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New case MAY affect retirement deductions in the means test in South Carolina. “the remaining issue is whether sections 541(b)(7) and 1322(f) impact the outcome of an ability to pay analysis under section 707(b)(3)(B).
That said, an ability to pay analysis under section 707(b)(3)(B) is generally considered within the context of a hypothetical chapter 13 case. Therefore, a strict application of Anes would yield the anomalous result that the Debtors’ retirement funds are counted as disposable income in disqualifying them from chapter 7, but excluded from disposable income in chapter 13.
The Trustee asserts that this outcome is simply a function of the difference between chapters 7 and 13, a position that the Court finds frustratingly myopic. Although he cites a string of post-BAPCPA cases that considered retirement funds as part of an ability to pay analysis under a section 707(b)(3)(B), the Court finds that upon a closer review these cases are less persuasive than the Trustee would suggest. ”