ORDER ON APPEAL

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE.

Before the Court is an appeal from the United States Bankruptcy Court for the District of Alaska of an Order Granting Motion to Convert Case to Chapter 11 entered in the bankruptcy case of Appellants David M. Decker and Marilyn L. Decker.1 The bankruptcy court's order converted the Deckers' Chapter 7 case to a Chapter 11 proceeding without the Deckers' consent. It is undisputed that the Deckers' debt is not primarily consumer debt. Oral argument on appeal was not requested, and the Court finds it was not necessary to the determination of this appeal. This Court has jurisdiction pursuant to 28 U.S.C. § 158(a)(1), which authorizes a district court to hear appeals from final judgments, orders, and decrees issued by the bankruptcy court.2 For the reasons discussed below, the bankruptcy court's determination will be affirmed.

The Deckers present three main challenges to the bankruptcy court's conversion order.3

First, the Deckers contend that the bankruptcy court erred when it held that 11 U.S.C. § 706(b) authorized it to convert the Deckers' Chapter 7 proceeding to a Chapter 11 proceeding without the Deckers' consent.4 As this is a legal determination, this Court reviews the bankruptcy court's conclusion de novo.5

"Where, as here, the resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear."6 Section 706, titled Conversion, provides:

As written in the statute and unlike conversions to Chapters 12 or 13 that are addressed in subsection (c), there is no debtor consent requirement contained in subsection (b) for conversions to Chapter 11. Rather, on request of any party in interest and after notice and a hearing, Section 706(d) only requires "that the debtor may be a debtor under such chapter" before a court may order conversion to Chapter 11. Although only a few courts have considered the issue, the prevailing view is that under the statute's plain language, a bankruptcy court may convert a Chapter 7 case of a debtor with non-consumer debts to a Chapter 11 proceeding without the debtor's consent.7 The Court agrees — the plain language of 11 U.S.C. § 706(b) makes it clear that a bankruptcy court may convert a Chapter 7 proceeding to a Chapter 11 proceeding without the debtor's consent.

The Deckers' second argument is that notwithstanding the plain language of the statute, the bankruptcy court's construction of § 706(b) conflicts with § 707(b).8 Section 707(b) allows a court to dismiss a Chapter 7 case of a consumer debtor if the court finds that granting relief "would be an abuse of the provisions of this chapter."9 Section 707(b) also allows a court to convert such a case to a Chapter 11 or Chapter 13 proceeding, but only with the debtor's consent. Whether a filing is presumptively an abuse is controlled by § 707(b)(2)(A)(i) based on a calculation of the debtor's income and expenses — the "means test." But even if the filing is not presumptively an abuse or the presumption is rebutted, § 707(b) permits a bankruptcy court to dismiss a Chapter 7 proceeding if the court finds that the discharge would be an abuse based on the totality of the circumstances.

The Deckers argue that allowing a bankruptcy court to convert to Chapter 11 without their consent pursuant to § 706(b) makes § 707(b) superfluous because a court will always be able to convert under § 706(b) — for both consumer and non-consumer debtors alike — without going through the procedure laid out in § 707(b).10 But an overlap in § 706 and § 707 does not mean that the plain language of § 706(b) should be ignored.11 And in any event, the Deckers, being non-consumer debtors, are not subject to § 707(b), so there is no overlap or conflict in applying § 706(b) to convert their case to Chapter 11.

Finally, the Deckers assert that the bankruptcy court abused its discretion because it found "material net income, standing virtually alone, mandated conversion."12 A decision to convert is an abuse of discretion "only if [it is] based on an erroneous conclusion of law or when the record contains no evidence on which [the bankruptcy court] rationally could have based that decision."13 Section 706(b) does not provide guidance on what (or what not) to consider when reaching a decision. Thus, courts have held that "[t]he decision whether to convert [under § 706(b)] is left in the sound discretion of the court, based on what will most inure to the benefit of all parties in interest."14 "Since there are no specific grounds for conversion, a court `should consider anything relevant that would further the goals of the Bankruptcy Code.'"15 Courts have considered various factors, including "(1) the debtor's ability to repay debt; (2) the absence of immediate grounds for reconversion; (3) the likelihood of confirmation of a Chapter 11 plan; and (4) whether the parties in interest would benefit from conversion."16

Although the bankruptcy court began its analysis with consideration of the Deckers' ability to pay, it analyzed far more than just that. It considered whether conversion would be futile or whether there would be no possibility of a confirmable plan. The court analyzed what would maximize the estate and whether an immediate reconversion or dismissal would be required. And the court considered the benefit to the Deckers of a Chapter 11 discharge. The court held that it would help the Deckers resolve the "ongoing dispute" with the Internal Revenue Service that the Deckers had been unable to resolve for "almost a decade." And the court noted that under Chapter 11 the Deckers would be able to "retain the ability to continue to support their adult children." The bankruptcy court concluded that while "conversion may not give Debtors immediate relief, [it could] ultimately result in a better fresh start."17 On review, the Court finds no abuse of discretion in the bankruptcy court's analysis.

CONCLUSION

For the foregoing reasons, the Order Granting Motion to Convert Case to Chapter 11 is AFFIRMED.