Trustee's motion to dismiss for substantial abuse

[Tired]

Hello fellow debtors,

I filed a Chapter 7 without an attorney in March, 2005 in California Central District BK court. I have approximately 25K in credit card debt and a 3K balance on my 1999 Chevy van.

I don't own a home, 401K or any non-exempt property. Just my van which I need for work and I am current on it.

My income is 3900.00 per month with expenses of 4100.00 per month.

Two days prior to the 341 meeting the trustees office requested my last years tax return and three months paystubs. I attended the 341 meeting and gave the trustee the requested information.

Last week I received a motion to dismiss my case due to "substantial abuse" claiming that I make significant overtime and that my van will be paid off in 8 more payments freeing up 322.00 per month.

I work as a W2 contract employee of a technical services company. My current contract will end in February 2006 or sooner if the customer wishes. I am paid straight time hours (no time and a half). No paid sick, holiday, vacation or personal time. In the first three months of the year I was required to work additional hours and will probably not be required to do so again. If you subtract the hours that I am not paid for it matches my reported monthly income, not the 52 forty hour weeks plus extra hours calculated by the trustees office.

My work has been unstable. In the last five years, I have been laid off due to budget cuts five times and out of work for a total of one year. I want to change careers to something more stable but I will have to take a fify percent pay cut.

My van has 188,000 miles on it and is going to need several thousand dollars of repairs to be able to drive it for the next few years.

I am also without medical or dental insurance although I would like to purchase some. (Kaiser medical would be 295.00) per month.

I have read some court opinions that were somewhat similar where the motion to dismiss was sustained and the debtor was given the option to convert to chapter 13.

I have an appointment with an attorney early next week as I don't feel that I can respond properly to the trustee.

I would apreciate any advise or similar experiences anyone may have had.

[mymymy]

Hi Tired.. So sorry to hear of the trustees motion to dismiss. I can't help you with the response you should send but, I'm very curious about something. I have a feeling the trustee was curious, too.

If you own no property and therefore have no maint. expenses, do not pay for health insurance and have nothing but your van.. then what on earth do you spend 4100.00 a month on? I am assuming that you only listed your living expenses on your schedules and not the cc debt, right? I lived in Cali.. I know that rent can be expensive..but generally not more than one weeks pay, if you're living within your means. You mention no family- or paying out child support or anything like that. Could it be that the trustee found your expenditures out of whack? Just a thought.

Good Luck with your attorney next week.. let everyone know how you make out.

[HHM]

Yeah, I share mymymy's assesment. My guess is the main objection is to your expenses. However, the wierd one is the trustee's objection based on the fact that you have almost paid off the van, if it were going to be paid off in 2 months, perhaps, but 8 months, that is an odd objection for the trustee, sounds like he is being too aggressive.

But good luck with your attorney, please check back in after you meet the attorney and keep us informed so we can learn from you experience.

[edwards2]

I was thinking the same thing when I read it. I was struck by the fact you filed in March and just now got the letter from the Trustee. Two months after you filed? Without a house note or the like that may have very well been why the trustee thinks there is BK fraud. I am sure that was not your intention but did you list ALL of your monthly expenses? By your own admission you are only $200 over from your take-home very month. Also, I understand completely about the instability of your work - did you relay that information to your attorney. My husband gets a bonus every year if the company is doing well but it is far from a guarantee and in fact he only got $1000 last year. Sometimes all the trustees see is OT and not the regularity of it. Good idea to see legal help. Defending your case to a trustee warrants hiring an attorney. Good luck...let us know.

[Tired]

The rest of the story....

I consulted with an attorney who told me that he would not be any better at representing me at the hearing than I would and instructed to file a declaration stating the facts in response to the trusteees objections. He told me that the judge would either A) allow my Ch7 petition to continue, B) Dismiss the petition with prejudice (cannot refile for 6 months), Dismiss the case without prejudice (could refile ASAP).

There were no issues regarding my expenses only my income and my van.

In my declaration I stated that my average net income was based upon 47 weeks not 52, due to company holidays, sick, personal time, vacation all of which I am not paid for. The trustee's calculation was based upon 52 forty hour weeks. I supplied my pay statements for the last 12 weeks which show most weeks being less than 40 hours. The extra hours that I was required to work would probably not happen again.

I was nervous about going to court by myself but I trusted the judges decision to be fair and based on the facts.

I was the only debtor present along with an attorney for the trustees office and the court clerks. The judge came in and the attorney for the trustee's office and I both went to a podium. The judge asked the trustees attorney about the declaration and he responded that they always base their motion to dismiss upon the paystubs sumitted at the 341 meeting and that with the additional information that I supplied, that I was unable to complete a CH13 and that they wished to withdraw the motion to dismiss.

The judge then recorded the withdrawal, we both thanked the judge and it was over. Took five minutes.

As we left the courtroom, the trustees attorney told me that they would send the discharge in the mail in about two weeks.

I appreciated the treatment that I received from both the judge and the trustee's attorney as I know that my filing of the declaration was not prepared as an attorney would have. They did not act in a condescending manner either.

As I left the courthouse I couldn't help feeling very relieved but also proud of our legal system and the fact that an individual can represent themselves.

[HHM]

Glad to hear it worked out for you. Congrats.

[HRx]

Excellent news!

[mymymy]

Wonderful news! So glad to hear it.

Times like that do make you feel proud to be an American, don't they?

Again, CONGRATULATIONS on your successful Chapter 7. (Now, don't cha come back no more, no more..LOL.. well.. come here, of course- but no more 341's!)

[zenia]

Hi How do I go to pacer? And does it cost money thank you

[seFlaDude]

This thread is 5 years old!

[nc73]

Strange place to ask this. You must be new to posting. In any case it's pacer.com.. if you spend under 10 dollars a quarter (something like that) it's free. 8 cents per page.

Hi How do I go to pacer? And does it cost money thank you

[GettingGoing]

Strange place to ask this. You must be new to posting. In any case it's pacer.com.. if you spend under 10 dollars a quarter (something like that) it's free. 8 cents per page.

Its actually pacer.gov not pacer.com