Robert B. Van Arsdale, AUST (Va. Bar No. 17483) 

Shannon Pecoraro, Esq. (Va. Bar No. 46864) 

Office of the United States Trustee 

701 East Broad Street - Suite 4304 

Richmond, VA 23219 

Telephone (804) 771-2310 

Facsimile (804) 771-2330 

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

In re 

D’Jalmar Armond Perry 

1449 Whitesand Drive 

Richmond, VA 23225 

SSN/ITIN: xxx-xx-3530 

 Debtors(s). 

 

Case No.15-35275-KRH 

Chapter 7 

NOTICE OF UNITED STATES TRUSTEE’S MOTION TO DISMISS

CASE FOR PRESUMPTION OF ABUSE PURSUANT TO 

11 U.S.C. § 707(b)(2), OR IN THE ALTERNATIVE, FOR ABUSE 

PURSUANT TO 11 U.S.C. § 707(b)(3) AND HEARING THEREON 

 

PLEASE TAKE NOTICE that the United States Trustee has filed with the Court a Motion Of The 

United States Trustee To Dismiss Case For Presumption Of Abuse Pursuant To 11 U.S.C. § 707(b)(2), Or 

In The Alternative, For Abuse Pursuant To 11 U.S.C. § 707(b)(3) (the “Motion”) in the above-captioned 

case. A copy of the Motion is being served on you simultaneously herewith. 

If you do not want the Court to grant the relief sought in the Motion or if you want the Court to 

consider your views on the Motion, then on or before seven (7) days before the scheduled hearing date on 

the Motion, you or your attorney must: 

( X ) File with the Court, at the address below, a written response with supporting 

memorandum pursuant to Local Bankruptcy Rule 9013-1(H). You must mail or 

otherwise file it early enough so the Court will receive it on or before the date stated 

above. 

Clerk of Court 

United States Bankruptcy Court 

701 East Broad Street, Suite 4000 

Richmond, Virginia 23219 

You must also serve a copy on: 

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Shannon Pecoraro 

Trial Attorney 

Office of the United States Trustee 

701 East Broad Street, Suite 4304 

Richmond, VA 23219 

( X ) Attend a hearing on the Motion which has been scheduled for March 23, 2016 at 

12:00 p.m. before the Honorable Kevin R. Huennekens at the United States Bankruptcy 

Court, 701 East Broad Street, Suite 5000, Richmond, VA 23219. 

If you or your attorney do not take these steps, the Court may decide that you do not oppose the 

relief sought in the Motion and may enter an Order granting that requested relief without further notice or 

hearing. 

Date: January 8, 2016 JUDY A. ROBBINS 

United States Trustee 

Region Four 

/s/ Shannon Pecoraro 

Shannon Pecoraro, Esq. (Va. Bar No. 46864) 

Office of the United States Trustee 

701 East Broad Street, Suite 4304 

Richmond, VA 23219 

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CERTIFICATE OF SERVICE 

I, the undersigned do hereby certify that on January 8, 2016, I caused to be mailed a true and 

correct copy of the above and foregoing, with postage fully prepaid herein, via U.S. Mail, to the following 

parties: 

D’Jalmar Armond Perry 

1449 Whitesand Drive 

Richmond, VA 23225 

The Court has electronically mailed the document to the following persons or all other necessary 

parties, including, the Debtor’s attorney and the Chapter 7 Trustee. 

/s/ Shannon Pecoraro 

Robert B. Van Arsdale, Esq., AUST (Va. Bar No. 17483) 

Shannon Pecoraro, Esq. (Va. Bar No. 46864) 

Office of the United States Trustee 

701 East Broad Street, Suite 4304 

Richmond, VA 23219 

Telephone (804) 771-2310 

Facsimile (704) 771-2330

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Robert B. Van Arsdale, AUST (Va. Bar No. 17483) 

Shannon Pecoraro, Esq. (Va. Bar No. 46864) 

Office of the United States Trustee 

701 East Broad Street - Suite 4304 

Richmond, VA 23219 

Telephone (804) 771-2310 

Facsimile (804) 771-2330

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

In re 

D’Jalmar Armond Perry 

1449 Whitesand Drive 

Richmond, VA 23225 

SSN/ITIN: xxx-xx-3530, 

 Debtors(s). 

 

Case No.15-35275-KRH 

Chapter 7 

MOTION OF THE UNITED STATES TRUSTEE TO DISMISS 

CASE FOR PRESUMPTION OF ABUSE PURSUANT TO 11 U.S.C. § 707(b)(2), 

OR IN THE ALTERNATIVE, FOR ABUSE PURSUANT TO 11 U.S.C. § 707(b)(3) 

 

COMES NOW JUDY A. ROBBINS, the United States Trustee for Region Four (the “U.S. 

Trustee”), through the undersigned counsel, who respectfully moves this Court for entry of an Order 

dismissing the above captioned Debtor’s (the “Debtor”) case for presumption of abuse pursuant to 11 

U.S.C. § 707(b)(2), 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”), or, in the alternative, for abuse 

pursuant to Bankruptcy Code § 707(b)(3), and represents as follows: 

JURISDICTION 

1. This Court has jurisdiction of this matter under 28 U.S.C. §§ 1334, 151, and 157(a) and 

(b)(1). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (B). Venue is proper before this 

Court pursuant to 28 U.S.C. §§ 1408 and 1409. 

2. This Motion is filed pursuant to Bankruptcy Code §§ 707(b)(2) and 707(b)(3). 

TIMELINESS OF MOTION 

3. Bankruptcy Code § 704(b)(1)(a) requires the U.S. Trustee to review all materials filed by 

debtors, and not later than ten (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 § 707(b). 

4. The initial Chapter 7 meeting of creditors (the “341 Meeting”) was held on December 1, 

2015. 

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5. On December 11, 2015, pursuant to the requirements of Bankruptcy Code § 704(b)(1)(a), 

the U.S. Trustee filed a statement of presumed abuse (the “10 Day Statement”). 

6. The deadline under Bankruptcy Code § 707(b)(2) is January 11, 2016, and the deadline 

under Bankruptcy Code § 707(b)(3) is January 19, 2016. 

7. Therefore, this Motion is timely filed. 

FACTUAL BACKGROUND 

8. On or about October 13, 2015 (the “Petition Date”), the Debtor filed a voluntary petition for 

relief under Chapter 7 of the Bankruptcy Code. 

9. Harry Shaia, Jr., (the “Chapter 7 Trustee”) was appointed trustee and continues to serve as 

Chapter 7 trustee in this bankruptcy case 

10. On Schedule F - Creditors Holding Unsecured Nonpriority Claims, the Debtor lists creditors 

with claims totaling $32,878.38. 

11. The debts listed on the Debtor’s schedules D, E and F appear to be primarily consumer 

obligations. 

12. On the Official Form 22A-1 and Official Form 22A-2 (collectively, the “Means Test”), the 

Debtor reports monthly gross household income of $4,837.53, annualized gross household income 

totaling $58,050.36, and a household size of one (1) person. See Means Test, lines 12a, 12b, and 13. 

13. The applicable median family income for a family consisting of one (1) person in Virginia 

on the date of the Debtor’s bankruptcy petition was $53,287.00. 

14. The Debtor’s household income as reported on the Means Test substantially exceeds the 

applicable state median family income figure. 

15. Because the Debtor’s reported household income exceeded the applicable state median 

family income, the Debtor was required to complete the remainder of the Means Test. 

16. On the Means Test, the Debtor reports “monthly disposable income under § 707(b)(2)” of 

($708.03) and “60-month disposable income under § 707(b)(2)” of ($42,481.80). See Means Test, lines 

39c and 39d. 

17. On Schedule I, the Debtor reports gross income of $5,670.60 and net income of $4,221.19. 

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18. On Schedule J, The Debtor reports expenses of $3,474.24 and monthly net income of 

$746.95. 

19. A representative of the U.S. Trustee’s office attended the § 341 Meeting and questioned the 

Debtor regarding the representations in his schedules. 

20. The U.S. Trustee has reviewed the limited information provided to the Chapter 7 Trustee in 

this case, including but not limited to, pay advices and 2014 tax return transcript. 

21. On December 1, 2015, the U.S. Trustee sent a follow up email to counsel requesting certain 

documentation from the Debtor and asking for schedules to be amended. 

22. Since the initial request, the U.S. Trustee has followed up with counsel on various occasions. 

23. To date, the U.S. Trustee has not received any documentation from the Debtor. 

24. Based on the limited information in her possession, the U.S. Trustee prepared an amended 

Means Test and determined that the Debtor has monthly disposable income in an amount greater than 

$207.92, and therefore, the presumption of abuse arises. 

LAW AND ANALYSIS UNDER 11 U.S.C. § 707(b)(2) 

25. In enacting the Bankruptcy Abuse and Consumer Protection Act of 2005 (“BAPCPA”), 

Congress made significant changes to the Bankruptcy Code to facilitate the prevention of abuse of the 

bankruptcy system. 

26. Cases such as the instant case demonstrate the type of abuse Bankruptcy Code § 707(b) was 

intended to prevent. 

27. Bankruptcy Code § 707(b)(1) provides that the Court may dismiss a case filed by an 

individual whose debts are primarily consumer debts, if it finds that granting relief would be an abuse of 

the provisions of Chapter 7. 

28. Section 707(b)(2)(A)(i) provides, in pertinent part, 

. . . the court shall presume abuse exists if the debtor’s current monthly 

income reduced by [certain deductions] and multiplied by 60 is not less 

than the lesser of – 

(I) 25 percent of the debtor’s nonpriority unsecured claims 

in the case or $7,475.00, whichever is greater; or 

(II) $12,475.00. 

11 U.S.C. § 707(b)(2)(A)(i) (2015). 

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29. Under this provision, the Court must presume that a debtor’s chapter 7 filing is abusive if, 

inter alia, the debtor has monthly disposable income of more than $207.92 per month, or $12,475.00 over 

sixty (60) months, to fund a plan. 

30. If a presumption of abuse arises, a debtor may rebut it only by demonstrating special 

circumstances to the extent such special circumstances justify additional expenses or adjustments of 

current monthly income for which there is no reasonable alternative. See 11 U.S.C. § 707(b)(2)(B)(i) 

(2015). 

31. A debtor must provide a detailed explanation of the special circumstances, itemize and 

document each additional expense or adjustment of income, and attest under oath to the accuracy of the 

information provided. See 11 U.S.C. § 707(b)(2)(B)(ii) and (iii) (2015). 

32. In the event a debtor establishes special circumstances of the kind described in Bankruptcy 

Code § 707(b)(2)(B)(i), the debtor will rebut the presumption of abuse only if he or she can demonstrate 

that the additional expenses or adjustments to income cause the product of the debtor’s reduced monthly 

income, when multiplied by sixty (60), to be the lesser of (1) 25% of the debtor’s unsecured debts or 

$7,475.00, whichever is greater or (b) $12,475.00. See 11 U.S.C. § 707(b)(2)(B)(iv) (2015). 

33. It appears that the Debtor has monthly disposable income exceeding $207.92 and that the 

presumption of abuse arises under the corrected Means Tests prepared by the U.S. Trustee. 

34. Accordingly, the U.S. Trustee submits that the relief requested herein is justified and in the 

best interest of the Debtor’s creditors and should be granted. 

LAW AND ANALYSIS UNDER 11 U.S.C. § 707(b)(3) 

35. In the event the Court does not agree that the Debtor’s case should be dismissed for 

presumption of abuse pursuant to Bankruptcy Code § 707(b)(2), the U.S. Trustee has also investigated the 

Debtor’s case for abuse pursuant to Bankruptcy Code § 707(b)(3) and asserts that dismissal under § 

707(b)(3) is also appropriate. 

36. The standard for presuming abuse under Bankruptcy Code § 707(b)(2) is based on a 

statutorily mandated calculation (as detailed above) while the standard for actual abuse under Bankruptcy 

Code § 707(b)(3) is based upon consideration of evidence of a debtor’s bad faith or totality of the 

circumstances of his or her financial situation. 

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37. Whereas the court may look only to the results of the Means Test Form for dismissal 

predicated on the presumption of abuse arising under Bankruptcy Code § 707(b)(2), the Court must 

exercise its discretion to dismiss a case under Bankruptcy Code § 707(b)(3). 

38. Section 707(b)(3) of the Bankruptcy Code provides, in pertinent part, as follows: 

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 in subparagraph (A)(I) does not arise or is rebutted, the court 

shall consider – 

 (A) whether the debtor filed the petition in bad faith; or

 (B) [whether] the totality of the circumstances (including whether 

the debtor seeks to reject a personal services contract and the 

financial need for such rejection as sought by the debtors) of 

the debtor’s financial situation demonstrates abuse. 

11 U.S.C. § 707(b) (2015) (emphasis added). 

 

39. Bankruptcy Code § 707(b), as amended by BAPCPA, replaces dismissal based upon 

“substantial abuse” under pre-BAPCPA § 707(b) with a mere “abuse” standard. 

40. Under § 707(b)(3) of BAPCPA, dismissal is warranted based upon “abuse” in cases where a 

debtor filed a chapter 7 case in bad faith or the totality of the circumstances indicates the debtor has the 

ability to repay a substantial portion of unsecured debt. 

41. Dismissal for “abuse” under § 707(b)(3) is not dependent on the presumption of abuse 

arising under § 707(b)(2). Nothing in the Code indicates that the court’s traditionally discretionary 

analysis has been replaced by the means test. 

42. Using the standard articulated in Bankruptcy Code § 707(b)(3), post-BAPCPA, the Debtor’s 

case would be an abuse. 

43. Additionally, though post-BAPCPA Bankruptcy Code § 707(b)(3) seems to have lightened 

the standard for finding abuse, the Debtor’s case would also fail if this Court were to apply the test set 

forth by the Fourth Circuit in the pre-BAPCPA case of In re Greene, 934 F.2d 568 (4th Cir. 1991) 

(adopted a "totality of circumstances" test for determining whether substantial abuse exists in a given 

Chapter 7 case). 

44. Under the Greene test, the following factors are to be analyzed: 

(a) Whether the debtor has the ability to repay; 

(b) Whether the bankruptcy petition was filed because of sudden illness, 

calamity, disability, or unemployment; 

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(c) Whether the debtor incurred cash advances and made consumer 

purchases far in excess of his ability to pay; 

(d) Whether the debtor's proposed family budget is excessive or 

unreasonable; 

(e) Whether the debtor's schedules and statement of current income and 

expenses reasonably and accurately reflect the true financial condition; 

and 

(f) Whether the petition was filed in good faith. 

Greene, 934 F.2d at 572 (citing In re Strong, 84 B.R. 541, 545 (Bankr. N.D. Ind. 1988)); In re Peluso, 72 

B.R. 732, 736 (Bankr. N.D.N.Y. 1987); In re Grant, 51 B.R. 385, 392 (Bankr. N.D. Ohio 1985) (citing 

substantially similar factors drawn from cases cited). 

45. A consumer debtor's ability to repay a significant portion of his or her unsecured debt out of 

future disposable income is a primary factor and strong evidence of abuse sufficient to rebut that 

presumption in favor of the debtor. The burden then shifts to the Debtor to demonstrate entitlement to 

Chapter 7 relief. In re Norris, 225 B.R. 329 (Bank. E.D. Va. 1998). 

46. The Debtor has not demonstrated entitlement to relief under Chapter 7 of the Bankruptcy 

Code. 

47. On Schedule I, the Debtor reports monthly gross household income of $5,670.60 and 

monthly net income of $4,221.19. 

48. On Schedule J, the Debtor reports monthly expenses of $3,474.24 and monthly disposable 

income of $746.95. 

49. In comparing the reported numbers on Schedules I and J to the Means Test, it would appear 

that Schedules I and J are inaccurate in that the Debtor’s income appears to be understated. 

50. On several occasions, the U.S. Trustee has requested that the Debtor file amended schedules. 

 To date, no amendments have been filed. 

51. Based on the U.S. Trustee’s analysis, it appears the Debtor could afford a substantial 

Chapter 13 plan payment. 

52. However, to date, the U.S. Trustee has not received any of the documents requested. 

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53. The totality of the circumstances indicates that the Debtors’ financial condition does not 

warrant a Chapter 7 discharge: (a) the Debtor has the ability to repay a substantial portion of his 

unsecured debt through a Chapter 13 plan; (b) the Debtor did not file the bankruptcy petition because of 

sudden illness, calamity, disability, or unemployment; (c) the petition and schedules do not accurately 

reflect the Debtor’s true financial condition; and (d) it is questionable whether the Chapter 7 case was 

filed in good faith. 

54. Accordingly, the U.S. Trustee submits that the relief requested herein is justified and in the 

best interest of the Debtor’s creditors and should be granted. 

NOTICE 

55. Notice of this Motion has been given to: (a) the Debtor, (b) the Debtor’s counsel, and (c) 

the Chapter 7 Trustee. In light of the relief requested herein, the U.S. Trustee submits that no other or 

further notice is required. 

 RELIEF REQUESTED

56. The U.S. Trustee prepared a modified Means Test Form and believes that the presumption of 

abuse arises in this case. However, to date, despite request, the U.S. Trustee has not been provided with 

the documents or amendments that have been requested on various occasions since December 1, 2015. 

57. The Debtor has not presented special circumstances to rebut the presumption of abuse. 

58. Accordingly, this Court should dismiss the case under Bankruptcy Code § 707(b)(1) because 

there is a presumption of abuse under Bankruptcy Code § 707(b)(2). 

59. In the alternative, this Court should dismiss the Debtor’s case pursuant to Bankruptcy Code 

§ 707(b)(3) based on the totality of the circumstances. 

60. Based on the foregoing, there is just cause to dismiss the Debtor’s case pursuant to 

Bankruptcy Code § 707(b)(2) or Bankruptcy Code § 707(b)(3). 

61. Given that the U.S. Trustee has not received any of the documentation requested and none of 

the amendments to the Debtor’s schedules have been filed, the U.S. Trustee reserves the right to amend 

this Motion or to file a supplement to same. 

 WHEREFORE, the U.S. Trustee respectfully requests that: (a) the Debtor’s discharge be deferred 

pending disposition of this motion; (b) the case be dismissed pursuant to Bankruptcy Code § 707(b)(2) or, 

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in the alternative, pursuant to Bankruptcy Code § 707(b)(3); and (c) the Court grant such other and further 

relief as is just. 

Respectfully requested 

JUDY A. ROBBINS 

United States Trustee 

Region 4 

 By /s/ Shannon Pecoraro 

Trial Attorney 

CERTIFICATE OF SERVICE 

I, the undersigned do hereby certify that on January 8, 2016, I caused to be mailed a true and 

correct copy of the above and foregoing, with postage fully prepaid herein, via U.S. Mail, to the following 

parties: 

D’Jalmar Armond Perry 

1449 Whitesand Drive 

Richmond, VA 23225 

The Court has electronically mailed the document to the following persons and to all other 

necessary parties, including, the Debtor’s attorney and the Chapter 7 Trustee. 

/s/ Shannon Pecoraro 

Robert B. Van Arsdale, Esq., AUST (Va. Bar No. 17483) 

Shannon Pecoraro, Esq. (Va. Bar No. 46864) 

Office of the United States Trustee 

701 East Broad Street, Suite 4304 

Richmond, VA 23219 

Telephone (804) 771-2310 

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