MEMORANDUM OPINION ON UNITED STATES TRUSTEE'S MOTION TO CONVERT TO CHAPTER 11 PURSUANT TO 11 U.S.C. § 706(b) OR, IN THE ALTERNATIVE, TO DISMISS THIS CHAPTER 7 CASE PURSUANT TO 11 U.S.C. § 707(a) FOR CAUSE

Jeff Bohm, United States Bankruptcy Judge.

I. INTRODUCTION

The dispute at bar arises from a motion of the U.S. Trustee (the "UST") to convert a debtor's case from Chapter 7 to Chapter 11 pursuant to 11 U.S.C. § 706(b) or, in the alternative, to dismiss pursuant to 11 U.S.C. § 707(a) (the "Motion"). [Doc. No. 20].1 This Court held an evidentiary hearing on the merits of the Motion, and for the reasons set forth herein, the Court has decided to dismiss this case under § 707(a). Therefore, the Court will not analyze the UST's request to convert this case under § 706(b).2

The Court has decided to issue a Memorandum Opinion on its decision to dismiss this case because there is a split among courts about what constitutes "cause" under § 707(a). After reviewing numerous opinions addressing § 707(a), this Court concludes that a case can be dismissed for "cause" even though the debtor has timely and accurately filed all of his Schedules and Statement of Financial Affairs ("SOFA"), completely cooperated with the trustee (including providing all requested documents), and fulfilled all of the other fundamental duties required of an individual in Chapter 7. Indeed, the debtor in the case at bar has timely satisfied all of these requirements, but his premeditated, excessive, pre-petition spending and lavish lifestyle have convinced this Court that "cause" exists to dismiss his case.

The Court makes the following Finding of Facts and Conclusions of Law pursuant to Federal Bankruptcy Rule 9014 and Federal Rule of Civil Procedure 52, as made applicable by Federal Rule of Bankruptcy Procedure 7052. To the extent that any Conclusion of Law is construed to be a Finding of Fact, it is adopted as such; and to the extent that any Finding of Fact is construed as a Conclusion of Law, it is adopted as such. The Court reserves the right to make any additional Findings and Conclusions as may be necessary or as requested by any party.

II. FINDINGS OF FACT

The relevant facts—as established by the pleadings, the exhibits, and the testimony of the witnesses—are as follows:

A. Procedural History

B. Factual Background of the Debtor

C. The Debtor's Income and Expenses

D. The Debtor's Debts

E. Pre-Bankruptcy Counseling Provided to the Debtor

F. Joint and Separate Bank Accounts

G. The IRS Refund and the Credit Card Debt Owed to American Express

H. 401(k) Contributions

I. Immediate Pre-Bankruptcy Spending

III. CREDIBILITY OF WITNESSES

Four witnesses testified during the multi-day hearing on the Motion: Allison Byman, the Chapter 7 Trustee in the Debtor's case; Cynthia Wright, a paralegal with the office of the UST; Richard D. Wilcox, the Debtor in this Chapter 7 case; and Barbara Griffin, a bankruptcy analyst with the UST. Each of the witnesses answered the questions that they were asked forthrightly; therefore, this Court finds that all witnesses were credible and accords their testimony equal weight.

IV. CONCLUSIONS OF LAW

A. Jurisdiction

The Court has jurisdiction over this dispute pursuant to 28 U.S.C. § 1334(b). 28 U.S.C. § 1334(b) provides that "the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11 [the Bankruptcy Code], or arising in or related to cases under title 11." District courts may, in turn, refer these proceedings to the bankruptcy judges for that district. 28 U.S.C. § 157(a). In the Southern District of Texas, General Order 2012-6 (entitled General Order of Reference) automatically refers all eligible cases and proceedings to the bankruptcy courts.

The phrase "arising under title 11" refers to "those proceedings that involve a cause of action created or determined by a statutory provision of title 11." Matter of Wood, 825 F.2d 90, 96 (5th Cir.1987). Here, the UST seeks conversion from Chapter 7 to Chapter 11 under § 706(b), which provides that a bankruptcy court "may convert a case under this chapter to a case under chapter 11 of this title at any time;" or, in the alternative, the UST seeks dismissal under § 707(a), which provides that a bankruptcy court may "dismiss a case under this chapter only after notice and a hearing and only for cause." Thus, the relief requested in the Motion is created by express Code provisions: § 706(b) and § 707(a). Consequently, the subject matter is within federal district court jurisdiction pursuant to 28 U.S.C. § 1334(b), and has been appropriately referred to this Bankruptcy Court under General Order 2012-6.

B. Venue

Venue is proper under 28 U.S.C. § 1408(1) because the Debtor resided in the Southern District of Texas for the 180 days immediately preceding the Petition Date.

C. Constitutional Authority to Enter a Final Order

In the wake of the Supreme Court's issuance of Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), this Court is required to determine whether it has the constitutional authority to enter a final order in any dispute brought before it. In Stern, which involved a core proceeding brought by the debtor under 28 U.S.C. § 157(b)(2)(C), the Supreme Court held that a bankruptcy court "lacked the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor's proof of claim." Id. at 2620. The pending dispute before this Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (0) because whether or not to dismiss this case concerns the administration of this estate and also affects the adjustment of the relationship between the Debtor and his creditors. Because Stern is replete with language emphasizing that the ruling is limited to the one specific type of core proceeding involved in that dispute, this Court concludes that the limitation imposed by Stern does not prohibit this Court from entering a final order here. A core proceeding under § 157(b)(2)(A) and (O) is entirely different than a core proceeding under § 157(b)(2)(C). See, e.g., Badami v. Sears (In re AFY, Inc.), 461 B.R. 541, 54748 (8th Cir. B.A.P. 2012) ("Unless and until the Supreme Court visits other provisions of Section 157(b)(2), we take the Supreme Court at its word and hold that the balance of the authority granted to bankruptcy judges by Congress in 28 U.S.C. § 157(b)(2) is constitutional."); see also In re Davis, 538 Fed.Appx. 440, 443 (5th Cir.2013) cert. denied sub nom. Tanguy v. W., ___ U.S. ___, 134 S.Ct. 1002, 187 L.Ed.2d 851 (2014) ("[W]hile it is true that Stern invalidated 28 U.S.C. § 157(b)(2)(C) with respect to `counterclaims by the estate against persons filing claims against the estate,' Stern expressly provides that its limited holding applies only in that `one isolated respect.' . . . We decline to extend Stern's limited holding herein.").

Alternatively, even if Stern applies to all of the categories of core proceedings brought under § 157(b)(2), see In re Renaissance Hosp. Grand Prairie Inc., 713 F.3d 285, 294 n. 12, (5th Cir.2013) ("Stern's `in one isolated respect' language may understate the totality of the encroachment upon the Judicial Branch posed by Section 157(b)(2) . . ."), this Court still concludes that the limitation imposed by Stern does not prohibit this Court from entering a final order in the dispute at bar. In Stern, the debtor filed a counterclaim based solely on state law; whereas, here, the Motion brought by the UST is based solely on express Code provisions (§§ 706(b) and 707(a)) and judicially-created bankruptcy law interpreting these provisions; there is no state law involved whatsoever. This Court is therefore constitutionally authorized to enter a final order on the Motion. See In re Airhart, 473 B.R. 178, 181 (Bankr.S.D.Tex.2012) (noting that the court has constitutional authority to enter a final order when the dispute is based upon an express provision of the Code and no state law is involved).

Finally, in the alternative, this Court has the constitutional authority to enter a final order on the Motion because all the parties in this contested matter have consented, impliedly if not explicitly, to adjudication of this dispute by this Court. Wellness Int'l Network, Ltd. v. Sharif, ___ U.S. ___, 135 S.Ct. 1932, 1947, 135 S.Ct. 1932 (2015) ("Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such consent must be expressed. We disagree. Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be expressed. Nor does the relevant statute, 28 U.S.C. § 157, mandate express consent. . . ."). Indeed, the UST filed the Motion in this Court, [Finding of Fact No. 4]; the Debtor filed the Response opposing the Motion, [Finding of Fact No. 5], and the parties proceeded to make a record in a multi-day hearing without ever objecting to this Court's constitutional authority to enter a final order on the Motion, [Finding of Fact No. 6]. If these circumstances do not constitute consent, nothing does.

D. Dismissal for "Cause" under 11 U.S.C. §707(a)

The UST seeks dismissal of the Debtor's case for "cause" under § 707(a).16 [Doc. No. 20]. This section provides as follows:

In Matter of Atlas Supply Corp., 857 F.2d 1061 (5th Cir.1988), the bankruptcy court denied the motion to dismiss; the district court affirmed this ruling; and the Fifth Circuit affirmed the district court's decision. Id. at 1063. In issuing its ruling, the Fifth Circuit stated the following:

Id. at 1063 (citations omitted).

In a very recent opinion, the Fifth Circuit affirmed the district court's reversal of the bankruptcy court's denial of a motion to dismiss. In re Cypress Financial Trading Co., L.P., 2015 U.S.App. LEXIS 14347 (5th Cir.2015). In affirming the district court's decision, the Fifth Circuit stated the following:

Id. at *2 (emphasis added).

Although Atlas Supply and Cypress Financial involved dismissal under § 707(a) of corporate cases, this Court sees no reason why the above referenced language should not apply to requests for dismissal under § 707(a) in non-consumer cases filed by individuals. Id. at *1; Atlas Supply, 857 F.2d at 1062. Thus, in the case at bar, this Court will keep in mind that it has broad discretion in ruling on the Motion, and will keep one eye constantly cocked on balancing the benefits of dismissal versus the prejudice of dismissal.

This Court also notes the Fifth Circuit's observation in Cypress Financial that there is a split among the circuit courts about how to analyze § 707(a), with some courts holding that "cause" under this provision includes bad faith conduct and others holding that it does not. Cypress Financial, 2015 U.S.App. LEXIS 14347 at *1. In exercising its broad discretion in ruling on the Motion, this Court finds it instructive to review how other circuit courts, and lower courts, have interpreted the meaning and breadth of the word "cause" in § 707(a) when determining whether to dismiss a case filed by an individual.

1. Some courts analyze § 707(a) by focusing on whether the debtor has acted in bad faith

The Third, Sixth, and Eleventh Circuits, in addition to a number of lower courts, have focused on whether there is a lack of good faith on the debtor's part when deciding whether "cause" exists to warrant dismissal under § 707(a).17 See In re Zick, 931 F.2d 1124 (6th Cir.1991); see also In re Tamecki, 229 F.3d 205, 207 (3rd Cir. 2000) ("Section 707(a) allows a bankruptcy court to dismiss a petition for abuse if the petition fails to demonstrate his good faith in filing"); In re Piazza, 719 F.3d 1253, 1260-61 (11th Cir.2013) ("We conclude that, based on the ordinary meaning of the statutory language and the principles of statutory construction, the power to dismiss `for cause' in § 707(a) includes the power to involuntarily dismiss a Chapter 7 case based on prepetition bad faith."). In Zick, the Sixth Circuit held that "good faith is an explicit jurisdictional requirement" and that a lack of good faith is a "valid cause for dismissal under § 707(a)." Zick, 931 F.2d at 1126-27.

The Eighth Circuit has expressed the concern that an "open-ended use of bad faith to dismiss Chapter 7 cases" is inappropriate, and adopted a "narrow, cautious approach to bad faith under § 707(a)." In re Huckfeldt, 39 F.3d 829, 832 (8th Cir. 1994) (adopting the standard articulated in In re Khan, 172 B.R. 613 (Bankr.D.Minn. 1994)). The Eighth Circuit has reasoned that, while some conduct constituting cause to dismiss a Chapter 7 petition could be characterized as bad faith, "framing the issue in terms of bad faith may . . . misdirect the inquiry away from the fundamental purposes of Chapter 7." Id. The Eighth Circuit has limited a finding of bad faith as cause to dismiss under § 707(a) to "extreme misconduct falling outside of the purview of more specific Code provisions," and held that if a bankruptcy court chooses to take action against a bad faith debtor using its inherent judicial power, it preferably should be done through some provision other than § 707(a). Id.

2. Other courts have held that "bad faith" does not constitute "cause" under § 707(a)

Unlike other circuits, the Ninth Circuit takes a much more forgiving attitude towards debtors when analyzing a request for dismissal under § 707(a). In Padilla, the debtor racked up almost $100,000 in credit card debt the year preceding his Chapter 7 filing; and over fifty percent of this debt related to gambling losses.18 In re Padilla, 222 F.3d 1184, 1187 (9th Cir. 2000). The bankruptcy court found that cause existed under § 707(a) because the debtor had acted in bad faith accumulating debts that he knew he had no ability to repay. Id. The bankruptcy appellate panel reversed this ruling, and the UST appealed. Id. The Ninth Circuit noted that "[w]hether bad faith can provide `cause' for dismissing a Chapter 7 bankruptcy petition pursuant to § 707(a) is a matter of first impression for this court." Id. at 1191. After reviewing holdings of other circuits and comparing the purposes behind Chapters 11 and 13 to the purpose of Chapter 7, the Ninth Circuit held that: "The Bankruptcy Code's language and the protracted relationship between reorganization debtors and their creditors lead us to conclude that bad faith per se can properly constitute `cause' for dismissal of a Chapter 11 or Chapter 13 but not of a Chapter 7 petition under § 707(a)." Id. at 1193 (emphasis added). The Ninth Circuit came to this conclusion, in part, by noting that Congress enacted § 707(b)—as opposed to § 707(a)—to provide an avenue for dismissal for unscrupulous debtors, at least those who are debtors with consumer debt. Id. at 1194.

Applying its holding to the specific debtor who was the subject of the appeal, the Ninth Circuit—which acknowledged that the debtor had in fact committed a so called "credit card bust-out"—nevertheless held that this conduct "did not constitute cause under § 707(a) and thus the bankruptcy court's dismissal of [the debtor's] petition pursuant to § 707(a) was improper." Id. The Ninth Circuit, while certainly aware of the "bust-out," focused on whether the debtor had fulfilled his fundamental obligations as a debtor once he filed his petition. Id. at 1193. Indeed, the Ninth Circuit emphasized that "there is no evidence that [the debtor] violated any technical or procedural requirements of Chapter 7. Id. The record reveals no further violation to pay filing fees or file necessary information. Id. [The debtor] did not falsify bankruptcy forms or cause delays during the administration of a [sic] bankruptcy proceeding." Id. Under these facts, the Ninth Circuit held that there was no "cause" to dismiss the debtor's case under § 707(a). Id. at 1194.

3. Other courts have held that no "bad faith" analysis is required and that "cause" is established when the debtor has been selfish

The Seventh Circuit has determined that "cause" to dismiss a debtor's Chapter 7 petition does not require a conclusion that a debtor's conduct amounts to bad faith. In re Schwartz, 2015 U.S.App. LEXIS 14846, *10 (7th Cir.2015). This issue was sufficiently important for a direct appeal from the bankruptcy court to the Seventh Circuit. Id. at * 1. The Seventh Circuit, affirming the bankruptcy court, found that "cause" for dismissal under § 707(a) was proper where the debtors attempted to defend themselves from a judgment by filing a Chapter 7 bankruptcy while continuing to spend thousands of dollars on "inessential consumer goods and services." Id. at *2, *12.

Specifically, the debtors spent over $11,000 a month leading an extravagant lifestyle and paying for items such as private school tuition and a luxury vehicle, "which continued post-petition without any hint of belt tightening," In re Schwartz, 532 B.R. 710, 715 (Bankr.N.D.Ill.2015), aff'd, 2015 U.S.App. LEXIS 14846 (7th Cir.2015), and where the debtors "fail[ed] to use any of their earnings or assets to pay any part of the debt they owed [to their creditors]," 2015 U.S.App. LEXIS 14846 at *7. The bankruptcy court further reasoned that the debtors' "income level is so high, that [they] shouldn't be in a Chapter 7. They should be making some effort," (i.e., pay back some portion of their debts or at least incur fewer luxury expenses). 532 B.R. at 715.

Notably, the bankruptcy court made no finding that the debtors had acted in bad faith, and in fact, refused to consider "bad faith" to denote "cause" for dismissing a bankruptcy case under § 707(a). 2015 U.S.App. LEXIS 14846 at *7, *10 ("These and other cases often use `bad faith' to denote `cause' for dismissing a bankruptcy petition for other than procedural reasons, but we can't see what is gained by the terminological substitution."). Rather, the bankruptcy court focused on "for cause" cut loose from the three subsections in § 707(a) and evaluated the case by considering all of the circumstances. Id. at *7. The bankruptcy court found cause to dismiss the debtors' case pursuant to § 707(a) because "allowing them to remain in Chapter 7, while maintaining [their extravagant] lifestyle, would result in a misuse of the protections granted by the Bankruptcy Code." 532 B.R. at 716.

The Seventh Circuit, in affirming the bankruptcy court's decision and in rejecting the debtors' argument that "cause" under § 707(a) encompasses only post-petition failure to comply with fundamental requirements of the Code, held as follows:

2015 U.S.App. LEXIS 14846 at * 7. Moreover, the Seventh Circuit held that because the debtors "failed to pay as much of their indebtedness without hardship," their "actions w[ere] deliberate and selfish" and therefore, there was cause for dismissal. Id. at *8.

4. This Court's approach of how to determine whether "cause" exists under § 707(a) with respect to an individual debtor

Distilling the above referenced opinions leads this Court to conclude that there are essentially two approaches to determining whether "cause" exists under § 707(a) to dismiss a case of an individual debtor. One is that so long as the debtor has timely, completely, and accurately filed his schedules and SOFA (and other required documents), paid his filing fee, appeared at the meeting of creditors and answered the questions posed to him truthfully, and not impeded the Chapter 7 trustee in carrying out his/her duties, then "cause" under § 707(a) cannot exist. The second approach is that even if a debtor has satisfied all of the requirements set forth above, "cause" can still exist if the debtor's conduct in some other way, either pre-petition or post-petition, is questionable—not necessarily dishonest but rather reflecting an attitude that is repugnant to the "fresh start" principle of the Code.

The Court has reflected upon these two views, and also focused on the Fifth Circuit's holdings in the corporate Chapter 7 cases of Atlas Supply and Cypress Financial. Given that (1) the Fifth Circuit held in Cypress Financial that "cause" is a broad concept and that the specific examples of "cause" in the three subsections of § 707(a) "are illustrative, not exhaustive," Cypress Financial, 2015 U.S.App. LEXIS 14347 at *2; and (2) the Fifth Circuit emphasized in both Atlas Supply and Cypress Financial that a motion to dismiss under § 707(a) requires weighing the benefits and prejudices of dismissal, Atlas Supply 857 F.2d at 1063; Cypress Financial 2015 U.S.App. LEXIS at *2, this Court concludes that it should adopt the second approach in applying § 707(a) to individual debtors. This second approach is unquestionably broader in scope than the first approach, and certainly requires this Court to do more than just scrutinize whether the debtor has fulfilled his post-petition obligations on a timely basis. The Court will now apply this second interpretation to the Motion in the case at bar.

5. In the case at bar, the evidence supports a finding of "cause" for dismissal under § 707(a)

There is no question that the Debtor in the case at bar has timely, completely, and accurately filed all of his Schedules and SOFA, has paid his filing fee, has been very cooperative in providing the Trustee with documents that she has requested, and has testified truthfully about his financial affairs. [Findings of Fact Nos. 1 & 3]. Nevertheless, under the approach that this Court has chosen to take in ruling on the Motion, the Court must focus on whether the Debtor's overall conduct, both pre-petition and post-petition, has impugned the integrity of the bankruptcy system. Considering all of the circumstances discussed in detail below, this Court finds that the Debtor's actions constitute conduct undeserving of a discharge in Chapter 7. Stated differently, the Debtor's actions amount to "cause" under § 707(a).

In Schwartz, the bankruptcy court reasoned that the debtors' "income level is so high, that [they] shouldn't be in a Chapter 7. They should be making some effort." 532 B.R. at 715. The Debtor in the case at bar is gainfully employed, earns a substantial salary and receives a host of benefits—including a housing allowance, a company car, an expense account, 401(k) contributions, and eligibility for a management bonus. [Findings of Fact Nos. 8 & 9]. In addition to his income, he received the Refund from the IRS of over $200,000, none of which he used to pay back his creditors. [Findings of Fact Nos. 18 & 24]. He has demonstrated no effort to retire any portion of his debt, and in fact, has established, through his own testimony, that he deliberately chose not to make any payments to his creditors in the year and a half prior to the Petition Date in order to avoid creating a preference! [Findings of Fact Nos. 16, 22-25]. This is exactly the type of unseemly and selfish behavior that, if tolerated, casts a pall on the bankruptcy system—and therefore, constitutes "cause" under § 707(a).

Indeed, the very notion that a debtor should be able to justify his not paying a creditor because he fears that the creditor would subsequently be sued for a preference is ludicrous. If anyone could justify having such a concern, it would be the creditor—and this Court, after more than ten years on the bench and over twenty years before that practicing law, has never seen or heard of a creditor refusing a payment out of fear of a subsequent preference lawsuit. Every creditor the undersigned judge has ever observed has always operated on the maxim of "take the money now and only worry later if a suit is filed." Indeed, most sophisticated creditors know that every payment that they receive is potentially subject to a preference lawsuit.

There is more. In Schwartz, the bankruptcy court determined that "cause" existed where the debtors were leading an extravagant lifestyle, "which continued post-petition without any hint of belt tightening," 532 B.R. at 715, and where the debtors "fail[ed] to use any of their earnings or assets to pay any part of the debt they owed [to their creditors]," 2015 U.S.App.LEXIS 14846 at *7. Here, shortly before the Petition Date, the Debtor decided to lead the lifestyle of the rich and famous by taking expensive trips to Hawaii and Scottsdale. [Finding of Fact No. 31]. The Debtor also spent over $6,900 at retail stores such as Nordstrom and Zappos, among others, [Finding of Fact No. 30], and an additional $2,514 at the Apple Store, [id.]. Furthermore, the Debtor spent lavishly on personal grooming services, shelling out more than $2,000 at a day spa, $500 at a nail salon, and $3,800 at a fitness club. [Id.].

Moreover, within the twenty-two month period of the Petition Date—and notably, after the Debtor had retained a bankruptcy attorney and was receiving counseling—the Debtor spent substantial amounts of cash on numerous consumer goods and services. [Findings of Fact Nos. 16, 20, 25, 30 & 31]. For example, he spent $8,733 on a bedroom furniture set; and over $19,600 at Nordstrom. [Finding of Fact No. 20]. He was also clearly making purchases at other stores, as his American Express bill totaled over $47,000 for one month. [Id.]. Moreover, the Debtor splurged on a $22,591 two-year prepaid lease for his wife on a Mercedes-Benz vehicle and spent more than $35,000 so that he and his family could jet set around the world. [Finding of Fact No. 25]. During this time period, the Debtor's stepson participated in a $16,813 program through "Projects Abroad" where he traveled to Peru and Nepal, while the Debtor and his wife globe trotted—in addition to the above mentioned trips to Scottsdale, Arizona and Hawaii—to London, San Francisco, Phoenix and Michigan. [Id.]. Given these extraordinarily high expenditures for what were clearly luxury goods, it is no coincidence that the Debtor and his wife established a separate account in her name into which the Debtor's salary was deposited by his employer. [Finding of Fact No. 17]. The Debtor, by his own admission, did not want his creditors garnishing any account in his name; and he and his wife clearly used the funds that were deposited into her account to make their purchases, take their trips, and lead a glorious and gluttonous life. [Findings of Fact Nos. 17, 20, 25, 30 & 31].

There is even more. On his Schedules, the Debtor represents that due to his expenses, he will only have $2.68 monthly net income despite generating monthly gross income of $23,193.33!!! [Findings of Fact Nos. 12 & 13]. Of his monthly expenses, the Debtor includes $560 on home maintenance, most of which is attributable to the cost of a housekeeper and $324 on storage for his excess furniture. [Finding of Fact No. 12] (emphasis added). The Debtor has further scheduled a total of $1,000 a month for "personal care products and services" and the cost of the "barber and beauty salon." [Id.]. He has also scheduled $500 a month for transportation and toll road fees despite the fact that his Suburban, its maintenance, and gas is paid for by his employer. [Findings of Fact Nos. 9 & 12]. Additionally, the Debtor's expenses include a $500 allowance for his unemployed, 20 year old stepson, who lives with the Debtor, in addition to the $500 scheduled for his stepson's education costs. [Findings of Fact Nos. 11 & 12]. Viewed as a whole, the Debtor's scheduled expenses demonstrate no "hint of belt-tightening" and are certainly extravagant, if not downright outrageous.

In the wake of his own company's bankruptcy, the Debtor is left with a significant amount of unsecured debt (i.e., approximately $16.9 million) due to his execution of personal guaranties. [Finding of Fact No. 15]. However, in response to his debts, this Debtor, yet again, has demonstrated no "hint of belt tightening." Rather, based upon a calculated "I come first" bankruptcy planning, the Debtor spent as much of his cash as he could on luxury goods and services in the months, and even years, leading up to the Petition Date in order to avoid repayment of any portion of his debts to any of his creditors, [Findings of Fact Nos. 16, 20, 25, 30 & 31]; and now he expects to receive a discharge of both his business debt and his credit card debt. Finally, the Debtor, no doubt based on advice from his bankruptcy attorney, protected a significant amount of his income from the reach of his creditors by sheltering it in his 401(k) retirement funds through contributing the maximum amount of voluntary annual deductions, in addition to catch-up contributions; all of which began the month he chose to stop paying his major personal creditor, American Express. [Findings of Fact Nos. 16, 21 & 26].

In sum, the Debtor has exhibited an incredibly cavalier attitude towards the bankruptcy system in general and his own creditors in particular. With this attitude, he "shouldn't be in a Chapter 7." Schwartz, 532 B.R. at 715. Returning to the Fifth Circuit's admonition in Atlas Supply and Cypress Financial that this Court should balance the benefits of dismissal versus the prejudice of dismissal, this Court concludes that the benefits of dismissal greatly outweigh the prejudice of dismissing the Debtor's case. Atlas Supply, 857 F.2d at 1063; Cypress Financial, 2015 U.S.App. LEXIS 14347 at *2. By dismissing this case, the integrity of the bankruptcy system will be vindicated because the Debtor's calculated and outrageous spending on luxury goods and services will not be rewarded with a discharge. Meanwhile, the Debtor will hardly be prejudiced by a dismissal. He will have the opportunity to file a Chapter 11 petition, and then obtain confirmation of a plan which will afford him the opportunity to obtain a discharge after paying a relatively small portion of his debts. Indeed, the UST emphasized that her analysis of the Debtor's present income and total debts would lead to a payment of approximately three percent of the Debtor's total debt under a 60-month plan of reorganization. [Finding of Fact No. 14]. Thus, in a Chapter 11 case, the Debtor would actually receive a discharge of ninety-seven percent of his total debt after he completes all of his plan payments. 11 U.S.C. § 1141(d)(5). Such a result accomplishes the primary two objectives of the bankruptcy system: namely, receipt of a discharge and payment of allowed claims to the extent possible. See In re T-H New Orleans Ltd. P'ship, 188 B.R. 799, 807 (E.D.La.1995), aff'd 116 F.3d 790 (5th Cir. 1997).

IV. CONCLUSION

In In re Swift, the Fifth Circuit, in affirming a denial of a discharge under § 727(a)(2), stated the following:

3 F.3d 929, 931 (5th Cir.1993) (citations omitted).

In the case at bar, this Court finds vitality in the pig/hog directive. The Fifth Circuit used the word "hog" to characterize the principle of "too much." Id. Even though the Debtor in the case at bar has not committed fraud, he is simply asking for "too much." The same was true for the investment bankers who appeared in this Court in the Energy Partners case and requested up-front guaranteed fees in a ridiculous amount. In re Energy Partners, Ltd., 409 B.R. 211 (Bankr.S.D.Tex. 2009). This Court denied their application for employment by stating the following: "Although the Fifth Circuit expressed this sentiment under a different set of facts than those in the case at bar, this Court sees good reason why this maxim applies here with equal force. These two investment banking firms have become hogs." Id. at 237.

The investment bankers in that case, just like the Debtor in the case at bar, had committed no fraud. Id. at 237. They simply wanted too much—just like the Debtor here wants too much. He wants a complete discharge now despite his excessive spending—on himself, his wife, and adult stepson—and despite his ersatz excuse about not paying his creditors because they might be subsequently sued for preferential payments. His lavish lifestyle and complete unwillingness to sacrifice anything at all for his creditors are simply "too much." To deny the Motion and now allow him to obtain a discharge would—to use the Fifth Circuit's lexicon—"prejudice the bankruptcy system." Cypress Financial, 2015 U.S.App. LEXIS 14347 at *2. The purpose of obtaining a discharge in a Chapter 7 is to obtain a "fresh start," not a "head start." Havis v. AIG SunAmerica Life Assur. Co. (In re Bossart), 2007 WL 4561300, at *21, 2007 Bankr.LEXIS 4349, *64 (Bankr.S.D.Tex.2007); In re Kleibrink, 346 B.R. 734, 753 (Bankr.N.D.Tex. 2006) (quoting In re Godios, 333 B.R. 644, 647 (Bankr.W.D.N.Y.2005)). Here, to allow the Debtor to obtain a discharge would be giving him a "head start." This, the Court will not do.

Finally, this Court acknowledges that if the Debtor resided in some other circuit—particularly the Ninth Circuit—he might well prevail in the dispute at bar. The rather robotic checklist approach taken by the Ninth Circuit and other courts would probably reward the Debtor for his timely, complete, and accurate filing of his Schedules and SOFA by denying the Motion. Unfortunately for the Debtor, he lives in the Fifth Circuit; and this Court, taking guidance from the Fifth Circuit's holdings in Atlas Supply, Cypress Financial, and Swift, concludes that it should reject the narrow interpretation of "cause" articulated and applied by the Ninth Circuit. Granted, the Fifth Circuit has so far declined to expressly choose sides in the split among the circuit courts about the meaning of "cause" under § 707(a). Perhaps the Debtor's counsel—who are indeed capable attorneys—will appeal this Court's ruling and thereby convince the Fifth Circuit to expressly make a choice and adopt the Ninth Circuit's approach.

In the meantime, this Court finds that this case should be dismissed without prejudice to the Debtor refiling a Chapter 11 petition. An order consistent with this Memorandum Opinion will be entered on the docket simultaneously herewith.