The United States Trustee filed a motion to dismiss the case either as presumptively abusive under Section 707(b)(2) or as the granting of a Chapter 7 discharge to the Debtor is abusive when viewed in the totality of the circumstances under Section 707(b)(3).  The Court granted the United States Trustee’s motion, but gave the Debtor an opportunity to convert his case to a case under Chapter 13.

The above-median Debtor listed a negative monthly disposable income on his means test form, asserting that the presumption of abuse under Section 707(b)(2) does not apply.  The Debtor did not list any special circumstances on his means test form.  However, when the Debtor's actual income and expenses were taken into account, a presumption of abuse arises.  The Debtor overstated the additional health care expenses deduction and the health savings account deduction.  Thus, the burden was on the Debtor to rebut the presumption of abuse.  The Debtor failed to prove that any special circumstances exist.  The Court allowed a vehicle operation expense for two vehicles, and allowed an additional deduction for a prescription to treat hypersomnia as an unusual circumstance, however the presumption of abuse still arises and the Debtor did not sufficiently rebut the presumption.