Presumed abuse or no presumed abuse - that is the question

[rfassett]

Hi fellow travelers in this often times mirky environment.
This is my first post and some - or maybe all - of my questions may have already been answered in other posts. If so, please refer me there. Here is a quick and dirty background sketch. After spending the last 3 to 4 years staying just one step ahead of the bill collects, 2007 saw a nearly 30% reduction in income. By October, we (wife and I) had done all that we could do and over coffee one night, decided that bankruptcy may be the saving grace. After some very quick research and information compiling, we filed on November 2nd, pro se. Prior to the 341 meeting, we were contacted by the US Trustee twice. Once requesting information comprising about 5 pounds of paper. And once to inquire about our use of an internet service to prepare the petition. We gave them everything they asked for with a copy going to the bankruptcy trustee. (I even offered to give them my sign in information for the internet provider, if they wanted it - they never asked.) I knew which case was ours at the 341 meeting simply by the stack of paper the trustee had. And accordingly, the trustee saved us for last. I was a basket case by then. I mean clearly we had nothing to hide - just look at the stack of papers . 341 meeting took place on December 11th, and on December 21st, the US Trustee posts on pacer that the debtors' case should be presumed to be an abuse under ..... On December 26th the creditors are notified of the US Trustee's decision. We do nothing but sit and wait because we do not fall under any of the special circumstances in 11 U.S.C Sec .707(b)(2)(B). On January 22nd, the US Trustee posts to pacer "documents initially submitted by the debtor indicated that a presumption of abuse under Section 11 U.S.C. 707(b)(2) had arisen in connection with the case. Notice is hereby given that the United States Trustee, after reviewing all matierials filed by the debtor, has filed a statement with the court indicating that no presumption of abuse has arisen under Section 11 U.S.C. 707 (b)(2). Filed by the Office of the United States Trustee." (Just for the record, I don't believe I indicated "presumption of abuse" on the originally filed papers - but if this thing flies, I will let them say anything they want to say.) Does this mean I am out of the woods?

I know this was long-winded - and if you are still with me, whatta ya think?

Thanks in advance for your help.

[FreshLikeADaisy]

Rfassett, I think it's very good news. I'm no attorney, but I suspect what may have happened is that they misread or misinterpreted something that was given to them (we all make mistakes, you know?) and then, as they were preparing to pursue dismissal based on presumption of abuse, they caught their own error, or found the answers they were looking for in the big ol' stack of dead trees you gave them. It happens.

And btw, you were wise to copy the bk trustee on everything. In the end, it's the bk trustee that has direct oversight of your case. He will *very likely* allow the U.S. Trustee's findings to stand and not pursue the abuse thing any further. Not 100% guaranteed, nothing is until you are discharged, but if the UST is satisfied he probably is too.

Also, you didn't mention whether you were over the means test when you filed (only that you didn't remember checking the box ), or whether business debts were involved, or whether there were any exceptionally high dollar amounts involved, or whether any questionable transfers of high-dollar assets have taken place, but any one of those can spur getting the U.S. Trustee involved in your case. Just fyi.

But it seems to be working out for you finally! Good luck!!!!

[rfassett]

Well thanks, FreshLikeADaisy! I am hoping that you are correct. Your analysis is similiar to my take on this! To fill in some of the blanks: 1.> Yes we were over the first means test based strictly on income but running through the second part of the means test resulted in a negative disposable income. Reflecting back, I did do a schedule for the US Trustee explaining how we plan to fund that deficit in disposable income - and it had nothing to do with borrowing. But that schedule was done in plenty of time for the noiice of presumed abuse to not be issued. (The US Trustee had the info 13 days before the 341 meeting (3 earlier than requested.) As an aside, the US Trustee asked when my teenage son would be eighteen. That question baffled me and when I answered the question, I asked the US Trustee to explain to me why that info was pertinent but he never responded. Any thoughts? 2.> There were no business debts. 3.> Yes there were higher numbers than any that I heard at the 341 meeting.

Another quick question: Since we filed on November 2nd and since the 341 meeting was held and completed on
December 11th and since the last creditor objection day is February 11th, does that mean that we should be getting our discharge on or about Valentine's Day (assuming no other speed bumps in the road)?

Thanks again!

[FreshLikeADaisy]

Rfassett, that explains a lot, and why the UST was involved. I don't have a whole lot more insight, except to add that the UST's question regarding the majority of your teenage son is most likely financial: when your son turns 18, chances are reasonably good that your expenditures and *legal responsibilities* toward him would change. If there were any large expenses listed involving his education, for instance, and freeing that money up would make assets available for distribution, I can see the UST having an interest in that. That's just a "for instance", but think in terms of specific expenses you listed for your son and other minor children, and/or any income your minor son currently contributes to the household that would likely be removed upon his reaching the age of majority (trust fund income, perhaps, or some asset that belongs to your son as a minor, but produces interest or investment income for your household as long as he lives there, that sort of thing).

Yeah, unless you hear more from the bk trustee, you're set to have a happy valentine! Good luck!!!