United States Trustee v. Cortez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-10459

In Re: CARLOS VICENTE CORTEZ; SUZANNE HALLMAN CORTEZ

Debtors

UNITED STATES TRUSTEE

Appellee

v.

CARLOS VICENTE CORTEZ; SUZANNE HALLMAN CORTEZ

Appellants

Appeal from the United States District Court
for the Northern District of Texas

Before KING, STEWART and DENNIS, Circuit Judges.

KING, Circuit Judge:

This case arises from the debtors’ bankruptcy filed under

Chapter 7 on April 8, 2004, and the United States Trustee’s

motion to dismiss for substantial abuse filed under 11 U.S.C.

§ 707(b) on July 9, 2004. The issue presented on appeal is

whether a bankruptcy court should consider post-petition events

in deciding whether to dismiss a case for substantial abuse under

§ 707(b). The bankruptcy court determined that post-petition

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events should not be considered, and the district court reversed,

holding that such circumstances should be considered in

determining substantial abuse. Based on the version of § 707(b)

that applied to cases filed before the Bankruptcy Abuse

Prevention and Consumer Protection Act of 2005, we AFFIRM the

district court’s judgment and REMAND the case to the district

court with instructions to remand it to the bankruptcy court for

further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual and Procedural History

On April 8, 2004, Carlos Vicente Cortez and Suzanne Hallman

Cortez (collectively, “the Cortezes”) jointly filed for

bankruptcy under Chapter 7. In addition to their voluntary

petition, the Cortezes filed their schedules, showing one secured

claim in the amount of $176,000 on their homestead and unsecured

debt in the amount of $85,719, the majority of which consisted of

credit card debt. Schedule I listed the Cortezes’ net income as

$4147 per month, and Schedule J listed the Cortezes’ total

expenses as $5320 per month. At that time, Mr. Cortez was

unemployed and Mrs. Cortez was employed as a registered nurse, so

all of the income listed on Schedule I was attributable to Mrs.

Cortez.1

1
Mr. Cortez lost his job in late 2003 and was unemployed
from January 1, 2004, through April 8, 2004. Prior to Mr.
Cortez’s unemployment, the Cortezes had combined annual income of

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 At the bottom of Schedule I, debtors are instructed to

“[d]escribe any increase or decrease of more than 10% in any of

the above categories anticipated to occur within the year

following the filing of this document.” In response, the

Cortezes disclosed that Mr. Cortez “believes he will be employed

this month, but he has not started working yet.”

On April 12, 2004, four days after the Cortezes filed for

Chapter 7, Mr. Cortez was offered a position with Aramark

Healthcare Management Services (“Aramark”) as the Human Resource

Director. Mr. Cortez accepted the position and began working for

Aramark on April 26, 2004. As the Human Resource Director, Mr.

Cortez earned an annual salary of $95,000, making his net income

$5896 per month, and received a $5000 signing bonus after sixty

days of employment. Mr. Cortez was also eligible to receive a

company car.

After Mr. Cortez began working for Aramark, Mrs. Cortez

reduced her hours so that her net income as of October 1, 2004,

was approximately $750 per month. With Mr. Cortez’s new job and

Mrs. Cortez’s reduced hours, the Cortezes’ net income was $6646

per month, exceeding their expenses by $1325 per month. The

Cortezes provided documents to the United States Trustee

(“Trustee”) showing that Mr. Cortez was employed by Aramark and

testified to the same at the § 341 meeting of the creditors on

$145,600 in 2003, and $147,363 in 2002.

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May 10, 2004.

On July 9, 2004, the Trustee filed a motion to dismiss under

11 U.S.C. § 707(b), asserting that the Cortezes “appear to have

the means to repay a substantial portion of their debts through a

Chapter 13 plan,” given that the Cortezes’ income now exceeded

their expenses by $1325 per month, and that it would therefore be

a substantial abuse to grant the Cortezes’ relief under Chapter

7. On July 28, 2004, the Cortezes filed their response,

contending that Mr. Cortez was unemployed at the time they filed

their Chapter 7 petition and that it was inappropriate for the

court to consider post-petition events, including Mr. Cortez’s

employment with Aramark, in deciding whether to dismiss their

case under § 707(b).

B. Bankruptcy Court’s Decision

On November 5, 2004, the bankruptcy court denied the

Trustee’s motion to dismiss, concluding “that post-petition

events should not be considered in deciding whether to dismiss a

case under section 707(b) unless the events were clearly in

prospect at the time of filing for bankruptcy.” Relying on In re

Pier, 310 B.R. 347, 355 (Bankr. N.D. Ohio 2004), the bankruptcy

court interpreted the phrase “granting of relief” in § 707(b) to

mean an “order for relief,” which occurs at the commencement of

the case, under 11 U.S.C. § 301. The bankruptcy court reasoned

that its analysis must therefore “focus on whether the order for

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relief granted on the Petition Date by operation of section 301

was proper, not whether substantial abuse would occur if the

court were to grant that same relief for the first time today.”

The bankruptcy court concluded that it was barred from

considering facts that arose after the commencement of the case

in deciding substantial abuse under § 707(b). In other words,

the bankruptcy court determined that it could consider the

circumstances only as they existed on the petition date,

“including anticipating post-petition events known to be in

prospect at the time of filing.”

The bankruptcy court explained that using the date of filing

for deciding whether substantial abuse exists was consistent not

only with the language of §§ 301 and 707(b), but also with the

Bankruptcy Code’s general policy of using the filing date to

determine a party’s rights in a bankruptcy case. The bankruptcy

court pointed out that the automatic stay under § 362, the

debtor’s entitlement to exemptions under § 522, and the

determination of secured claims under § 506, among other Code

provisions, all use the petition date as the point of reference.

Applying its interpretation of § 707(b) to the Cortezes’

case, the bankruptcy court found that Mr. Cortez’s post-petition

employment could not be considered because it was not an event

clearly in prospect at the petition date.2 Given that it could

2
The bankruptcy court provided an example of an event
“clearly in prospect” at the petition date. According to the

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not consider Mr. Cortez’s post-petition improvements in earnings,

the bankruptcy court concluded that the debtors did not have the

ability to fund a Chapter 13 plan and therefore denied the

Trustee’s motion to dismiss.

C. District Court’s Decision

On March 9, 2005, the district court reversed the bankruptcy

court’s order, holding that the language of § 707(b) makes clear

“[t]hat post-petition events are to be taken into account in

ruling on a motion under § 707(b).” The district court explained

that § 707(b) specifically instructs courts not to consider

whether a debtor has made, or continues to make, charitable

contributions. The district court reasoned that the fact that no

other limitations are placed on the court in ruling on such

motions provides sufficient support for its conclusion that the

text of § 707(b) takes post-petition events into account, except

to the extent that the debtor continues to make charitable

contributions.

The district court also distinguished In re Pier, 310 B.R.

347, the primary case the bankruptcy court relied on in its

bankruptcy court, if Mr. Cortez had reached an oral agreement to
begin employment at Aramark or had received a formal letter from
Aramark prior to the petition date, it would be proper to
consider his employment with Aramark in deciding whether the
Cortezes have the ability to repay their creditors. Given that
Mr. Cortez did not receive an offer of employment with Aramark
until after the Cortezes filed for Chapter 7, the bankruptcy
court concluded that Mr. Cortez’s employment was not clearly in
prospect on the petition date.

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interpretation of § 707(b), as standing “for the proposition that

a later change in circumstances will not necessarily save a

bankruptcy whose original filing was a substantial abuse of the

provisions of Chapter 7.” The district court explained that

[s]uch is not the case here, where the issue is whether
debtors have the ability to make significant payments to
their creditors from future income. Moreover, there was
no need for the bankruptcy court to rely on Pier in
making a case for assessing a § 707(b) motion as of the
time of filing of a petition. All of the pertinent
authorities implicitly, if not explicitly, recognize that
a debtor’s current and future expected income is to be
taken into account in determining whether the debtor is
in need of Chapter 7 relief.

(citing Behlke v. Eisen (In re Behlke), 358 F.3d 429, 434-35 (6th

Cir. 2004), Stuart v. Koch (In re Koch), 109 F.3d 1285, 1288 (8th

Cir. 1997), and In re Laman, 221 B.R. 379, 381 (Bankr. N.D. Tex.

1998)).

D. Subsequent Proceedings

On March 4, 2005, while the case was on appeal to the

district court, Mr. Cortez lost his job at Aramark. The Cortezes

contend that the district court was unable to consider Mr.

Cortez’s job loss because the district court issued its order and

final judgment on March 9, 2005, without oral argument and before

the Cortezes could file a reply brief advising the district court

of their post-petition change in financial circumstances. As of

May 2, 2006, Mr. Cortez was still unemployed.

On April 7, 2005, the Cortezes filed this appeal, arguing

that (1) the district court erred in concluding that § 707(b)

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takes into account post-petition events, and (2) the district

court erred in limiting the bankruptcy court’s ability to

consider additional post-petition changes on remand, such as Mr.

Cortez’s job loss and current unemployment.

II. DISCUSSION

A. Jurisdiction

Before addressing the merits of this dispute, we first must

consider whether we have jurisdiction to hear this appeal.

Although neither party raised the issue before this court, “‘we

are obligated to examine the basis for our jurisdiction, sua

sponte, if necessary.’” Chunn v. Chunn (In re Chunn), 106 F.3d

1239, 1241 (5th Cir. 1997) (quoting Williams v. Chater, 87 F.3d

702, 704 (5th Cir. 1996)).

We have jurisdiction to hear “appeals from all final

decisions, judgments, orders, and decrees” in bankruptcy matters

entered under § 158(a) and (b). 28 U.S.C. § 158(d)(1); see also

Andrews & Kurth L.L.P. v. Family Snacks, Inc. (In re Pro-Snax

Distribs., Inc.), 157 F.3d 414, 420 (5th Cir. 1998) (observing

that this court is “limited to reviewing only final orders” under

§ 158(d)). “[W]hen a district court sitting as a court of

appeals in bankruptcy remands a case to the bankruptcy court for

significant further proceedings, the remand order is not ‘final’

and therefore not appealable under § 158(d).” Conroe Office

Bldg. Ltd. v. Nichols (In re Nichols), 21 F.3d 690, 692 (5th Cir.

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1994).

In determining what constitutes “significant further

proceedings,” we distinguish between those remands requiring the

bankruptcy court to perform “judicial functions” and those

requiring mere “ministerial functions.” See Beal Bank, S.S.B. v.

Caddo Parish-Villas S., Ltd. (In re Caddo Parish-Villas S.,

Ltd.), 174 F.3d 624, 627-28 (5th Cir. 1999). Remands that

require the bankruptcy court to perform judicial functions, such

as additional fact-finding, are not final orders and, therefore,

are not appealable to this court. See Aegis Specialty Mktg.,

Inc. v. Ferlita (In re Aegis Specialty Mktg., Inc.), 68 F.3d 919,

921 (5th Cir. 1995). “However, if the remand involves only

ministerial proceedings, such as the entry of an order by the

bankruptcy court in accordance with the district court’s

decision, then the order should be considered final.” In re

Caddo, 174 F.3d at 628 (internal quotation marks and citation

omitted).

In this case, the district court reversed the bankruptcy

court’s order denying the Trustee’s motion to dismiss under

§ 707(b), and remanded the case to the bankruptcy court “to allow

[the Cortezes] to take action to convert to a Chapter 13

proceeding within ten days from the date of this order;

otherwise, the bankruptcy court is instructed to dismiss the

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proceeding.”3 We are satisfied that this remand order leaves

only ministerial tasks for the bankruptcy court and therefore

constitutes a final order under § 158(d). See In re Pro-Snax,

157 F.3d at 420-21 (concluding that jurisdiction exists under

§ 158(d) where “[t]he district court’s remand order neither

necessitates further fact-finding nor the use of substantial

discretion on the part of the bankruptcy court”); see also In re

Caddo, 174 F.3d at 628 (stating that a remand order is final if

all that remains to do on remand is “purely mechanical” or “mere

entry of an order in accordance with the district court’s

decision”). Because we conclude that we have jurisdiction

pursuant to § 158(d), we turn to the merits of this appeal.

B. Construction of 11 U.S.C. § 707(b)

This case, one of first impression in this circuit, requires

us to determine whether dismissal for “substantial abuse” in

§ 707(b) includes a consideration of post-petition events, a

question of law that we review de novo. See Sec. State Bank v.

IRS (In re Van Gerpen), 267 F.3d 453, 455-56 (5th Cir. 2001).

Section 707(b), in relevant part, provides that

the court, on its own motion or on a motion by the United
States trustee, . . . may dismiss a case filed by an
individual debtor under this chapter whose debts are
primarily consumer debts if it finds that the granting of

3
At oral argument, counsel for the Trustee explained that
this was not the relief requested by the Trustee. Instead, the
Trustee requested that the district court reverse the bankruptcy
court’s legal determination and remand the case to the bankruptcy
court for a determination on the § 707(b) motion to dismiss.

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 relief would be a substantial abuse of the provisions of
this chapter. . . . In making a determination whether to
dismiss a case under this section, the court may not take
into consideration whether a debtor has made, or
continues to make, charitable contributions . . . .

11 U.S.C. § 707(b).4 Whether subsequent improvements in the

debtor’s earnings warrant dismissal is not directly answered by

the text itself.5 Still, as with any statutory analysis, we

begin with the words of the statute, keeping in mind that “the

meaning of statutory language, plain or not, depends on context.”

Brown v. Gardner, 513 U.S. 115, 118 (1994) (quoting King v. St.

Vincent’s Hosp., 502 U.S. 215, 221 (1991) (citing Shell Oil Co.

v. Iowa Dep’t of Revenue, 488 U.S. 19, 26 (1988))).

The statute conditions dismissal on a finding “that the

granting of relief would be a substantial abuse of the provisions

of this chapter.” 11 U.S.C. § 707(b). Although “granting of

relief” is undefined, its context reveals that it is referring to

a Chapter 7 discharge, and not the relief associated with the

4
On April 20, 2005, Congress enacted the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005 (“2005 Act”), Pub.
L. No. 109-8, 119 Stat. 23 (2005), which amended § 707(b), inter
alia, to set forth a financial means test for determining whether
a Chapter 7 case is presumed to be an abuse and also set forth
certain other criteria to be considered when such a presumption
does not arise. See Pub. L. No. 109-8, § 102. Because these
amendments apply only to cases commenced on or after October 17,
2005, they are not relevant to this appeal.
5
The parties do not contest that the Cortezes are
individuals and that their debts are primarily consumer debts,
two of the threshold requirements under § 707(b), leaving us to
decide only whether a court can consider post-petition events in
determining substantial abuse under the statute.

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commencement of the case under § 301. First, the phrase

“provisions of this chapter” refers to Chapter 7, the chapter in

which § 707(b) is located. Section 727, the relief under Chapter

7, discharges the debtor from all debts that arose before the

filing of the petition. See id. § 727(b). That “granting of

relief” means a discharge under § 727 and not an order for relief

under § 301 is also evident from the use of the words “would be”

following “granting of relief,” indicating that the relief is to

take place sometime in the future. This interpretation is

consistent with the bankruptcy procedural rules, which delay

granting a § 727 discharge when a motion to dismiss under

§ 707(b) is pending. See FED. R. BANKR. P. 4004(c)(1)(D).

Finally, the courts of appeals considering § 707(b) have

implicitly, if not explicitly, recognized that “granting of

relief” means a Chapter 7 discharge. See First USA v. Lamanna

(In re Lamanna), 153 F.3d 1, 3 (1st Cir. 1998) (“Section 707(b)

was enacted to impose a restraint on consumer debtors’ access to

Chapter 7 discharge by interposing bankruptcy courts as

gatekeepers who could examine the worthiness of debtor petitions

and dismiss those petitions deemed abusive.”) (emphasis added);

U.S. Trustee v. Harris (In re Harris), 960 F.2d 74, 75 (8th Cir.

1992) (stating that § 707(b) “permits the bankruptcy court to

dismiss a Chapter Seven proceeding if it finds that granting a

discharge ‘would be a substantial abuse of the provisions of this

chapter’”) (emphasis added); see also 6 COLLIER ON BANKRUPTCY

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¶ 707.04[5][a] (15th ed. rev. 2006) (“In determining whether a

substantial abuse exists, there is a presumption in favor of

granting the relief sought by the debtor, i.e., a discharge.”).

Therefore, we think that the “granting of relief” in § 707(b) is

referring to the relief associated with Chapter 7, the discharge

of all debts under § 727, and not the relief associated with the

commencement of the case under § 301.6

Section 707(b) does not condition dismissal on the filing of

bankruptcy being a “substantial abuse” but rather on the granting

of relief, which suggests that in determining whether to dismiss

under § 707(b), a court may act on the basis of any development

occurring before the discharge is granted. Other language in

§ 707(b) supports this view and indicates that a substantial

abuse determination is forward looking. The last sentence in

§ 707(b) states that “[i]n making a determination whether to

dismiss a case under this section, the court may not take into

consideration whether a debtor has made, or continues to make,

charitable contributions . . . .” 11 U.S.C. § 707(b) (emphasis

6
The bankruptcy court relied on In re Pier, 310 B.R. 347,
a bankruptcy court decision from the Northern District of Ohio,
in concluding that the “granting of relief” referred to an “order
for relief.” Such a reliance was understandable in light of the
fact that the court in In re Pier appears to be the only court to
have considered this issue. However, because we are not bound by
In re Pier and because we conclude that the meaning of “granting
of relief” depends in large part on its placement in the statute,
see Brown, 513 U.S. at 118, we conclude that the “granting of
relief” under § 707(b) means a Chapter 7 discharge under § 727.

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added). In other words, § 707(b) expressly instructs the court

not to consider whether the debtor had made or currently makes

charitable contributions. We agree with the district court that

the absence of limiting language like this in the earlier part of

subsection (b) indicates that Congress did not intend to place

any other limitations on the court in ruling on such motions.

However, we would take the district court’s statutory analysis

one step further and point out that the phrase “or continues to

make” suggests that the court is entitled to focus on subsequent

developments in the debtor’s financial condition, except to what

charities the debtor is presently contributing.

Although some of the statutory language in § 707(b)

indicates that a court can consider post-petition events

occurring prior to the discharge, we must still give effect to

the words “substantial abuse” in § 707(b). Neither the statute

nor any other provision in the Bankruptcy Code defines

“substantial abuse” or indicates how it should be determined.

While none of our sister circuits has considered whether a court

should take into account post-petition events in making a

substantial abuse determination, many of them have addressed how

substantial abuse should be determined under § 707(b). See

Stewart v. U.S. Trustee (In re Stewart), 175 F.3d 796, 809 (10th

Cir. 1999); Kornfield v. Schwartz (In re Kornfield), 164 F.3d

778, 784 (2d Cir. 1999); In re Lamanna, 153 F.3d at 2; Green v.

Staples (In re Green), 934 F.2d 568, 572-73 (4th Cir. 1991); In

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re Krohn, 886 F.2d 123, 126 (6th Cir. 1989); In re Walton, 866

F.2d 981, 983-84 (8th Cir. 1989); Zolg v. Kelly (In re Kelly),

841 F.2d 908, 914-15 (9th Cir. 1988). These courts agree that a

debtor’s ability to repay his debts out of future income is a

primary factor to be considered in determining whether to dismiss

for substantial abuse.7 A consideration of the debtor’s future

earnings also follows the analysis favored by most bankruptcy

commentators. See, e.g., 6 COLLIER ON BANKRUPTCY ¶ 707.04[4] (15th

ed. rev. 2006) (“The primary factor that may indicate a

7
In fact, some circuits have held that the debtor’s
ability to pay alone can establish substantial abuse. See In re
Walton, 866 F.2d at 983-84 (holding that the ability to fund a
Chapter 13 plan can be a sufficient reason to dismiss a Chapter 7
case under § 707(b)); In re Kelly, 841 F.2d at 915 (“[A] finding
that a debtor is able to pay his debts, standing alone, supports
a conclusion of substantial abuse.”).
Other circuits apply a totality of the circumstances
approach, recognizing that the debtor’s ability to repay his
debts is a primary factor, see In re Stewart, 175 F.3d at 809, In
re Kornfield, 164 F.3d at 784, and In re Green, 934 F.2d at 572-
73, while others apply the same standard, but conclude that the
debtor’s ability to repay debts out of future earnings may be
enough by itself. See In re Lamanna, 153 F.3d at 2 (“[W]e do not
require a court to look beyond the debtor’s ability to repay if
that factor warrants the result.”); In re Krohn, 886 F.2d at 126
(same).
Lower courts in the Fifth Circuit, including the
bankruptcy court and the district court in this case, have
adopted the totality of the circumstances approach, with emphasis
on the debtor’s ability to repay debts under a Chapter 13 plan,
as set forth in In re Lamanna and In re Krohn. See, e.g., In re
Hill, 328 B.R. 490, 494-96 (Bankr. S.D. Tex. 2005); In re Rubio,
249 B.R. 689, 695-96 (Bankr. N.D. Tex. 2000); In re Faulhaber,
243 B.R. 281, 284 (Bankr. E.D. Tex. 1999); In re Lampkin, 221
B.R. 390, 392 (Bankr. W.D. Tex. 1998). The Cortezes do not
dispute that this standard applies or ask us to adopt a different
test for determining substantial abuse. Accordingly, for
purposes of this appeal, we will assume, without deciding, that
this is the correct standard.
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substantial abuse is the ability of the debtor to repay the debts

out of future disposable income.”) (citing S. REP. NO. 98-65, at

54 (1983)).

In determining a debtor’s ability to repay his debts out of

future earnings, we consider whether the debtor has sufficient

disposable income to fund a Chapter 13 plan. See In re Koch, 109

F.3d at 1288 (“[A]bility to pay for § 707(b) purposes is measured

by evaluating Debtors’ financial condition in a hypothetical

Chapter 13 proceeding.”). In other words, we must look to

Chapter 13 to see what the creditors would receive had the

debtors filed a Chapter 13 plan. See In re Walton, 866 F.2d at

985 (holding that the debtor’s ability to pay, out of future

income, 68% of unsecured debt within three years supported the

determination of substantial abuse). Such an abuse determination

is necessarily forward looking because it asks whether creditors

would receive more from the debtors’ future earnings in a Chapter

13 than they would receive in a Chapter 7.

“Chapter 13 affords ‘an individual with regular income’ the

option of preserving [his] ‘pre-petition assets through a three-

to five-year plan funded primarily’ with that individual’s

regular income.” Taylor v. United States (In re Taylor), 212

F.3d 395, 397 (8th Cir. 2000) (quoting 11 U.S.C. § 109(e), and In

re Koch, 109 F.3d at 1288). “[P]ost-petition earnings of the

debtor constitute the principal means of funding the plan.” 8

COLLIER ON BANKRUPTCY ¶ 1306.02[3] (15th ed. rev. 2006); see also 11

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U.S.C. § 1306(a)(2). While it might seem, as one bankruptcy

scholar put it,8 that “[s]ubstantial clairvoyance” is necessary

to determine a Chapter 7 debtor’s post-petition earnings and

ability to fund a Chapter 13 plan, the task is made easier by

§ 521(1), which was added at the same time Congress amended the

Bankruptcy Code to include § 707(b). See Fonder v. United

States, 974 F.2d 996, 999 (8th Cir. 1992) (“When Congress enacted

§ 707(b) in 1984, it also added the requirement that debtors file

an Income/Expense Schedule ‘[t]o facilitate addressing the

question of abuse in Chapter 7 cases.’”) (quoting 3 NORTON

BANKRUPTCY LAW & PRACTICE § 69.01 n.12 (1991)); see also 6 COLLIER ON

BANKRUPTCY ¶ 707.04[2] (15th ed. rev. 2006) (stating that

“[s]ection 707(b) must be considered in conjunction with section

521”). Section 521(1) requires a debtor to file “a schedule of

current income [i.e., Schedule I] and current expenditures [i.e.,

Schedule J].” In addition to requiring debtors to disclose their

current income, Schedule I instructs debtors to “[d]escribe any

increase or decrease of more than 10% in any of the above

categories anticipated to occur within the year following the

filing of this document.” The same schedules are filed to

commence both Chapter 7 and Chapter 13 proceedings. See Fonder,

974 F.2d at 999. If sufficient income to fund a Chapter 13 plan

8
See Jeffrey W. Morris, Substantive Consumer Bankruptcy
Reform in the Bankruptcy Amendments Act of 1984, 27 WM. & MARY L.
REV. 91, 99-100 (1985).
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is anticipated, a complete discharge of the debtor’s obligations

would constitute a substantial abuse of Chapter 7.

When, as here, the debtors’ future earnings are not known at

the time of filing, we should look to the requirements imposed on

debtors under Chapter 13. In a Chapter 13 proceeding, debtors

are obligated to amend their schedules to include subsequent

income, even if that income is not known or realized at the time

of filing. Section 521(3) requires the debtor to cooperate with

the trustee, and § 1302(b) imposes duties on the trustee,

including the duty to investigate the debtor’s financial affairs

under § 704(4). Based upon the trustee’s investigation of the

debtor’s financial affairs, the trustee makes a decision to

support or oppose confirmation of the Chapter 13 plan. If the

trustee objects to the plan confirmation, the court may not

approve the plan unless it “provides that all of the debtor’s

projected disposable income to be received [during the plan] will

be applied to make payments under the plan.” 11 U.S.C.

§ 1325(b)(1)(B) (emphasis added).9 Even if the plan, as

initially proposed, is confirmed, § 1329 allows the trustee to

seek a subsequent modification of the plan based on an increase

in the debtor’s income, so that more money is paid to the

creditors. See id. § 1329(a)(1); see also Arnold v. Weast (In re

9
Section 1325(b)(2)(A) defines disposable income for
purposes of Chapter 13 as income received by the debtor that is
not reasonably necessary for support of the debtor or the
debtor’s dependents.
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Arnold), 869 F.2d 240, 241 (4th Cir. 1989) (“[I]t is well-settled

that a substantial change in the debtor’s financial condition

after confirmation may warrant a change in the level of

payments.”). Put another way, permitting a debtor to retain

post-petition improvements in earnings, without committing the

increase in income that is not reasonably necessary for support

of the debtor or the debtor’s dependents, would be grounds for

rejection or later modification of a Chapter 13 plan. As a

practical matter, then, the debtors would be obligated to amend

their schedules to disclose any post-petition income under

Chapter 13. Therefore, it would seem to us, drawing on Chapter

13 and the schedules themselves, as we are required to do in a

substantial abuse determination under § 707(b), that post-

petition improvements in earnings can be taken into account and

should be taken into account up until the point at which the

discharge is entered.10

The Cortezes insist that if we include post-petition income

as a consideration for substantial abuse under § 707(b), this

court will infringe upon § 541(a)(6), which states that post-

10
In so holding, we are mindful of the Cortezes’ argument
that the date of filing is the critical date for determining
rights (e.g., the automatic stay, entitlement to exemptions) in a
Chapter 7 proceeding. While this may be true, we do not find
this argument persuasive because it fails to take into account
other sections of the Code that require analysis of post-petition
circumstances. See, e.g., 11 U.S.C. § 727(a) (requiring the
court to deny a Chapter 7 discharge based on certain post-
petition circumstances, such as destroying books and records,
making a false oath, or failing to explain the loss of assets).
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petition earnings are not property of the estate in a Chapter 7

proceeding. Cf. 11 U.S.C. § 1306(a)(2). The Cortezes argue that

their case is akin to Burgess v. Sikes (In re Burgess), 438 F.3d

493 (5th Cir. 2006), in which this court, sitting en banc, held

that a post-petition disaster-relief payment was not property of

the estate within the meaning of § 541(a)(6).

This case is easily distinguished from the one we faced in

In re Burgess. While we do not dispute the Cortezes’ contention

that debtors are entitled to exclude their post-petition earnings

from the estate in a Chapter 7 proceeding, the ability to exclude

post-petition income for purposes of a Chapter 7 estate is an

independent issue from whether debtors have the ability to repay

their debts. The latter issue is the pertinent inquiry for

determining substantial abuse under § 707(b), and we conclude,

like those circuits considering whether exempt property should be

included for purposes of a substantial abuse determination, that

post-petition improvements in earnings can be considered in

ruling on a motion to dismiss. See In re Taylor, 212 F.3d at 397

(stating “that the relevant inquiry is not whether the payments

are exempt from creditors in a Chapter 7 proceeding but whether

the challenged payments would constitute income in a hypothetical

proceeding under Chapter 13 of the United States Bankruptcy

Code”); In re Kornfield, 164 F.3d at 784 (“A totality of the

circumstances inquiry is equitable in nature and existence of an

asset, even if exempt from creditors, is relevant to a debtor’s

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ability to pay his or her debts [under § 707(b)].”).

Accordingly, although post-petition earnings are not property of

the estate under § 541(a)(6), the court can and should take them

into account for purposes of determining substantial abuse under

§ 707(b).11

Given that post-petition events should be considered up

until the date of discharge,12 we remand this case to the

district court with instructions to return it to the bankruptcy

court. See In re Koch, 109 F.3d at 1290 (“The final decision on

a § 707(b) motion to dismiss should be made initially by the

bankruptcy court.”). On remand, the bankruptcy court should

consider any post-petition events affecting the Cortezes’

financial situation, including any post-petition improvements in

income or, if still applicable, Mr. Cortez’s unemployment.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court reversing the judgment of the bankruptcy court,

and REMAND to the district court, with instructions to remand to

the bankruptcy court for further proceedings consistent with this

11
In so holding, we do not opine on the effects of the
amendments to § 707(b) under the 2005 Act.
12
We are mindful that, pursuant to FED. R. BANKR. P.
1017(e), the trustee is required to file a motion to dismiss
under § 707(b) within sixty days of the § 341 meeting of the
creditors, unless, prior to the expiration of that period, the
trustee requests and the court finds good cause to extend that
deadline.
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opinion. Costs shall be borne by appellants.

AFFIRMED and REMANDED.

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