IX. SPECIAL CIRCUMSTANCES
Upon a finding of presumptive abuse under Section 707(b)(2), the debtor may show that his or her case should not be dismissed based on the showing of "special circumstances." 11 U.S.C. § 707(b)(2)(B). For an expense to be allowed as a special circumstance, it must be "special" in relation to the circumstances of other debtors, must be reasonable and necessary, and must be an expense for which there is no reasonable alternative. See In re Hammock, 436 B.R. 343, 353 (Bankr. E.D.N.C. 2010) (citing In re Siler, 426 B.R. 167, 176 (Bankr. W.D.N.C. 2010)). There is no requirement that the expense be beyond the debtor's control. See In re Sandberg, 629 B.R. 452 (Bankr. N.D. Ill. 2021) ("this court 'will not read into § 707(b)(2)(B)(i) an involuntariness prerequisite,'" citing In re Burggraf, 436 B.R. 466, 472 (Bankr. N.D. Ohio 2010)).
Either an expense or income change may be considered "special." However, counsel should also be mindful of the procedural requirements for a showing of special circumstances. Per 11 U.S.C. § 707(b)(2)(B)(ii), the debtor must itemize each additional expense, provide supporting documentation and a detailed explanation of circumstances that make the expense reasonable and necessary. Further, the debtor "shall attest under oath to the accuracy of any information provided to demonstrate that additional expenses or adjustments are required." 11 U.S.C. § 707(b)(2)(B)(iii).
Section 707(b) provides two examples of what is considered "special": "a serious medical condition"; or "a call or order to active duty in the Armed Forces . . ." 11 U.S.C. § 707(b)(2)(B). Aside from these two examples, authority is mixed.
A. Special Circumstances Found
1. Medical Expenses and Disability: See In re Edwards, 2010 WL 1006890, No. 09-09250 (Bankr. E.D.N.C. Mar. 17, 2010) (Chapter 7); In re Chabre, 531 B.R. 875 (Bankr. M.D. Fla. 2015) (Chapter 7)....
2. Unusually High Housing Expenses: See Robbins v. Ervin (In re Ervin), No. 15-70467, 2016 Bankr. LEXIS 557 (Bankr. W.D. Va. Feb. 23, 2016) (maintenance of two separate residences due to employment). In re Everhart, 607 B.R. 565 (Bankr. 2019) (Chapter 13) (utility and home insurance expenses that exceed local standards allowed as a special circumstance); In re Miller, No. 3:21-BK-02093-BAJ, 2022 WL 1528089 (Bankr. M.D. Fla. May 13, 2022) ($125.00 monthly expense for the palm trees to be trimmed pursuant to HOA requirements).
3. Unusually High Transportation Expenses: See In re Batzkiel, 349 B.R. 581 (Bankr. N.D. Iowa 2006) (Chapter 7); In re Turner, 376 B.R. 370 (Bankr. D. N.H. 2007) (Chapter 7).
4. Mandatory 401(k) Loan Repayment: See In re Lenton, 358 B.R. 651 (Bankr. E. D. Pa. 2006) (Chapter 7); In re Everhart, 607 B.R. 565 (Bankr. N.D. Tex. 2019) (Chapter 13) (403(b) loan repayment properly deducted). In re Livingston, No. 21-10879 (LSS), 2022 WL 951339 (Bankr. D. Del. Mar. 29, 2022) (Chapter 7) (also finding that the loan may be deducted as a secured debt payment on the means test).
5. Nondischargeable Student Loans: See In re Templeton, 365 B.R. 213 (Bankr. W.D. Okla. 2007) (Chapter 7); In re Delbecq, 368 B.R. 754 (Bankr. S.D. Ind. 2007) (Chapter 7); In re Haman, 366 B.R. 307 (Bankr. D. Del. 2007) (Chapter 7); In re Martin, 371 B.R. 347 (Bankr. C.D. Ill. 2007) (Chapter 7); In
