Trustee motion to dismiss i am going crazy

[adina]

i checked pacer and the trustee filed a motion to dismiss stating the plan will take 75 months to complete and also that my disposable income is 75948 for the 60 month period but i am only proposing to pay 7% to unsecured. i have included taxes at 100% my car which i owe 28k and two student loans 25k which he states are misclassified. I barely have enough to make my payments per month what does this mean? I am waiting for an answer from my attorney. What can i do to convert to a 7 do i take a leave of absence?

[Pandora]

well if the trustee is calculating 75,948 as your DMI over the course of 60 months, that would mean your payment would be $1265.80 a month. He's stating it would take 75 months based on your DMI - so either you have too much in exemptions and you have to pay them into your plan if you want to keep them, or your priority claims (taxes) take up too much of your income. Or at least its how I'm reading it.... I could be wrong though

You may have to let the car go if you cant cram it down, making it possible to pay your plan in full.

What does your schedules claim your left over DMI is? What are your priorities (like your taxes..what is that amount you owe?)


ETA: I just read your other post re: your rent, etc - and it appears your lawyer calculated $1265 as your DMI. What I dont understand is that if your rent is 1900 a month and you have lived there a while paying that amount before filing - how the Trustee/Lawyer can make you claim $1400 for it? It's my understanding that while the IRS guidelines are what is used - its merely that...a guideline - it can be over or below what is "standard".

You're set up to fail from the beginning if you cannot fund even your rent. That is insane.

[adina]

I just spoke to attorney and he stated that the rent is the standardized amount allowed which sucks because that is 500 extra dollars the trustee thinks i have. My priorities are about 25k payable at 100% plus the attorney included 25k in student loans at 100% i dont know i am sick i mean i am damned if i do and damned if i dont. any ideas on exemptions i might be overlooking to see if i can qualify for a 7

[ccsjoe]

I think this is where a good attorney would come in to challenge that. Your real expenses are what they are and just because your rent exceeds the IRS guideline does not mean you have to magically reduce your rent and create an extra $500 in cash. I would tell your attorney to tell you what he/she is going to do about challenging this.

[Pandora]

...plus the attorney included 25k in student loans at 100%

Again - I question your attorney's actions. Student loans should be deferred in a Ch. 13 plan - not included in payback. You certainly have the option to defer them until your plan is complete - while interest will acrue, you get a 3-5 year "break" in payments so you can devote that $ to other bills... like your rent.

Is this the only attorney you interviewed before you filed? I'm sorry, but your attorney sounds very very incompetent, which is just making things very hard on you.

ETA: Just as ccsjoe stated - your expenses are your expenses. If your rent is 1900, then thats what it is. If your attorney is saying you MUST only claim IRS guidelines - ask your attorney if he/she is going to pay to have your lease broken, moving expenses, security deposits, etc etc etc in order for you to find a cheaper place to live! Crap like this just aggrevates me to no end.... some attorneys should not be attorney's at all.

[adina]

I checked and i am only allowed 1446 per month for rent it states if it were a mortgage i would get the full amount but not with rent. Needless to say i think my attorney doesnt know up from down right now he said if i pass the means test (he sent me the link) than we could try that however i already paid the attorney plus the first month to the trustee now its another 1000 to try for a 7. anyways i did it and i passed with a negative i emailed the results to him i dont know what to do because i wasnt behind on my student loans nor my car and since filing he advised me to not pay now i am late on everything

[biotechsolution]

you won't be able to include the student loans in either the chapter 7 or 13 for expenses.

[CoBelle]

I'm with Pandora. I think your attonrey isn't willing to fight the trustee. (And I should know cuz my attorney started out suggesting that if I paid the attorney MORE that maybe it would 'encourage' the trustee to accedpt my plan. Not to mention that my attorney charged me 10k and then asked for MORE for avoiding liens, even tho her contract clearly states taht everything is included. SOME attonreys are incompetent, some are crooks, and some (but not enough) are really good and also empathetic to their clients. (Boy, would I like one of those for a change).

Of course things vary by District, but remember that it is the judge who gets to decide on things like rent if you 're lawyer fights it and not the trustee .

[despritfreya]

There are 2 budgets. Form 22C and Schedule I&J. The first is your "fake" budget and the 2nd is your real budget. Under the Lanning decision, basically you look at your real budget. HOWEVER, your local jurisdiction may have limits on what you can spend on a particular item. For example, 35% of your monthly gross may be the limit on shelter costs. If you are over that you may have to show your Trustee a need to spend more. By way of another example, you can't be spending $500/mo. on recreation but, you can spend that on medicals based upon your need. Student loan payments are not reflected on either budget.

Go through your Schedule I&J and, if there are local guidelines as to what you can spend, compare them. Maybe that is where the Trustee is having issues.

As to the student loan mis-classification. . . did your attorney list them of Schedule F or on E. If on "E" the Trustee is correct since they are not priority. If that is what happened I am with Pandora. Where to place them is "bk 101" and if your attny put them on E, well I just have to wonder. . . Further, in most, if not all jurisdictions, unless your Plan is paying 100% of all allowed claims, your Plan cannot discriminate in favor of the loans and, therefore cannot propose to pay them 100%. (I suspect your attny listed them as a priority claim in the Plan, which, again, would be wrong.)

Hope this helps.

Des.