The dreaded UST's Statement of Presumed Abuse

[getouttadebt]

So I did a search before starting this new thread so as not to bring up old news...but I didn't find exactly what I was looking for, so here it goes...

My 341 was on 3/5/08 and it went fine. There was previously a presumption of no abuse on my case. Now PACER shows Statement of Presumed Abuse. More specifically, here's what the filing says...

...a Statement of Presumed Abuse Pursuant to 11 USC 704(b)(1)(A) was filed in this case by the UST. The Statement indicates that the UST has reviewed all materials filed by the debtor(s) and has determined that the debtor's case should be presumed to be an abuse under 11 USC 707(b)

I called my attorney, but no return call yet. I am freaking out a little. Could this be triggered because my income is over the median for CA?

Thanks for any answers...

getouttadebt

[SUB]

Kinda looks like someone's pushing for a 13

[aachudneymiles]

So I did a search before starting this new thread so as not to bring up old news...but I didn't find exactly what I was looking for, so here it goes...

My 341 was on 3/5/08 and it went fine. There was previously a presumption on no abuse on my case. Now PACER shows Statement of Presumed Abuse. More specifically, here's what the filing says...

...a Statement of Presumed Abuse Pursuant to 11 USC 704(b)(1)(A) was filed in this case by the UST. The Statement indicates that the UST has reviewed all materials filed by the debtor(s) and has determined that the debtor's case should be presumed to be an abuse under 11 USC 707(b)

I called my attorney, but no return call yet. I am freaking out a little. Could this be triggered because my income is over the median for CA?

Thanks for any answers...

getouttadebt

calm down wait for att to call back

[biotechsolution]

yes..your income is above the mean and the trustee must not be agreeing to your all your expenses. your attorney will have to go back and forth or you'll have to have the judge decide if your expenses are okay.

[pa308]

Will receipts be needed for the expenses? Arent they an estimate?

[rfassett]

I would refer you to my posts about my case. You are just getting out of the starting blocks from the emotional roller coaster that we have been on. We had the same statement followed by a reversal followed by an extension of time to object followed by a Rule 2004 examination followed by the period we are in now - awaiting discharge. I believe we have satisfied all of their questions. Check my prior posts about my case and the helpful comments and suggestions posted in response to my posts. Good luck!

[getouttadebt]

Thanks, rfassett....will do!

getouttadebt

[gophermn]

Good luck - and get the ATTNY on the phone - Thats their job!

[FreshLikeADaisy]

Getouttadebt, man, that blows. But you're savvy enough to be able to know what's going on, and your atty should be able to give you an idea of what the problem is. Keep on the atty, and make sure he gets an explanation from the UST, in addition to filing any objection / rebuttal / proof appropriate to the actual problem. In other words, don't let him pat you on the head and tell you everything's fine but give you no real answers. This is where all your studying and learning are going to pay off for you. I have to second Rfasset's suggestion that you look through his posts; they are incredibly detailed and informative about all he had to go through in a similar situation. But take heart: he got through it successfully, and pro se at that! I wish you all the best.

[getouttadebt]

Thanks Daisy. In my case, I knew there was a problem being over the median income, but we did pass the second means test here in CA. I am not sure, but I think this happened because of my 2007 income. In the end, I don't have much other than a lot of debt. So, Ch. 7 No Asset was a perfect situation -- and all was progressing nicely until this bump in the road. I am sure I will be posting in the future to let everyone know where things stand.

Thanks,
getouttadebt

[HHM]

Yes, please keep us informed. But as others have said, the US trustee is probably squawking over your income and the expenses you are claiming.

[getouttadebt]

HHM, appreciate your insight here. I have read many of your posts, and I know you have a ton of knowledge which is why you are a moderator, I assume. Follow up question -- I do participate in my company's 401(k) program and I have about $1200 per month Pre-Tax deducted from my payroll. This is just what it is -- retirement savings account and I am only 41. But because it is "voluntary" do you think this could cause a problem? It's really not an expense though since it is Pre-Tax and comes right out of my payroll. Thanks for any insight.

getouttdebt

[SUB]

Several posts/threads here on the 401k. They are protected.

[getouttadebt]

Yeah, I know the 401k money is protected, but my question was more like this -- can the UST look at ongoing deductions as money he could claim for the creditors? Since participation in my 401k is "voluntary" -- could they force me to withdraw from the plan and then show money left over to force me into Ch 13? I am quite sure they can't touch the funds already sitting in the 401k plan, but a portion of my payroll goes direct to 401k each pay period.

Anyone have any other input on this?

Thanks,
getouttadebt

[SUB]

Since participation in my 401k is "voluntary" -- could they force me to withdraw from the plan and then show money left over to force me into Ch 13?

An interesting question. Since I make a contribution and am planning to file later this year I looked it up.

From 2004, don't know if it's old law or new. But I bet it wont matter.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=04a0053p

In a nutshell the court found the contribution to be "disposable". Unless you are "near the age of retirement and has no other retirement savings plan".