presumption of abuse

[guzzie]

sorry about your situation....good luck

[HHM]

You can still try to overcome the "presumption of abuse". But that is something we can't really help you with here.

However, you, (or your attorney) should not have been surprised to receive the presumption of abuse motion when you are significantly over the median income and attempt to file a Chatper 7.

[dumbdumb]

Is it correct that if the case is dismissed then i can refile in 180 days (6 mo)?

If this is so how long after my homes foreclose do i have before my creditors come after me?

neither home has foreclosed yet although one is 7 mos past due.


this is what i am thinking....
nevada med income is $40682 which comes out to roughly $19.55 pr hour based on a 40 hr work week.
I make less than that $18.75 but have volunteered for alot of OT which pushed me above the median income. ( someone correct my figures if i am wrong)

i can just work my 40 hrs and occasionally take a day off here and there and my income will drop below the median. then i can refile for chapter 7 again? pro se

[freshstart06]

If it is dismissed they you can file in 6 months but I think you lose the automatic stay (someone help me out) yes, it is based on your last 6 months but they know you can get overtime so I am not sure how that will work.

If I was you just keep fighting this out and see what happen, please take the time to read previous post similiar to your situation, yes, they are out there and they closed. I telling you I looked on pacer and out here in Arizona there are a lot of people over the median like $14,000 plus and discharge and close. It is possible, they want you to give up but don't at this point you have nothing to lose if you keep trying.

[JRScott]

The problem with getting the case dismissed is that it can lead problems. As long as it is dismissed and not dismissed with prejudice you can refile with the same debts in 6 months. If however the Trustee dismisses with prejudice then you cannot list certain debts again.

Also the automatic stay I believe is only 30 days if you file again and you have to prove to the court it is not abuse in order to have it extended for the full time.

[supastar84]

Hey I don't know your whole story but it sounds like you have two houses that are your main financial problem. Are they both rental properties? Did you file Chapter 7 as a business debtor (claiming that over 50 percent of your debt was for business purposes) or consumer debtor? If you are a business debtor (and fill your forms out stating this) you don't have to take the means test (and thus I'd assume they can't come back and say your income is to high). Let me know im interested to know.


I have four rental props in the same situation as you. I owe a lot more than what they are worth, they won't sell, and I can't handle the stress anymore. Anyhow, I am signing my petition tomorrow for Ch 7 as business debtor. My income is too high to qualify using means. Hopefully my atty knows what he is talking about and mine will go through successfully.

[dumbdumb]

Hey I don't know your whole story but it sounds like you have two houses that are your main financial problem. Are they both rental properties? Did you file Chapter 7 as a business debtor (claiming that over 50 percent of your debt was for business purposes) or consumer debtor? If you are a business debtor (and fill your forms out stating this) you don't have to take the means test (and thus I'd assume they can't come back and say your income is to high). Let me know im interested to know.


I have four rental props in the same situation as you. I owe a lot more than what they are worth, they won't sell, and I can't handle the stress anymore. Anyhow, I am signing my petition tomorrow for Ch 7 as business debtor. My income is too high to qualify using means. Hopefully my atty knows what he is talking about and mine will go through successfully.

I never heard of business debtor or consumer debtor... another reason my attorney is bad.. i will ask about this one.
if you file as a business does it save your personal credit? and dont you have a separate business name like Losing MY @$$ I Realestate Incorporated?

[HHM]

I never heard of business debtor or consumer debtor... another reason my attorney is bad.. i will ask about this one.
if you file as a business does it save your personal credit? and dont you have a separate business name like Losing MY @$$ I Realestate Incorporated?

What superstar is referring too is the "type of debt" that you have. Also, we are talking about "personal debt". If the majority of your debt is "business" debt that you are liable for, then the means test/income issue falls away and you get to file a chapter 7 regardless. If your debt is primarily consumer debt, then you are subject to the means test and income and expense guidelines.

To clarify another issue, there is individual BK and Corporate BK...which is what you are alluding too DD. If your business is a separate legal entity, i.e. corporation, LLC, etc, then yes, you "could" file BK under the businesses name, but "corporate" BK is a whole other can of worms.

[dumbdumb]

The problem with getting the case dismissed is that it can lead problems. As long as it is dismissed and not dismissed with prejudice you can refile with the same debts in 6 months. If however the Trustee dismisses with prejudice then you cannot list certain debts again.

Also the automatic stay I believe is only 30 days if you file again and you have to prove to the court it is not abuse in order to have it extended for the full time.

I am so amazed you guys really think of everything!

if i decide not to file a chapter 13 and want the case dismissed wouldnt that be my decision and it would be without prejudice?

in six months i think my homes would both be foreclosed on by that time. so i dont really care about the automatic stay.

[dumbdumb]

What superstar is referring too is the "type of debt" that you have. Also, we are talking about "personal debt". If the majority of your debt is "business" debt that you are liable for, then the means test/income issue falls away and you get to file a chapter 7 regardless. If your debt is primarily consumer debt, then you are subject to the means test and income and expense guidelines.

To clarify another issue, there is individual BK and Corporate BK...which is what you are alluding too DD. If your business is a separate legal entity, i.e. corporation, LLC, etc, then yes, you "could" file BK under the businesses name, but "corporate" BK is a whole other can of worms.

thanks HHM... I have two credit cards totaling $8000 and two homes . one home i live in and the other was to be rented. can that be considered 50%?

[CindyLou]

I would think that it depends on the amount of the mortgages....if the amount of the mortgage of the rental is higher than the one where you live then it would qualify....is the credit card personal or is it for charges related to the rental? this would also come into play.

[SinkingFast]

I am so amazed you guys really think of everything!

if i decide not to file a chapter 13 and want the case dismissed wouldnt that be my decision and it would be without prejudice?

in six months i think my homes would both be foreclosed on by that time. so i dont really care about the automatic stay.

Generally, the Debtor/Filer cannot simply get a Ch 7 case Dismissed. The Court can Dismiss the Case or push forward, but the Debtor/Filer can't simply call it quits and back out.

You can not pay your Plan payments, if forced to convert to Ch 13, and your Plan will be Dismissed. But there again, you run the risk of being Dismissed With Prejudice.

[hearr]

Come on, if your income is over the Median, that is a no brainer....OF COURSE there is going to be a presumption of abuse. There is no allowance for expenses related to real estate that is not your primary residence. (if you did some more homework on BK before you filed, you would have discovered this fact).

I am sorry for the mess that your in, and unfortunately, I don't really have any good suggestion about how you can get out of it except to see if an attorney would be wiling to jump in and see if he can clean it up (keep in mind, most attorney's won't get involved in cases that have already been filed.).

I'm just a little confused about something here. I'm not sure what the median allowed income is here in Texas, but I thought they also had to take into consideration disposable income after allowed dedustions. For example my means test calculation at the very end (line 48) shows a current monthly income of $4307, but then deductions have been subtracted from that of $4866 leaving a negative monthly disposable income of -$560 & a negative 60 month disposable of -$33,545. FYI: It is just myself & wife.
Our 341 meeting was yesterday, so we have no idea what will happen next related to objections, presumption of abuse decision, etc. We're worried about the latter because the US Trustee had asked for 8 months of pay stubs & bank statements prior to the meeting. Our attorney told us this usually has to do with an investigation related to "presumption of abuse." He said that our case may or may not be subject to that because my income is higher that most he handles which opens us up for scrutiny by the US Trustee. Although the BK Trustee at yesterday's 341 meeting didn't bring this up & stated at the end of the meeting he had no objections, our attorney indicated that didn't mean anything since that is a canned/scripted statement & there are (2) separate trustees. Almost seems like one trustee doesn't know what the other is doing..This worries us.

Ken

[freshstart06]

in your case they may want to see why are you so negative. We are over the median but were advised not to be so negative as well especially since you are over the median, this will cause red flags as well. They like to see something that makes sense to them (yeah, I know, that is not fair) My trustee has at $20 disposable income even though realistically we were in the negative as well. If you have higher income then they are going to question where is your money going, are you living above your means to be so negative. Now if you have other "extra" expense ie, medical, high child care, continueous care for a family member, job expense then that could explain it. I am surprise your Lawyer allowed you guys to submit the paper work so negative. They asked for more paystubs and bankstatements because they want to figure out where the problem is, did you purchase a luxory car with high payments, is your mortgage or rent very high??? You have to understand there are people well under the median with tons of kids and not that negative. My cousin was told by her trustee to adjust her paperwork to show $0 disposable income instead of negative and after she did that she discharged and closed with no problems.

Believe me, I understand how you can be that negative but the US trustees act like they don't.

[hearr]

in your case they may want to see why are you so negative. We are over the median but were advised not to be so negative as well especially since you are over the median, this will cause red flags as well. They like to see something that makes sense to them (yeah, I know, that is not fair) My trustee has at 20 disposable income even though it is much less we were in the negative as well. If you have higher income then they are going to question where is your money going, are you living about your means to be so negative. Now if you have other "extra" expense ie, medical, high child care, continueous care for a family member, job expense then that could explain it. I am surprise your Lawyer allowed you guys to submit the paper work so negative. They asked for more paystubs and bankstatements because they want to figure out where the problem is, did you purchase a luxory car with high payments, is your mortgage or rent very high??? You have to understand there are people well under the median with tons of kids and not that negative.

Believe me, I understand how you can be that negative but the US trustees act like they don't.

Well, our case is somewhat different. This filing is my wife alone & involves credit card debt which was strictly in her name. She lost her job some time ago & just got behind. Although the bankruptcy is in her name alone, they still have to take into consideration household income which would be my income. I have debts myself which are strictly in my name. Although I wasn't able to count my credit card debts in the means test, the end result still showed negative because we were able to count both car notes & our mortgage which again are strictly in my name.

Ken