This article suggests the contrary - that if a section 707(b) motion properly raises the question, a bankruptcy judge has a duty to consider the actual financial situation of a debtor who is not subject to a means test presumption; that the judge should find abuse where the debtor can repay a sufficient amount of unsecured debt; and that the means test serves to guide, rather than foreclose, such determinations of abuse. Part I discusses the language of BAPCPA that requires this result, focusing on the nature of the means test as a presumption. Part II examines (and finds wanting) the contrary arguments asserted in the Culhane & White article. Part III explores the extent to which statutory provisions associated with the means test may guide judicial determinations of debt-paying ability.
Eugene R. Wedoff,
Judicial Discretion to Find Abuse under Section 707(b)(3),
71 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol71/iss4/9