               United States Bankruptcy Appellate Panel
                           FOR THE EIGHTH CIRCUIT



                                     No. 10-6046


In re:                                    *
                                          *
Damian Gerald Chapman;                    *
Melissa Ann Chapman,                      *
                                          *
         Debtors.                         *
                                          *
Habbo G. Fokkena, U.S. Trustee,           *        Appeal from the
                                          *        United States
         U.S. Trustee - Appellant,        *        Bankruptcy Court for the
                                          *        District of Minnesota
               v.                         *
                                          *
Damian Gerald Chapman;                    *
Melissa Ann Chapman,                      *
                                          *
         Debtors - Appellees.             *




                                         -1-
                                     No. 10-6047



In re:                                     *
                                           *
Maria Christina Cruse,                     *
                                           *
         Debtor.                           *
                                           *
Habbo G. Fokkena, U.S. Trustee,            *        Appeal from the
                                           *        United States
         U.S. Trustee - Appellant,         *        Bankruptcy Court for the
                                           *        Southern District of Iowa
               v.                          *
                                           *
Maria Christina Cruse;                     *
                                           *
         Debtor - Appellee.                *



                              Submitted: February 1, 2011
                                Filed: March 11, 2011



Before SCHERMER, SALADINO and NAIL, Bankruptcy Judges

SCHERMER, Bankruptcy Judge

      The United States Trustee (the “U.S. Trustee”) appeals from orders of the
United States Bankruptcy Court for the District of Minnesota and the United States
Bankruptcy Court for the Southern District of Iowa, denying the U.S. Trustee’s
motions to dismiss the Chapter 7 bankruptcy cases of Damian Gerald Chapman and

                                          -2-
Melissa Ann Chapman (the “Chapmans”) and Maria Christina Cruse (Ms. Cruse and
together with the Chapmans, the “Debtors”) pursuant to § 707(b) of Title 11 of the
United States Code (the “Bankruptcy Code”). We have jurisdiction over these appeals
from the final orders of the bankruptcy courts. See 28 U.S.C. § 158(b). For the
reasons set forth below, we reverse and remand these cases to the bankruptcy courts
for determinations of dismissal under §§ 707(b)(2) and (3).

                                        ISSUE
      The issue on appeal is whether 11 U.S.C. § 707(b)(1) applies in these cases that
have been converted from Chapter 13 to Chapter 7 of the Bankruptcy Code. We also
consider the threshold issue of whether the bankruptcy courts’ orders denying the U.S.
Trustee’s motions to dismiss under 11 U.S.C. § 707(b) are final orders for the
purposes of these appeals. We conclude that: (1) the orders denying the U.S.
Trustee’s 11 U.S.C. § 707(b) motions to dismiss were final orders; and (2) in light of
the Eighth Circuit’s decision in Resendez v. Lindquist, 691 F.2d 397 (8th Cir. 1982),
11 U.S.C. § 707(b)(1) must be applied in these cases converted from Chapter 13 to
Chapter 7.

                                 BACKGROUND
      The relevant facts are not in dispute in either of these consolidated appeals.

Chapman

       The Chapmans filed a petition for relief under Chapter 13 of the Bankruptcy
Code. When creditors obtained relief from the automatic stay several months after
confirmation of the Chapmans’ Chapter 13 plan, the Chapmans converted their
Chapter 13 case to a case under Chapter 7. The Chapmans had not contested the
creditors’ requests for relief from the automatic stay. They stated that their inability
to pay was due to a reduction in Mrs. Chapman’s overtime income and unanticipated
but necessary changes in their personal living expenses. The U.S. Trustee filed a

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motion to dismiss the Chapmans’ bankruptcy case under 11 U.S.C. § 707(b) for abuse,
relying on both §§ 707(b)(2) and (3). The bankruptcy court for the District of
Minnesota denied the U.S. Trustee’s motion to dismiss on the basis that § 707(b)(1)
did not apply to a case that was commenced by the filing of a petition under Chapter
13 and converted to a case under Chapter 7 post-petition.

Cruse

       Maria Christina Cruse filed her petition for relief under Chapter 13 of the
Bankruptcy Code. Less than a year after confirmation of her Chapter 13 plan and due
to complications from surgery, Ms. Cruse quit working and began to receive short-
term disability benefits. When the Chapter 13 trustee moved to dismiss Ms. Cruse’s
case because of her failure to make plan payments, Ms. Cruse converted her Chapter
13 case to a case under Chapter 7. After filing her Chapter 13 petition but before
converting her case to one under Chapter 7, Ms. Cruse married a surgeon who earned
a high income. The U.S. Trustee moved to dismiss Ms. Cruse’s case under § 707(b)
for abuse, citing grounds under §§ 707(b)(2) and (3). Like the court in Minnesota, the
Iowa bankruptcy court denied the U.S. Trustee’s motion to dismiss on the basis that
§ 707(b)(1) did not apply to a case that was commenced by the filing of a petition
under Chapter 13 and converted to a case under Chapter 7 post-petition.

                           STANDARD OF REVIEW
      We review findings of fact for clear error and conclusions of law de novo.
Fokkena v. Draisey (In re Draisey), 395 B.R. 79, 80 (B.A.P. 8th Cir. 2008)(citation
omitted). Issues of statutory construction are reviewed de novo. Id. (citations
omitted).




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                                       DISCUSSION

Jurisdiction

       As a threshold matter, we consider the Debtors’ argument that we lack
jurisdiction over these appeals because the bankruptcy courts’ orders denying motions
to dismiss under § 707(b)(1) are not final orders. In Stuart v. Koch (In re Koch), 109
F.3d 1285, 1287-88 (8th Cir. 1997), the Eighth Circuit held that orders denying
dismissal under § 707(b) are appealable. The Debtors ask us to disregard or overrule
the Koch court’s conclusion in favor of what they deem to be a better reasoned
approach. We decline to do so because we are without authority to stray from or to
overrule the clearly applicable precedent established by the Eighth Circuit.

Applicability of § 707(b)(1) In Converted Cases

         As a part of the Bankruptcy Abuse Prevention and Consumer Protection Act
of 2005 (“BAPCPA”), Congress amended the methods by which abusive bankruptcy
filings are determined. Section 707(b)(1) sets forth the general rule that the court may
dismiss or convert (with the debtor’s consent) certain cases if it determines that the
granting of relief would be abusive.

         The court’s determination of abuse may be made under either of the standards
set forth under §§ 707(b)(2) and (3). Under § 707(b)(2), a presumption of abuse may
arise “if the debtor’s current monthly income reduced by a certain formula contained
in § 707(b)(2)(A) is greater than an amount specified in that statutory section.”
Draisey, 395 B.R. at 81. “The presumption of abuse may only be rebutted by
demonstrating special circumstances . . . .” 11 U.S.C. § 707(b)(2)(B)(i). This
calculation called for in § 707(b)(2) is commonly referred to as the “means test.”
Under § 707(b)(3), when considering whether an abuse exists, the court “shall
consider - (A) whether the debtor filed the petition in bad faith; or (B) the totality of
the circumstances . . . of the debtor’s financial situation demonstrates abuse.”
Sections 707(b)(2) and (3) each begin with the phrase “[i]n considering under
                                           -5-
paragraph (1) whether the granting of relief would be an abuse of the provisions of
this chapter.” Accordingly, §§ 707(b)(2) and (3) cannot be utilized unless § 707(b)(1)
is applicable. Lastly, a section of the Bankruptcy Code that was not amended by
BAPCPA, § 707(a), provides that a case may be dismissed “for cause.”

      This appeal concerns whether § 707(b)(1) applies in cases converted from
Chapter 13 to Chapter 7. To make this determination, we review the language in §
707(b)(1) as it was written by Congress. Section 707(b)(1) provides, in pertinent part,
that:

      the court, . . . may dismiss a case filed by an individual debtor under this
      chapter [Chapter 7] whose debts are primarily consumer debts, or, with
      the debtor’s consent, convert such a case to a case under chapter 11 or 13
      of this title, if it finds that the granting of relief would be an abuse of the
      provisions of this chapter [Chapter 7].

11 U.S.C. § 707(b)(1)(emphasis added).

       The question of whether § 707(b)(1) applies to cases converted from Chapter
13 to Chapter 7 has caused disagreement among the courts. Compare In re Guarin,
No. 09-42294-JBR, 2009 WL 4500476, at *1 (Bankr. D. Mass. Dec. 3, 2009) (§
707(b)(1) does not apply), McDow v. Dudley (In re Dudley), 405 B.R. 790, 801
(Bankr. W.D. Va. 2009) (same), In re Miller, 381 B.R. 736, 741 (Bankr. W.D. Ark.
2008)(same), In re Ryder, No. 07-40192-EDJ, 2008 WL 3845246, at *1-2 (Bankr.
N.D. Cal. Aug. 18, 2008) (same), and In re Fox, 370 B.R. 639, 648 (Bankr. D.N.J.
2007) (same), with Justice v. Advanced Control Solutions, Inc., Civ. No. 07-5231,
2008 WL 4368668, at *4 (W.D. Ark. Sept. 22, 2008) (§ 707(b)(1) applies); In re
Kraft, No. 09-21052, slip op. at *8-9 (Bankr. D. Wyo. Aug. 13, 2010) (same); In re
Willis, 408 B.R. 803, 810 (Bankr. W.D. Mo. 2009)(same); In re Kellett, 379 B.R. 332,
339 (Bankr. D. Or. 2007) (same); In re Kerr, Nos. 06-12302 and 06-12881, 2007 WL
2119291, at *3-4 (Bankr. W.D. Wash. July 18, 2007) (same), and In re Perfetto, 361
B.R. 27, 28 and 32 (Bankr. D.R.I. 2007) (same).

                                            -6-
       Each interpretation of the phrase “filed by an individual debtor under this
chapter” in § 707(b)(1) requires a different type of reasoning. One such interpretation
is that a case must be filed under Chapter 7, not converted to Chapter 7 after it was
previously filed under Chapter 13, before that section and, thus, §§ 707(b)(2) and (3),
apply. Section 707(b)(1) makes no reference to a case converted to Chapter 7. If
Congress had wanted to refer to conversion in § 707(b)(1), it could have done so. See
Fox, 370 B.R. at 643 (stating that “[t]he fact that [§ 707(b)(1)] provides for the
dismissal or conversion to chapter 13 or 11 where the court finds abuse is an
indication that the drafters were contemplating the effect of conversion specifically
in this subsection.”).

       Under a second interpretation, the word “filed” in § 707(b)(1) seems to be used
to identify the type of debtor (“filed by an individual debtor”), rather than as a
limitation of how the case arrived in Chapter 7. Further, limiting the abuse analysis
only to individual debtors who originally “filed under” Chapter 7 would create a
potential loophole for debtors to “abuse” the system by filing and failing under
Chapter 13 in order to avoid the § 707(b) analysis upon conversion. Courts would be
left with using “equitable powers” to curb such abuses.

       In any event, based on the Eighth Circuit’s decision in Resendez v. Lindquist,
691 F.2d 397 (8th Cir. 1982), we are compelled to determine that these cases, that
were filed under Chapter 13 and later converted to Chapter 7, are considered to be
“filed under” Chapter 7 for the purposes of § 707(b)(1). Resendez states that “[i]t is
also established that when there is a conversion, the debtors are deemed to have filed
a Chapter 7 case at the time the Chapter 13 case was filed.” Id. at 399 (emphasis
added).

      In light of the fact that we find Resendez to be controlling on this issue, we do
not need to address the other arguments put forth by the U.S. Trustee.



                                          -7-
                                 CONCLUSION
      Because we feel bound by the language used by the Eighth Circuit in Resendez,
we REVERSE the decisions of the bankruptcy courts and remand the cases to the
bankruptcy courts for determinations of dismissal under §§ 707(b)(2) and (3).




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