead to an absurd result, the court should enforce its clear terms.
Lamie v. United States Trustee,
“the United States trustee (or the bankruptcy administrator, if any) shall review all materials filed by the debtor and, not later than 10 days after the date of the first meeting of creditors, file with the court a statement as to whether the debtor’s case would be presumed to be an abuse under section 707(b)” (emphasis added).
The UST argues that a “statement as to whether” is not restricted to a binary choice of “yes” or “no,” but also includes a statement that the UST cannot determine whether the presumption arises. 35
The bankruptcy court in
Robertson
examined the meaning of “whether” as used in the’ statute, and concluded that it required an election as to whether there
is
or
is not
a presumption of abuse.
The court agrees with the conclusion that the Ten-Day Statement must include an unequivocal statement as to whether the case is or is not an abuse. The language of the statute is clear that the UST must inform the debtor “whether” it intends to file a motion to dismiss. The fact that there is a deadline for making that *224 statement indicates that Congress intended that the information be communicated as quickly as possible. It would thus be odd if the UST could meet the 10-day deadline by filing an equivocal response. Rather, to sаtisfy the statutory requirement, the Ten Day Statement must state clearly the UST’s conclusion as to whether the case is presumed to be an abuse.
ii. The February 15 Statement
The UST contends that, even if the January 17 statement was inadequate, the February 15 supplemental filing independently satisfied the statutory requirement of providing a “statement as to whether” a presumption of abuse applied.
36
There is no dispute that the substantive content of the February 15 supplemental filing provided sufficient notice of abuse.
37
Although it was regularly continued on various occasions through May 14, 2007, the § 341(a) meeting commenced on January 8, 2007.
38
The amended statement filed February 15, 2007 thus came 37 days after the start of the § 341(a) meeting. It is well established that a § 341(a) meeting can be continued; indefinitely if the trustee announces a continued date before adjourning the meeting or within a reasonable time thereafter.
In re Smith,
The Reeds argue that the supplemental statement that the UST filed on February 15, 2007 was untimely because the ten-day period began to run on January 8, 2007, the day the § 341(a) meeting commenced. They cite
In re Close,
The
Cadwallder
court reached a different conclusion, holding that the ten days in which the UST must file his statement runs from the conclusion of the creditors’ meeting rather than from its commencement. See
Cadwallder,
The court agrees with Cadwallder and Collier that the time from which the ten-day period under § 704(b) notice does not begin to run until the conclusion of the § 341(a) meeting. As in Cadwallder, the reason the UST continued the § 341(a) meeting in this case was to allow the Reeds to correct the discrepancy between the CMI reported in their Means Test Form and that reported on their amended schedules. 40 To require the UST to make an immediate determination of abuse based on incomplete or inaccurate information would not only be illogical, but would be contrary to BAPCPA’s goals of restoring “integrity in the bankruptcy system” and “ensuring] that the system is fair to both debtors and creditors.” H.R.Rep. No. 31(1), at 2, 109 Cong., 1st Sess. (2005), reprinted in 2005 U.S.C.C.A.N. 88, 97. Requiring an immediate determination regardless of the adequacy of the information provided at the § 341(a) meeting would likely result in incorrect presumptions of abuse. Moreover, a debtor could avoid the filing of a ten-day notice by submitting ambiguous or incorrect information in preparation for the first § 341(a) meeting and correcting it once the ten-day window had closed. Stated differently, adopting the Close court’s rule would provide a bad incentive for debtors in the same way that that court fears the opposite rule would provide a bad incentive for the UST.
The strongest argument against adoption of the rule advocated in
Cadwallder
and Collier is the fact that § 704 states that the ten-day period runs from the “first” meeting as opposed to the “meeting.” Prior to the BAPCA, the understanding was that the “first meeting of creditors” was not a discrete moment, but could stretch over a period of time. See
In re Spenler,
The court observed that, in common pаrlance, the meeting required by § 341 is referred to interchangeably as “the 341 meeting,” the “first meeting of creditors,” the “creditors’ meeting,” and the “meeting of creditors.” See id. (citing 6 Collier on Bankruptcy § 704.17[1]). The meeting triggers a number of deadlines, but the statute is not consistent in identifying how the trigger operates. 41 In some instances, it clearly states that the relevant date is the “first date set” for the meeting; in others, the date is not specified with precision. Congress clearly knew how to specify that the trigger date be the “first date set” for the meeting when it so intended. The fact that it did not do so when setting a deadline for the filing of the Ten-Day Statement indicates that § 704(b)’s reference to “first meeting” is refers to the meeting as a whole rather than the first date it is set. 42 The statutory language is consistent with common parlance, which often denominates the § 341(a) meeting in its entirety the “first meeting of creditors.”
For these reasons, the court finds that the ten-day period runs from the conclusion of the § 341(a) meeting rather than its commencement. As reflected in the UST’s initial Ten-Day Statement, 43 the Reeds provided conflicting CMI information that made an aсcurate determination regarding the presumption of abuse within ten days of the commencement of the § 341(a) meeting impossible. 44 The UST filed a supplemental Ten-Day Statement on February 15, 2007, almost one week prior to the first continued date. 45 This supplemental filing was timely-it occurred before the meeting concluded. Because it clearly stated that a presumption of abuse had arisen, it substantively satisfied the Ten-Day Statement requirement of § 704(b)(1). Consequently, the UST’s mo *227 tion to dismiss under § 704(b)(2) was timely. 46
3. Whether Dismissal under § 707(b)(2) Was Appropriate
Unless rebutted, a finding that there is a presumption of abuse under the Means Test provides adequate justification for dismissal under § 707(b)(2).
In re Scarafiotti,
Prior to the hearing on the motion to dismiss, the UST and the Reeds had agreed on a new Means Test Form, which reflected monthly net income of $54.98. 49 The new Means Test was not filed before the hearing, and the bankruptcy court refused to consider it. 50
Because the court ruled verbally, the only indication of its view of the evidence is found in the hearing transcript. The court stated that the presumption arose
“because I used the document that [the Reeds] filed with [their] opposition and you know, this is the day for the hearing. It is not whatever you decide some other time. If anybody wanted me I spent a long time preparing for this. I looked through all these papers. I read cases.... It seemed to me that the $7,800 a month which [the UST] had put in [his] papers seemed right since [the Reeds’ number] was based on four months plus something, less than five months or less than six months for sure. Then I took the means test and it was clearly — it’s even on [debtors’ counsel’s] figures. It would provide-I came up with a net of $770.00 because I used taxes from schedule J, not from the means test. They should be the same figure. Even using [debtors’ counsel’s figures] it was over $500.00 a month” 51
The bankruptcy court’s determination that the Reeds’ disposable net income was between $500 and $770 is a finding of fact that must be reviewed for clear error. The bankruptcy court ruled on the basis of *228 the evidence that had been submitted prior to the hearing; it declined to consider the new means test to which the parties had agreed, but which had not yet been filed. 52 The papers submitted to the court, on which it relied, included the second amended means test and Schedules I and J. 53 Using these numbers, together with supporting pay stubs and the calculations provided in the papers, the court determined that a presumption of abuse arose. Thus, based on a review of the materials that had been filed, the court concluded that a presumption of abuse arose and that the case should be dismissed under § 707(b)(2).
The first question the court must address is whether the bankruptcy court’s conclusion based on the facts before it constituted clear error. Although the Reeds arguе that they reached an agreement with UST, they do not proffer evidence that the bankruptcy court’s calculations were incorrect or that its determination that a presumption of abuse arose and was not rebutted constituted clear error. Instead, the Reeds’ argument with respect to the bankruptcy court’s decision under § 707(b)(2) is focused almost entirely on whether the UST’s Ten-Day Statement was timely.
To the extent the Reeds challenge the bankruptcy court’s factual conclusion that a presumption of abuse arose under § 707(b)(2), they do not dispute the court’s calculations and conclusions based on the evidence before it; rather, they challenges the court’s decision not to consider the unfiled means test.
54
An appellate court will not consider “issues which are not specifically and distinctly argued and raised in a party’s opening brief.”
Arpin v. Santa Clara Valley Transp. Agency,
The bankruptcy court’s decision not to consider the unfiled means test is essentially an evidentiary ruling. Such rulings are reviewed for abuse of discretion.
In re Gergely,
It does appear that the parties agreed just prior to the hearing on numbers that differed from those submitted to the bankruptcy court. The UST did not withdraw its motion to dismiss under § 707(b)(2), however, and Judge Riblet acted within her discretion in declining to consider a fourth means test that the Reeds did not attempt to file until the day of the hearing. Although the Reeds suggest they were unaware of certain deficiencies in their calculations until the weekend before the hearing, they clearly had ample time to review the means tests that had been filed and to submit the updated information before the day of the hearing. The Reeds initiated the bankruptcy proceeding in November 2006. The hearing on the UST’s motion did not take place until May 2007. 55 The bankruptcy court relied on numbers submitted in support of the Reeds’ opposition to the motion, which was filed on March 26, 2007. The Reeds do not explain in any way why it took so long to prepare a further amended means test. Given the lack of explanation or justification for their delay, the bankruptcy court did not abuse its discretion in declining to consider the fourth means test.
In sum, the court finds that the UST’s motion to dismiss was not time-barred. The Reeds have not argued on appeal that the bankruptcy court’s factual finding that a presumption of abuse arose was incorrect or unsupported. Rather, they contended that the court erred in declining to consider the fourth means test. Because the bankruptcy court did not abuse its discretion in declining to consider the new means test, dismissal under § 707(b)(2) was appropriate.
D. Dismissal Under 11 U.S.C. § 707(b)(3)
Because the court concludes that dismissal under § 707(b)(2) was appropriate, it upholds the bankruptcy court’s order granting the motion to dismiss. Even were the court to conclude that the bankruptcy court abused its discretion in dismissing under § 707(b)(2), however, it would have to address whether dismissal *230 was appropriate under § 707(b)(3), as the bankruptcy court relied on this provision in the alternative. It stated:
“The ruling is on (b)(3). It is also on (b)(2) .... [0]n (b)(3)[,] [ujnder all the circumstances, as long as Mrs. Reed is not working and her son is in sсhool being six years old, she’s not entitled. It’s not a reasonable expense to have $333.00 a month for child care. Now I know of no circumstances which make that reasonable. So the motion is granted.” 56 As is clear, separate and apart from the presumption of abuse under § 707(b)(2), the bankruptcy court found that the case should be dismissed under § 707(b)(3). This ruling is reviewed for abuse of discretion.
As a threshold matter, the Reeds question whether abuse can be found under § 707(b)(3) because the they are over the median debtors 57 who claim to have rebutted the presumption of abuse under § 707(b)(2). 58 11 U.S.C. § 707(b)(3) states that:
“In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption [of abuse] in [under § 707(b)(2)] does not arise or is rebutted, the court shall consider ... the totality of the circumstances” (emphasis added).
The plain language of the statute is unambiguous. Section 707(b)(3) applies where the presumption of abuse does not arise, or as the Reeds claim was the case here, where the presumption of abuse under § 707(b)(2) is rebutted. The bankruptcy court in
Singletary
affirmed this interpretation of the statute, stating that a debtor may still face dismissal under § 707(b)(3) even if a presumption of abuse has not arisen under § 707(b)(2) or has been rebutted.
Singletary,
*231 1. Whether A Ten-Day Statement Is Required for Dismissal Under
§ 707(b)(3) Even had the court concluded that the UST failed to file a timely Ten-Day Statement under § 704(b)(1) and thus that he was barred from seeking dismissal of the Reeds’ ease under § 707(b)(2), the untimely Ten-Day Statement would not prevent the UST from seeking dismissal under § 707(b)(3). In
Byme,
the UST filed a Ten-Day Statement similar to the first one filed in this case, stating that whether or not a presumption of abuse arose could not immediately be determined.
Id,
at 702. The bankruptcy court determined that this statement did not meet statutory requirements, and thus dismissal under § 707(b)(2) was barred.
Id.
It held, however, that “the ten day statement under § 704(b)(1) is superfluous to a filing under § 707(b)(3),” and that “[e]ven though the UST failed to file a definitive statement as required under § 704(b)(1), ... [she] still ha[d] the right to proceed under § 707(b)(3)....”
60
Id.
at 704; see
Perrotta,
As the Byme court held, dismissal of a debtor’s case under § 707(b)(2) and dismissal under § 707(b)(3) are distinct alternatives. The time limitations imposed by § 704(b)(1) apply only to motions to dismiss under § 707(b)(2). Motions under § 707(b)(3) are governed by the broader rule that a motion to dismiss for substantial abuse must be brought within 60 days of the first date set for the § 341(a) meeting of creditors. See Fed. R. BanxR.PROc. 1017(e)(1) (“A motion to dismiss a case for substantial abuse may be filed by the United States trustee only within 60 days after the first date set for the meeting of creditors under § 341(a), unless, on request filed by the United States trustee before the time has expired, the court for cause extends the time for filing the motion to dismiss”). Because the UST’s motion was filed within 60 days of the first scheduled meeting of creditors, the UST was not precluded from seeking dismissal of the Reeds’ case under § 707(b)(3), notwithstanding any procedural defect that may have affected his motion under § 707(b)(2).
*232 2. Whether Dismissal Under § 707(b)(3) Was an Abuse of Discretion
The bankruptcy court dismissed the Reeds’ case under the totality of the circumstances test of § 707(b)(3) because it found that their monthly child care expenses were unreasonable and they had between $500-$700 in disposable monthly income.
61
The Reeds argue that “ability to pay” is an analysis reserved for and incorporated in the Means Test of § 707(b)(2). Thus, they assert, considering their ability to pay under § 707(b)(3) was “duplicative and unnecessary.”
62
The Reeds cite
In re Nockerts,
In a case similar to this one, the debtors in
In re Barnett
No. 06-62414,
(“[P]ost-BAPCPA § 707(b)(3)(B) specifically delineates the pertinent inquiry as the ‘totality of the circumstances of the debtor’s financial situation.’ ... Thus, the debtor’s total financial situation as a measure of ability to pay, and bad faith are separate and sufficient grounds for dismissal. Either ability to pay or bad conduct in connection with the bankruptcy will warrant dismissal for abuse under § 707(b)(3)”); In re McGillis,370 B.R. 720 , 746 n. 30 (Bankr.W.D.Mich.2007) (“I, like the courts in Henebury and [In re] Pfeifer, [365 B.R. 187 (Bankr.D.Mont.2007),] respectfully disagree with Nockerts ’ determination that a debtor’s ability to pay cannot alone warrant dismissal of a Chapter 7 proceeding unless the Section 707(b)(2) presumption also applies”); In re Haar,373 B.R. 493 , 499 (Bankr.N.D.Ohio 2007) (“[The] In re Nockerts ... court, in finding that more than just an ability to pay must be shown to demonstrate abuse, was applying the ‘old’ totality of the circumstances test — that is, the pre-BAPCPA test.... Even with the advent of BAPCPA, it is difficult to see how, as the Debtors argue, the ‘means test’ of § 707(b)(2) would be rendered ‘meaningless’ if a case could be dismissed under § 707(b)(3) based solely upon a debtor’s ability to pay. Sections 707(b)(2) and 707(b)(3) serve entirely different functions. On the one hand, the ‘means test’ *233 of § 707(b)(2) is a rigid, mechanical formula which, under certain conditions, gives rise to a presumption of abuse which the debtor may then rebut. By comparison, § 707(b)(3) is an equitable test, with it being incumbent upon the movant to sustain a showing that the necessary conditions exist to warrant dismissal”).
Indeed, § 707(b)(3)(B) plainly provides that “the court ... consider ... the totality of the circumstances ...
of the debtor’s financial situation
demonstrates abuse.” 11 U.S.C. § 707(b)(3)(B) (emphasis added). This necessarily requires an examination of a debtors’ ability to pay in addition to other factors. See
id.
at *4; see also
In re Lenton,
Consequently, the bankruptcy court was permitted to consider the Reeds’ ability to pay in evaluating whеther there had been abuse under the totality of the circumstances. The Reeds assert that mere ability to pay is insufficient to find abuse under the totality of the circumstances test, and that there “must be more.”
63
The
Nockerts
court held that determining abuse under the totality of the circumstances requires looking into the debtors ability to pay along with “additional evidence.”
Nockerts,
In this case, the bankruptcy court premised its dismissal under § 707(b)(3) on the fact that the Reeds’ child care expenses were unreasonable&emdash;and thus that the proposed family budget was unreasonable. In calculating monthly disposable income under the Means Test, the Reeds classified child care expense of $333.66 as an “Other Necessary Expense.” 64 The UST disputed not only the *234 reasonableness of the expense but the amount clаimed by the Reeds, noting that their receipts showed only $293.38 in child care expenses. The bankruptcy court agreed that the expense was not reasonable, noting that Mrs. Reed was unemployed and had ample time to care for her child. 65 The court observed that it knew “of no circumstances which [would] make [such an expense] reasonable” given that Mrs. Reed had “[at least] half a day to herself every day.” 66 When the claimed child care expenses were added back to monthly income, the Reeds were in a position to pay 84% of their debt over the sixty-month period of a Chapter 13 plan. 67 Citing this fact, the bankruptcy court found that the case should be dismissed under § 707(b)(3) because the totality of the circumstances showed that the Reeds’ filing was an abuse of Chapter 7. 68
In reviewing for an abuse of discretion, the court “may only reverse if it is left with a definite and firm conviction that the bankruptcy court committed a clear error in judgment.”
Haney v. Clippard,
No. 4.-06CV-150,
III. CONCLUSION
For the reasons stated, the order of the bankruptcy court is affirmed.
Notes
. Excerpt of Record (hereinafter "ER”) at 1.
. Appellee’s Opening Brief at 4.
.A presumption of abuse arises when a debt- or's Means Test indicates that he or she has enough monthly disposable income to pay *218 some or all of his or her debts over a period of five years. A debtor's ability to pay is dependent on Current Monthly Income (hereinafter "CMI”) as defined in 11 U.S.C. § 101(10A). If the debtor's CMI is above the state median family income (as it was in this case), then monthly disposable income is calculated by subtracting from the CMI the expenses outlined in 11 U.S.C. § 707(b)(2)(A)(ii), (iii), and (iv). If the debt- or's disposable income is equal to or exceeds $167 per month, a presumption of abuse arises. (Appellee's Brief at 4 (referring to the calculation laid out in the statute and noting that, at the time this case was filed, § 707(b)(2)(A)(i)(II) stated that the disposable income cutoff was $10,000 over 60 weeks or $167 per month).) The Reeds do not dispute that $167 is the statutory cut-off amount.
. ER at 37-41.
. ER at 24-25.
. ER at 324-325.
. ER at 326.
. ER at 326-327.
. ER at 77. 11 U.S.C. § 704(b)(1)(A) of the Bankruptcy Code states in part that the UST "shall review all materials filed by the debtor and, not later than 10 days after the date of the first meeting of creditors, file with the court a statement as to whether the debtor's case would be presumed to be an abuse under section 707(b).”
. ER at 146.
. ER at 80-83.
. ER at 89. The Reeds maintain that a presumption of abuse does not arise based on the original Means Test numbers filed. However, the UST alleges that based on their actual wages, the Means Test should read $576.51.
. Appellee's Brief at 11 (comparing ER at 37-41 with ER at 167-171).
. ER at 330.
. ER at 331-334.
. The Reeds specify that their childcare expenses are $333.66 a month on line 30 of their Schedule J form. (ER at 221.) Based on the Reeds’ сhildcare receipts, however, the UST calculated that the actual expense was $293.33. (ER at 303.)
. The bankruptcy court continued the hearing from April 25 to May 16, 2007. (ER at 224-226.)
.ER at 285.
. ER at 297-298.
. ER at 297.
. ER at 290, 303.
. ER at 302-303.
. ER at 304.
. The bankruptcy court calculated disposable income of $500 using the Reeds' amended tax returns. It calculated disposable income of $770 using the tax amounts reported on the Reeds’ Schedule J. The presumption arose regardless of the number used. (ER at 304-305.)
. ER at 294, 300.
. ER at 294.
.ER at 295.
. ER at 247.
. ER at 251
. § 707(b)(2) also permits the UST to convert debtor’s case into Chapter 11 or Chapter 13 with debtor’s consent.
. Appellant's Opening Brief at 1.
. The Cadwallder court noted, however, that the Federal Rules of Bankruptcy Procedure provided “a uniform and clear deadline for filing” such a motion, i.e., sixty days after the § 341(a) meeting. Id. at *6.
. ER at 297.
. Appellant’s Brief at 8-9.
.Appellee's Brief at 18-19.
.The UST’s January 17, 2007 statement read: "[T]he United States Trustee is currently unable to determine whether the Debtor’s case would be presumed to be an abuse under Section 707(b) of the Bankruptcy Code.” The subsequent filing on February 15, 2007 stated: "Based on the information the Debtors have provided to date, the United States Trustee has determined that a presumption of abuse arises in the presеnt case.” (ER at 77, 81.)
. Appellant’s Brief at 9 ("[t]he notice of abuse was filed on 2/15/2007”).
. ER at 317-19 (docket entries indicating the first § 341(a) meeting took place on January 8, 2007 and the last on May 14, 2007).
. See also, Mark A. Neal, Sandra Manoc-chio, Means Testing: The Heart of BAPCPA, 40 JUN Md. B.J. 26, 28 (May/June 2007) ("Once a case has been identified as presumptively abusive, the U.S. Trustee must file a statement of presumed abuse within 10 days after the conclusion of the first meeting of creditors” (emphasis added)).
. ER at 325.
. See, e.g., 11 U.S.C. § 521(a)(2)(B) ("within 30 days after the first date set for the meeting of creditors ...”); id. § 521(a)(6) ("not later than 45 days after the first meeting of creditors ...”); id. § 521(e)(2)(A)(i) ("not later than 7 days before the date first set for the meeting of creditors ...”); id. § 1308(a) ("not later than the day before the date on which the meeting of the creditors is first scheduled to be held under section 341(a)"); id. § 1324(a) ("not earlier than 20 days and not later than 45 days after the date of the meeting of creditors under section 341(a)”).
. The statute consistently refers to the "meeting of the creditors” as a singular event. See 11 U.S.C. § 1308(a) ("not later than the day before the date on which the meeting of the creditors is first scheduled to be held under section 341(a)”). The fact that the statute refers to a "first date set” contemplates continuances of the meeting and the possibility that it will occur on multiple dates. To conclude that "first meeting” refers only to the date first set would mean that each continued date on which the meeting convened constituted a new and different meeting. This interpretation is at odds with the import of the statute.
. The fact that the UST filed a statement ten days after the first scheduled date for the § 341(a) meeting demonstrates that there is some confusion as to when the ten-day period begins to run. As noted, courts are not in agreement on this point.
. Because the Reeds reported contradictory CMIs that varied by approximately $1,700, the UST could not determine what their true disposable monthly income was. (Appellee's Brief at 9.) Since a presumption of abuse arises when Disposable Monthly Income exceeds $167, it was impossible for the UST to determine whether a presumption of abuse arose. (Id. at 4.)
. ER at 80.
. 11 U.S.C. § 704(b)(2) requires that within thirty days of filing the Ten-Day Statement, the UST must file either a motion to dismiss under § 707(b)(2) or a statement as to why dismissal is inappropriate. Since the UST filed its supplemental statement on February 15, and its motion to dismiss on February 16, the motion to dismiss was timely.
. ER at 304; see also ¿d. 194-98.
. The court "came up with a net of $770.00 because [the court] used taxes from schedule J, not from the means test. They should be the same figure. Even using [the Reeds’ figures] it was over $500.00 a month.” (ER at 304-05.)
. ER at 290, 303.
. When the Reeds' attorney attempted to bring up the revised figures on which the debtors and the UST had agreed, the bankruptcy court stated: "I don’t care what you agreed with [the UST], If he's using cockamamie numbers too, I’m not going to approve it.” (ER at 295.) The new means test was never filed and is not part of the record. The court is thus unable to evaluate whether or not the parties’ representations regarding it were well founded.
. ER at 304-05.
. The precise scope of the parties' agreement is not clear. At the hearing, the UST stated that "[the Reeds’] figures that [they] came up with Monday or Tuesday ... -again, it's not a filed means test but it appears correct that $54.98 but that is net.... Net income. What we are arguing about is the child care expenses of $293.00.” (ER at 302.)
. The UST submitted the original means test, together with schedules I аnd J, in support of his motion to dismiss. (See ER at 101-05, 130-31.) The Reeds submitted the Second Amended Means Test and a copy of Schedule J with their opposition. (See ER at 194-98, 217.) It appears that the Reeds filed only one version of Schedules I and J. Schedule I provides an itemized calculation of the current income of the individual debtors. (See ER at 130.) Schedule J provides an itemized calculation of the current expenditures of the individual debtors. (See ER at 131.)
.The only argument the Reeds advance regarding the bankruptcy court's factual finding is the assertion that the court should have considered the third amended means test, which the UST had agreed was accurate, and which showed disposable income of $54.98. (Appellant’s Opening Brief at 27.) This argument occupies less than half of a page of the Reeds’ 28 page opening brief. While the Reeds argue that the bankruptcy court erred in declining to consider a evidence that was not presented to it until the day of the hearing, they do not explain why that decision was erroneous.
. In the intervening time, the § 341(a) meeting was continued numеrous times so that the Reeds could address discrepancies between their documentation and multiple amended means tests.
. ER at 305.
. An “over the median debtor” is a debtor whose annualized current monthly income exceeds the state median. A presumption of abuse can arise only if the debtor's current monthly income exceeds the state median for a household of like size.
In re Naut,
. Rebutting a presumption of abuse under § 707(b)(2) requires that the debtor prove "special circumstances” that justify additional monthly expenses; this necessitates evidence that there is "no reasonable alternative other than to allow the additional expense.”
Scara-fiotti,
.The Reeds contend that they rebutted the presumption of abuse by filing further amended means tests. They do not challenge the bankruptcy court's factual finding that a presumption of abuse arose, or the calculations it used to support such a conclusion. In the main, the Reeds argue that the UST’s motion was untimely. It is thus unclear how the Reeds believe they rebutted the presumption of abuse. Had the Reeds prevailed on their timeliness argument under § 707(b)(2), the court would look to § 707(b)(3) not because the presumption of abuse had been rebutted, but because the UST had failed to establish the existence of a presumption in the first instance. Presumably, the Reeds rely on the fourth amended means test; to rebut the presumption under § 707(b)(2), however, the Reeds would still have had to show that special circumstances justified the claimed child care expenses. It is clear from the bankruptcy court’s comments on the record that it did not deem that outlay to be reasonable.
. The full text of the Byme court’s statement is as follows: "[The UST] still has the right to proceed under § 707(b)(3) based on the debt- or's representation that a presumption does not arise in this case." Id. at 704 (emphasis added). This italicized portion of the court's statement addressed an issue that is not present here. Section 707(b)(3) states that to seek dismissal under that section, a presumption must either not have arisen or have been rebutted. In Byme, a presumption had arisen, but the matter could not be dismissed under § 707(b)(2) because the UST’s Ten-Day Statement was insufficient. Because the debtor did not rebut the presumption of abuse, § 707(b)(3) was arguably inapplicable. The debtor, however, had stated on his Means Test Form that “a presumption did not arise.” Based on this representation, the court held that the provisions of § 707(b)(3) applied. Id. The Reeds’ case, by contrast, was subject to dismissal under § 707(b)(3) either because (1) a presumption arose under § 707(b)(2), which the Reeds rebutted it; or (2) their monthly disposable income was only $54.98 and no presumption of abuse arose.
. ERal 304-305.
. Appellant’s Brief at 16.
. Appellant’s Brief at 22.
. ER at 221.
. ER at 300.
. ER at 300.
. ER at 295.
. Although not addressed at the hearing, the UST also noted that dismissal under § 707(b)(3) was appropriate given the discrepancies between Schedules I and J and the many means tests the Reeds filed. As noted, Schedules I and J reflect that the Reeds have monthly disposable income of $186.46. This number was inconsistent with the figures set forth in the Reeds’ original Means Test; each of the subsequent Means Tests, moreover, contained markedly varying numbers. In each of the three Means Tests that were filed, for example, the Reeds offered different numbers for "Gross Income,” "Taxes,” and "Health Care.” (See ER at 226 (summarizing the three Means Tests).) While the first two means tests did not reference child care or health insurance expenses, the third included both.
(Id.)
Given the inconsistencies in the Reeds’ filings throughout the proceeding, the bankruptcy court may well have concluded that the Reeds’ filings did not "accurately reflect [their] true financial condition”
Nockerts,
. The Reeds argue that the bankruptcy court should have granted a continuance and allowed further briefing and discovery respecting the child care expense. They did not argue before the bankruptcy court, and offer no argument here, however, that the child care expense was reasonable. What purpose additional briefing would have served is therefore unclear.
The Reeds’ only argument at the hearing was that Mrs. Reed was "looking for work.” (ER at 294.) Judge Riblet responded that, "[i]f she finds work, then she can jolly well get childcare but while she is not employed the Court find[s] that it is not a reasonable expense.”
(Id.;
see also
id.
at 300 (“I am also ruling under (b)(3) that this is abuse because so long as Mrs. Reed is not employed and her son is in school. He’s six years old. She has half a day to herself every day at least even if he's in Kindergarten that she doesn’t need childcare. It's not a reasonable expense at this time”).) After the bankruptcy court made this statement, the Reeds offered no facts that would have permitted the court to conclude that a continuance would have led to a different outcome. A bankruptcy court does not abuse its discretion in denying a continuance where the requesting party "[does] not indicate how additional time and investigation would yield the required evidence.”
In re La Sierra Financial Services, Inc.,