Need help on this one!!!! Is what my trustee told me correct????

[5sracing]

I had my ch 13 voluntarily dismissed on Sept 20. My last payment the trustee received in his office was on sept 21. He claims since the money was earned prior to the 20th that he does not have to refund me the payment even though it was received after the dismissal date. Is he right?

[keepinitreal]

If you're going to re-file as a Chapter 7 as you wrote a while back, perhaps you can list this money as an asset and not exempt it. See if the Chapter 7 Trustee goes after it.

[walkthaplank]

I'm sure the legal eagles would be able to give you a better answer, but my understanding is that any money in the trustee account that has not been disbursed MUST be returned to the debtor less any applicable trustee fees when a case is dismissed. I don't know if voluntary dismissals are handled differently. What does your lawyer say?

[tobee43]

I had my ch 13 voluntarily dismissed on Sept 20. My last payment the trustee received in his office was on sept 21. He claims since the money was earned prior to the 20th that he does not have to refund me the payment even though it was received after the dismissal date. Is he right?

someone WILL correct me if i am wrong...but it most likely was post marked prior to the 20th....and rec'd in the trustee's big greedy hands on the 21st...it's a technicality... but one you may not win if they go by the intent of the payment was to have been the 20th...they will say you, were in fact late. LOL! not really funny, but in some cases true.

[justbroke]

I had my ch 13 voluntarily dismissed on Sept 20. My last payment the trustee received in his office was on sept 21. He claims since the money was earned prior to the 20th that he does not have to refund me the payment even though it was received after the dismissal date. Is he right?

You need to read the Order Dismissing the case. In that order, will be the amounts the Trustee is allowed to keep and distribute to creditors, and the amount that should be returned to the debtor or debtor's attorney. This may vary by District, but any money that was sent to the Trustee and in their hands when the Order was entered, is subject to distribution.

If you feel that the Trustee is wrong, then you need to file a Motion to Compel Turnover, but from what I'm reading here, I'm not sure that you will be granted your motion.

So, what was the exact date of the Order Dismissing the case? (not the date that you filed the motion to voluntarily dismiss)

I'm sure the legal eagles would be able to give you a better answer, but my understanding is that any money in the trustee account that has not been disbursed MUST be returned to the debtor less any applicable trustee fees when a case is dismissed. I don't know if voluntary dismissals are handled differently. What does your lawyer say?

This is partly true. This also varies by District. In my District, the Trustee is allowed to pro-rate up to the date of the Order granting the dismissal. In other Districts, the Trustee can disburse, to secured creditors, their payments that were "in-hand" at the time the Order granting the dismissal was entered. This is a very specific procedural area for Chapter 13s and there has been a lot of litigation on this topic.

[tobee43]

You need to read the Order Dismissing the case. In that order, will be the amounts the Trustee is allowed to keep and distribute to creditors, and the amount that should be returned to the debtor or debtor's attorney. This may vary by District, but any money that was sent to the Trustee and in their hands when the Order was entered, is subject to distribution.

If you feel that the Trustee is wrong, then you need to file a Motion to Compel Turnover, but from what I'm reading here, I'm not sure that you will be granted your motion.

So, what was the exact date of the Order Dismissing the case? (not the date that you filed the motion to voluntarily dismiss)

This is partly true. This also varies by District. In my District, the Trustee is allowed to pro-rate up to the date of the Order granting the dismissal. In other Districts, the Trustee can disburse, to secured creditors, their payments that were "in-hand" at the time the Order granting the dismissal was entered. This is a very specific procedural area for Chapter 13s and there have been a lot of litigation on this topic.

did i just try to say that??? LOL!!!!!!!!!!!!

[justbroke]

did i just try to say that??? LOL!!!!!!!!!!!!

I don't know. You were saying something about post marks. I'm not good with the mail, so I tried to explain it my own way. LOL

[tobee43]

I don't know. You were saying something about post marks. I'm not good with the mail, so I tried to explain it my own way. LOL

jb you're always so good at being so legally technical....i guess i lose my lust of the love of law after 5 pm...oh! yeah...and after they stopped paying ...LOL!!!

thanks for the correct answer...as usual and as unfortunately for u is always expected.

[5sracing]

My case was dismissed on Sept 17 by the judge. My employer mailed out the payment on the 17th and the trustee received it on the 20th. They admitted they received it after the dismissal but claim that since that money was earned prior to the dismissal it will be disbursed out to creditors. My attorney is absolutely no help either. I will fight this one.

[justbroke]

My case was dismissed on Sept 17 by the judge. My employer mailed out the payment on the 17th and the trustee received it on the 20th. They admitted they received it after the dismissal but claim that since that money was earned prior to the dismissal it will be disbursed out to creditors. My attorney is absolutely no help either. I will fight this one.

You may have a case. Look at 11 USC 349(b)(3).

11 USC 349(b)(3) [a dismissal of a case other than under section 742 of this title] revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title

Here's a good case as well... I think that Nash, In Re Nash, 765 F.2d 1410, 9th Circuit July 17, 1985 is even cited in my Circuit (the 11th), when referring to what the Trustee can do with funds in hand. That's why I suggest that you look for cases in your District. I'd also, again, review the Order Dismissing the case because it should also discharge / dismiss the Trustee and instruct the Trustee about the funds existing.

For example, my order of conversion (same as a dismissal for what we're talking about), converting my case from Chapter 13 to Chapter 7, contained this paragraph... (Note: that they had over $10K in their possession after a few weeks post conversion, before I received my "overpayments".)

[Trustee], is discharged by the Court. She is authorized to retain $ 0.00 , as allowed fees and/or expenses, to pay $ 0.00 to secured creditors, to pay the attorney for debtor $ 0.00 and, unless a written objection is filed within twenty−one (21) days of this order, to turn over the balance of $ X,XXX.XX, in her possession to the debtor.

Also, Ssracing, please know that you have inconsistent dates in your post. At one point you say 9/20 was the date of dismissal, and just above you say it was ordered on 9/17. These could be differentiators.