Using mortgage to get ch7, but not reaffirming to pass means test per our atty? Help!

[ohwell]

Ok, I am nervous about this...
My DH and I are over the median income for our family. However I am now unemployed since the end of May. We moved in March to a rental before our credit went south.

At our appt yesterday, the atty informed us that he will using our mortgage in our means test calculation, however we are not keeping the home(it began the foreclosure the end of July).

I asked him about this, for I was concerned the US trustee will not go along with this. He told us that he does this alot. I then asked what will happen if the US trustee won't allow this, he said then we wait until we file to not show my income and thin things out for the means test then.

Is anyone familiar with this practice? I find this odd, however he informed me that due to the new laws, they didn't incorporate this in there, so "too bad" re: the system. I guess they bend the rules, or if you have an atty, they can do that.

We have over 90k of unsecured debt, so we have to do a declaration for the trustee(my DH had a second job, lost it and I lost my job due to new baby - can't afford daycare).

I just don't get the logic in this, but the atty wants to do this this way.... and has had success in doing so. I only have played with the legalconsumer website doing the means test, so I am no expert.
Is this what we pay those attorneys for? This law practice has been in the bk business for 25 years, our atty is also a CPA, and they are well known. The atty was confident in the outcome, but I was a little shocked that they can do this re: using the mortgage to pass the means for a Ch7. Don't they ask what our intention is with the property? Won't that look weird cause we already moved? Ugh. I am stressed out over this. I suggested we wait for my "income" to go down, however the atty said we looked better filing now than waiting till December.

Any opinions? Anyone's atty done this type of maneuvering with the figures?

[Beach Bum]

Similar to our situation, except we still live in the house and are current on our payments.
Our income is well above the median, but using the large mortgage payment we passed the means test. If and when we get discharged, we can keep the house or walk away without owing any deficiency.

With the crashing housing market expecting to last for the next few years, we'll probably just let it go, rent for a few years and buy again after it bottoms out.

Our atty also is a CPA, weird. Same one?
PM me his name.

[lrprn]

On the day you file when you create your Ch 7 bankruptcy estate, you do own a house with a mortgage payment - that's why it's ok to include the cost on your Means Test. The same thing is done for cars that you intend to surrender after filing. Nothing "shady" going on here. Enjoy the advantage - there's precious few for consumers like us in the new bk law.

[ohwell]

Ugh, we voluntarily gave one of our cars(they were trying to find us but we moved), dang, we should have kept it another month and included that too?? that was a 700/mo car payment... oh I am so dumb. I should have waited and asked the atty....

I feel alot better now knowing this, I hated the fact that we were going to have to wait another few mos to file and risk new problems(lawsuits, etc) in the meantime. I hope this gets over quick and easy, and for sure glad we hired an atty, I would have screwed this up for sure on our own