Motion to dismiss

[kieana91]

Hi I am in Mississippi and I am in a chpt 13 since 2007. Today I received a motion to dismiss for failure to make payments. This is the third time. I know that I won't be able to make all of the payment but I will be able to make some of it. If I make one payment then I will be 30 days behind. The last time my lawyer worked everything out and the proposal was that if I became more than 60 days delinquent my case will be dismissed. If I make this month's payment and I am still behind one month, will my case still be dismissed?

[shark66]

Welcome to the forum!

It really depends on your trustee and local practices.

You need to contact your attorney immediately and see what can be done.

Good luck.

[justbroke]

Yes, it really depends on the Trustee. However, Chapter 13s are not something where you should even consider being "late" on payments. Usually, to have the Motion withdrawn, you need to come current! This usually means the past due payments PLUS the current payment that is due. If this was caused by a change in income or major incident (death, injury, etc), then you could get a forbearance.

However, this reads as though you're just having trouble budgeting. Since this is your third time being late... the Trustee may not be as understanding since you learned nothing. On the other hand, it is the Trustee's job to "help" you be successful in the plan since they make no money if you pay no money. It's a tough spot to be in.

Why do you keep falling behind? You really need to evaluate this issue. Perhaps your income is not "regular" enough to have the plan that you have in place. Perhaps you just can't or won't budget. Whatever the problem is, it seems to be a "real" problem since this is the third time your Trustee is moving for a dismissal. You and your attorney should have a good chat about your real budget and your issues.

I say this as a former Chapter 13 debtor. I know that my Trustee wouldn't allow this the third time unless something materially changes (or changed). For example, perhaps you're not on a wage deduction at this time and putting you on one would insure payment to the Trustee.

[kieana91]

Thanks to both of you for the advice. I am going to contact my attorney tomorrow. I have been having trouble paying every since my payment has increased by $188. I have even called the trustee's office a couple of times to let them know I was going to be late. I am self paying so it is really difficult abd I get paid once a month at the end of the month on a teacher's salary. I am hoping for a miracle since I only have a year left. My plan was confirmed 8/2007.

[jetsfan2010]

Have you talked to your attorney about this? Perhaps you should look to convert to a 7?

[kieana91]

No I am going to talk to him tomorrow. The only thing that concerns me with a chpt 7 is the fact that I have a house and I don't want to lose it. Maybe they will some kind of way will spread the unpaid balance throughout the next year that I have.

[justbroke]

kieana, that's called a modification and the bank may be very willing to do so. However, I would never sign a reaffirmation agreement in the Chapter 7. If you're unable to deal with that increased payment of $188, then you really should have and need to talk to your attorney immediately. You don't want to fail in the last year of a 5 year plan!!!