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Click here for the full text of this decision FACTS: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, Carlos was unemployed and Suzanne was employed as a registered nurse, so all of the income listed on Schedule I was attributable to Suzanne. On April 12, 2004, four days after the Cortezes filed for Chapter 7, Carlos was offered a position with Aramark Healthcare Management Services (Aramark) as the human resource director. Carlos accepted the position and began working for Aramark on April 26, 2004. As the human resource director, Carlos 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. Carlos was also eligible to receive a company car. Suzanne reduced her hours so that her net income as of October 1, 2004, was approximately $750 per month. The Cortezes’ net income was $6646 per month, exceeding their expenses by $1325 per month. The Cortezes provided documents to the U.S. trustee showing that Carlos was employed by Aramark and testified to the same at the �341 meeting of the creditors on 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 $1,325 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 Carlos 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 Carlos’ employment with Aramark, in deciding whether to dismiss their case under �707(b). On Nov. 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 �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 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 Carlos’ post-petition employment could not be considered because it was not an event clearly in prospect at the petition date. Given that it could not consider Carlos’ 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. 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, the primary case the bankruptcy court relied on in its 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 decided that such is not the case here, where the issue is whether debtors have the ability to make significant payments to their creditors from future income. On March 4, 2005, while the case was on appeal to the district court, Carlos lost his job at Aramark. The Cortezes contend that the district court was unable to consider Carlos’ 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, Carlos was still unemployed. On April 7, 2005, the Cortezes filed this appeal, arguing that 1. The district court erred in concluding that �707(b) 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 Carlos’ job loss and current unemployment. HOLDING:The court remands this case to the district court with instructions to return it to 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, Carlos’ unemployment. 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 proceeding.” This remand order leaves only ministerial tasks for the bankruptcy court and therefore constitutes a final order under �158(d). The court concludes that it has jurisdiction pursuant to �158(d). This case, one of first impression in this circuit, requires the court to determine whether dismissal for “substantial abuse” in �707(b) includes a consideration of post-petition events, a question of law that is reviewed de novo. The court concludes that the post-petition events should be considered up until the date of discharge. OPINION:King, J.; King, Stewart and Dennis, J.J.

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