Before the Court were the United States Trustee’s motion for partial summary judgment on his motion to dismiss the Chapter 7 case for abuse and the Debtor’s opposition thereto.  In resolving the motion for summary judgment, the Court addressed two questions: (1) whether the Debtor’s mortgage loan is a “consumer debt” for purposes of Section 707(b)(1) of the Bankruptcy Code; and (2) whether the Debtor’s debts are “primarily consumer debts” such that an abuse analysis under Section 707(b)(2) and/or Section 707(b)(3) is required.

The Court determined that home mortgages are considered “consumer debts” for purposes of Section 707(b)(1) based on the definition of “consumer debt” in Section 101(8).  The Court found the Code’s definition to be clear and unambiguous and, therefore, agreed with the United States Trustee that there was no need to look to the legislative history of Sections 101(8) and 707(b).  After determining that the mortgage was a consumer debt, the Court concluded the Debtor’s debts were primarily consumer debts.  The court declined to apply a strict, bright-line test which, as urged by the United States Trustee, would hold a debtor’s debts to be primarily consumer if their consumer debts accounted for greater than 51% of the aggregate debt value.  Instead, the Court applied a fluid, totality of the circumstances approach, ultimately concluding that the Debtor’s debts were primarily consumer debts because the value of the consumer debts substantially outweighed that of the non-consumer debts (72% versus 27%, not including a tax debt which is an “interstitial” debt), and because there was an insubstantial difference in the count of consumer debts compared to non-consumer debts (five versus eight).