UST Motion to Dismiss

[deafbroke]

If your attorney won't fight the decision by the trustee then I would go with chapter 13. That will keep the creditors from doing anything, and then maybe your attorney can drag it out so that when the final decision of the chapter 13 filing comes up you'll only be a couple months from being able to convert it to chapter 7.Bring this up with your attorney.
If you dismiss and have to wait 180 days then make sure you have no money in your checking and savings account as they will go after it.

DB

[HHM]

On the UST's Motion for Dismissal, he states, "...Gross pay for calendar months July through December", and he includes the stock-based compensation. The word "pay" is incorrectly used by the UST in his Motion. The intent of the means test is to calculate average income which is indicative of future income. In my case, his assessment of my average income is flawed because it is NOT INDICATIVE of future income. That alone needs to be corrected and could make the Motion invalid.

In the end, the UST states as reason for his Motion, "...after correcting these errors, Debtors' monthly disposable is income $2,574.12." This is irresponsible of the UST to state that my income is over $3,500 more than actual and disposable income is over $2,500. Plus, he has made errors throughout his Motion that I plan to defend. It will cost me more money, but I won't be pushed around.

Unfortunately, the trustees position is both legally and technically correct...sorry to say. This is one of those areas that is flawed with the new BK law...judges have very little discretion.

I suppose, the options issue begs the question...what did you really do with the money...it looks like we are not talking about an insignificant amount.

[getouttadebt]

I suppose, the options issue begs the question...what did you really do with the money...it looks like we are not talking about an insignificant amount.

Well, let's see now...it was taxed at 38% for starters. Then, it went directly into my checking account for the benefit of creditors -- both secured and unsecured. Nothing special here HHM -- no trips, no diamonds, nothing but paying expenses. It wasn't $100k or anything like that -- try $11k after taxes. If you are running on a deficit of $3.5k per month, I would guess 3 months down the road and that money is gone (but I am not a math major).

I have to admit that I take a little offense to your accusation of "what did you really do with the money" -- kind of insulting, but just my .02 cents

[biotechsolution]

I don't believe you would have to wait 180 days to refile.
Usually you have to wait if you violated the court somehow..your filing was considered abusive (you may have to argue this point) or if you dismissed your case after a creditor filed for relief of the automatic stay.

I know of many instantances where people have dismissed a chapter 13 and turned around in days or weeks and filed a chapter 7.

[FreshLikeADaisy]

Getouttadebt, I agree with your decision to fight the Motion given everything you've said. You may or may not win, but at the very least you will get to put your position on the record.

That said, my first thought was what Sharksfan and others have suggested: IF necessary, convert to a 13 for the next six months (which will keep the automatic stay in place and prevent any creditor suits) and then reconvert to a 7 when you will be in a much better position to do so. If you allow the trustee to dismiss and wait six months outside bk to refile Ch7, there is no automatic stay and you are not protected from creditor suits.

As far as a creditor suit goes, it's not the judgement that matters, it's the subsequent garnishments, seizures and levies that can mess up your weekend. If you feel like you can wait it out for six months, maybe dismissal is an option for you if you don't get sued for at least three months after you dismiss.

Oh... that statement by HHM wasn't (I thought) directed at you; I got that he was speaking from the court's point of view, as he said, "That begs the question..." He can answer for himself certainly but I didn't get that it was a snide comment, though I can see how it might have been taken that way if you thought it was directed personally. Oh well, just thought I'd throw it in.

Good luck!!!

[FreshLikeADaisy]

I don't believe you would have to wait 180 days to refile.
Usually you have to wait if you violated the court somehow..your filing was considered abusive (you may have to argue this point) or if you dismissed your case after a creditor filed for relief of the automatic stay.

I know of many instantances where people have dismissed a chapter 13 and turned around in days or weeks and filed a chapter 7.

Biotechsolution, just fyi, in a Chapter 7 when you get dismissed without prejudice it is generally 180 days before you can refile Ch7. How this works with 13s or a mix of the two I don't know, but Ch7 dismissal to new Ch7, 180 days. Hope this helps.

[getouttadebt]

Thanks, Daisy -- Good to hear from you again!

Just got back from my attorney's offfice and we are going to fight this -- he thinks the UST will fold. Our case is compelling in that we have 4 full months of documented income after the 6-month look back period that proves my "actual income" is as stated in the petition. Also, under 707(b)(2)(B), debtors can rebut a means-test presumption based on inaccurately high "current monthly income" by showing their actual monthly income during the bankruptcy case; judges assessing actual debtpaying ability under 707(b)(3) should likewise begin with an assessment of the debtor's actual total income.

That said, we are fighting it and it will cost me extra money to do so -- but the attorney told me if we lose the argument, then we will refile immediately and his fee will be waived. He says based on the Motion, we can refile immediately if it is dismissed --will not need to wait 180 days. Since the Hearing is scheduled for May 20th, part of his argument will be that if they still move to dismiss, then we will refile in 11 days on June 1st, and what a waste of the Court's time and resources since we will pass the means test as we did with the current petition. Further, he knows this UST rather well and said he is actually very fair -- and he is also very familiar with the BK judge assigned to my case and he is also very fair.

So that is the update for now....more to come on this topic in about 3-4 weeks.

getouttadebt