Price v. United States Trustee (In Re Price)

RYAN, Bankruptcy Judge,

concurring.

While I concur with the result that the majority reaches, I disagree with the its assertion that the holding in Zolg v. Kelly (In re Kelly), 841 F.2d 908 (9th Cir.1988), concerning mortgage debt is dicta. In Kelly, the Ninth Circuit decided the question of what constituted consumer debt. Specifically raised before the court was whether the bankruptcy court had properly considered the debtor’s mortgage debt in the consumer debt calculus. Thus, the issue was an essential part of the Kelly holding. See Kelly, 841 F.2d at 912-13. We merely need to affirm regarding the bankruptcy court’s holding that mortgage debt is to be treated as consumer debt under § 707(b) by simply following the Ninth Circuit’s holding in Kelly.