Hearing tommorrow Currant vs Projected

[dovette7]

Ok.. court is early tommorrow morning. Attorney has every possible thing I could think of including research that I found from the U.S. Trustee Program Position on Ch 13. Which says their position on Line 58 of means test is:

The disposable income determined on line 58 is not the same as the "projected disposal income" of section 1325(b)(2)(B). Historical inocme is not conclusive; rather, the disposable income projected over the life of the plan should be used. The disposable income and the calculations shown on Form 22C are a "starting point" or framework for the calculation of "projected disposable income."

That is our argument tommorrow morning. It is really scary to know that one woman's decision will determine the outcome. Hopefully it will go well and pave the way for others behind me.

[Granny]

Good luck Dovette, I'll be thinking about you.

[JollyGG]

Good luck

[lrprn]

Our case has a very similar objection to yours, Dovette, so I'm very interested in hearing what your judge has to say as well. Do realize that you won't get a decision tomorrow. As I understand it, the judge will file an official written opinion regarding her interpretation of the law in question using the briefs that your lawyer and your trustee have already both provided. I don't know how long it typically takes a judge to hand down a decision - hopefully one of our other members or moderators will have some insights to share.

Know we are all with you in spirit! I hope the decision goes your way, because whatever is decided affects not just you, but many other Ch 13 filers who are caught up in how to interpret this area of the Means Test. GOOD LUCK!!

[SinkingFast]

Good Luck Dovette!!

Our prayers will be with you, your attny, and the Judge tomorrow!!

[coma]

Hang in there! I'll be crossing my fingers for you! Please let us know how it went! I've got a hearing on 6/21 for our motion for hardship discharge...court scares me

[CATCHMEIFYOUCAN]

Hearing tommorrow Currant vs Projected

Ok.. court is early tommorrow morning. Attorney has every possible thing I could think of including research that I found from the U.S. Trustee Program Position on Ch 13. Which says their position on Line 58 of means test is:

The disposable income determined on line 58 is not the same as the "projected disposal income" of section 1325(b)(2)(B). Historical inocme is not conclusive; rather, the disposable income projected over the life of the plan should be used. The disposable income and the calculations shown on Form 22C are a "starting point" or framework for the calculation of "projected disposable income."

That is our argument tommorrow morning. It is really scary to know that one woman's decision will determine the outcome. Hopefully it will go well and pave the way for others behind me.

I had to go before a judge for the exact same thing basically Means Test vs Schedules I and J. The judge said he didn't want to make the decision as he was unsure of what congress was trying to do when they added the Means Test. My means test proved I was - $60.00 whereas schedules I and J proved I had + $800.00. The judge said I had 15 days to submit another plan (not necessarily $800 - my original proposed plan was for $250 - but the Trustee wanted the full $800) OR simply quit one of my full time jobs and convert my case to Ch7. I did what made sense. QUIT !

Best of Luck, CMIYC

[CindyLou]

my brother has the same issue. But his is 100% payback plan and he is paying on the total owed /60 months ($800) His disposable income is approx. $1600 per month, but the trustee has said that if no more claims show or that if less claims show he will pay whatever the total/60 months. She even delayed his confirmation hearing until 2 weeks after the deadline for claims. It seems many districts are interpreting many different ways.

[dovette7]

Update

Well we were there for 3 hours and our attorney talked with trustee prior to starting of hearings. Apparently there IS case law in our district allowing payments to be based on "projected disposable income" vs means test. In the previous cases there was a change of circumstances....which we have. I have not worked due to injury, since filing we have high medical and rx bills. So trustee decided that he might could confirm the case without a hearing with prove of all of this. Attorney will be getting him all documentation. He also said numbers on means test needs to change with these numbers included to get the means test payment down closer to what we turned in. He may can confirm it this way, but we will have to see.
Re-set hearing date for May 31. So I'm a lady in waiting again. Attorney felt this was a good move and even if we end up with a hearing, that there is case law in our favor.

Trustee's biggest concern was that I did not work. Last year I made $15K in real estate sales...$7800 in September alone therefore it was a part of my last 6 months income. I got a job in December (per my attorney advice) showing I was trying to create income. After paying daycare, I was netting $30 a week and it just wasn't working. Husband out of town and I was only parent with 3 kids. Real estate sales has hit bottom here and then I was injured with herniated disk. Trustee says I should be able to work in real estate with this injury since I can do it from home. And it is "temporary" so payments shouldn't be based on "temporary" Attorney says stand ground.

So we are trying to get some of the means test expenses changed (taxes and medical bills) to lower what this shows I should be paying closer to what Scheduale J shows I can pay. There still will be about a $900 diffrence and that is because my previous 6 month income is on means test.

Attorney is hopeful that trustee will be able to confirm case without hearing. I'm waiting. At least case wasn't heard and dismissed today!!

[Minnymouth]

dovette,

Evidently Trustee does not understand that you cannot take kids with you when you are showing homes..............DUH - What world is that one walking around in - not ours!!!

Not profitable for you to work with 3 kids to ride herd on......... besides being injured at the present time.......

A lot of real estate personnel do not have the pleasure of working out of their homes........................ especially if they work for an agency......

This Trustee needs to wake up and smell the roses................

[dovette7]

I know right!! Thanks for making me feel sane on this issue.
I realize that in a Ch 13, commissions are considered income. In my business,
I had a huge year in 2005...over 6 figures. I made $15K in 2006 and half of that in September. Nothing since in real estate. Our market is terrible and I was selling land and lots to builders and developers. We are over saturated with new homes in this area...new and resale homes are sitting for months. Foreclosures are up 100% here. The $7800 I made in September was from a deal the PREVIOUS October! There is no way we could use the avg of that and the small job I had ($1660 total avg a month) into our plan. It doesn't exist. I actually have been emailing clients from home. Zero results. So I cannot base my payment with $1660 a month additional income that is NOT regular or consistant and right now I have $0. Husband's income is stable and consistant.

Has anyone run into that issue? When and if you are on 100% commission...how is that regular income? I would be all for giving Trustee any commissions I could recieve minus taxes to go towards paying creditors. But I cannot have my monthly payment based on a the possibility that I will have sales, based on one deal from last September.

[Minnymouth]

Be sure to EXPLAIN all this at the hearing.......................possible income is not the same as guaranteed income...... and commissions are possible income...... you may make it, you may not....

And a good arguing issue is the state of all foreclosures right now, and that the housing market has bottomed out...................

Stand you ground.........................besides if you DID have commissions come in you would have to report them anyways to the Trustee..............

Your plan payment cannot be based on "possible income"..................

This Trustee is blowing at the wind.............wishful thinking................

[dovette7]

Thanks!! Needed to hear that right now. I truly appreciate all of you on here sharing your wisdom and experiences. I will stand my ground...

[SinkingFast]

I'm sure that would go over well with your clients. Dragging 3 kids along for showings!!

That puts you paying day care with no guarantee of any return in income.

Not to mention dealing with a back issue. Been there done that. You never know what's gonna set it off. One day, I picked up a paper sack with a blouse in it and felt that flash of pain. Things went down hill from there the rest of that day. The next day, I couldn't get out of bed.

Maybe you can get back to selling Real Estate when the kids are in school. MAYBE.

That Trustee needs to just stuff it!!

Just because you've worked in the past does not mean the Court can force you to in the future.

Maybe you should ask the Trustee if he/she will babysit while you work??!!

[DeadManCrawling]

Just because you've worked in the past does not mean the Court can force you to in the future.

Maybe you should ask the Trustee if he/she will babysit while you work??!!

EXACTLY!

Catchmeifyoucan posted that he QUIT one job to avoid this sort of thing, and was told by the judge, no less, that in America you can't be FORCED to work.

I know they are looking at the 6 months prior, but hopefully they will consider the future. If I recall, there is a question on one of the forms that asks if you expect an increase or decrease in income, and on what basis. Seems like this should be more important than historical income.

-dmc