341 Hearing part 2 today!

[JRScott]

Sorry to hear Help , I hope it is dismissed without prejudice.

However You might consider writing the your state's bar association as this lawyer seems to have very badly represented you. If I'm not mistaken in most jurisdictions 401ks are exempt . (Maybe not yours though).

If its dismissed without prejudice could you possibly file in 6 months to a year to get below median?

[Help!]

Thanks all... I have been doing more reading and it sounds to me that once the statement of presumed abuse is filed and there is a disagreement about the means test, the only way to solve it is to take it all the way to the judge. I would guess that once the motion to dismiss is filed, 99% of filers will allow dismissal out of fear. I think I'm in that 1%, because I know we have not done anything in bad faith or committed any kind of fraud. Besides, I am not a quitter.

The next step is to file an objection to the motion to dismiss and allow the judge to decide whether or not one-time income such as a relocation bonus constitutes "special circumstances". I think it does, and there are plenty of other courts that have agreed and overruled the motion to dismiss. If it is not overruled, there is no reason why it would be dismissed with prejudice as we have not committed perjury or fraud.

After each of these knock-downs (the first 341 hearing, the statement of presumed abuse, the second 341 hearing) I've posted right away, usually in the middle of a mushroom cloud of emotion. The replies from those who are having a "normal" day (whatever that is in BK) calm me down and bring me back to reality. I hope to get through this and eventually be a person with a lot of "normal" days who can return the favor!

[Yankeegirl]

Help...

While I understand why you want to pursue challenging the Presumption of Abuse, make sure you understand what that will involve and how much $$ it will cost!

While our circumstances were a bit different, we too challenged the UST on Presumption of Abuse. Our attorney and the UST agreed on the facts of the case and asked the judge to rule on two points of law. Our attorney was required to research case law and submit a brief. This alone cost almost $4,000. Then we had to wait for the judge to issue a ruling. That took 6 months!

In the end, the judge ruled in our favor on one issue, and against us on another issue. The result was that we spent a total of $10,000, 1 year of our life, only to have the whole thing dismissed (without prejudice).

While our attorney was upfront with us the entire time, we feel like we wasted alot of time and money for nothing! Now we're back to square one - $10,000 poorer, a Chapter 7 filing on our credit report, and NO discharge.

Just make sure you're prepared for the worst case scenario. I know your attorney does not seem very competent, so unless you think you have a slam dunk, you may not be any better off fighting it, just to waste money and be right back where you are now.

[Help!]

Help...

While I understand why you want to pursue challenging the Presumption of Abuse, make sure you understand what that will involve and how much $$ it will cost!

While our circumstances were a bit different, we too challenged the UST on Presumption of Abuse. Our attorney and the UST agreed on the facts of the case and asked the judge to rule on two points of law. Our attorney was required to research case law and submit a brief. This alone cost almost $4,000. Then we had to wait for the judge to issue a ruling. That took 6 months!

In the end, the judge ruled in our favor on one issue, and against us on another issue. The result was that we spent a total of $10,000, 1 year of our life, only to have the whole thing dismissed (without prejudice).

While our attorney was upfront with us the entire time, we feel like we wasted alot of time and money for nothing! Now we're back to square one - $10,000 poorer, a Chapter 7 filing on our credit report, and NO discharge.

Just make sure you're prepared for the worst case scenario. I know your attorney does not seem very competent, so unless you think you have a slam dunk, you may not be any better off fighting it, just to waste money and be right back where you are now.

[sivuh5]

Help, Sorry to hear things have gone so poorly for you. I lurk here often as I wait for the "right" time to file Ch7, and have followed your story. May I suggest someone else for some very excellent advice? On CreditBoards.com there is a Bankruptcy Forum (I know many others who post here have posted there as well), and there is a woman named "SaveManatees" who clearly worked at one time within the BK courts, although I don't know in what capacity. She does extensive research on prior case law and has outstanding knowledge of BK procedure. If you decide to continue your current case, perhaps a post over there asking her opinion/advice would be helpful.

Regardless, all the best to you and your family. I sincerely hope it works out for you.

[Help!]

Help, Sorry to hear things have gone so poorly for you. I lurk here often as I wait for the "right" time to file Ch7, and have followed your story. May I suggest someone else for some very excellent advice? On CreditBoards.com there is a Bankruptcy Forum (I know many others who post here have posted there as well), and there is a woman named "SaveManatees" who clearly worked at one time within the BK courts, although I don't know in what capacity. She does extensive research on prior case law and has outstanding knowledge of BK procedure. If you decide to continue your current case, perhaps a post over there asking her opinion/advice would be helpful.

Regardless, all the best to you and your family. I sincerely hope it works out for you.

Yes, I'm absolutely open to any suggestions at this point! Thank you for your reply and I'll definitely look into this if we move forward. Good luck w/ your future filing - you will be so much better prepared than we were.

[diviaruba]

Unfortunately, I think you're grasping at straws here. No attorney will take on objections pro bono - your fee schedule likely has an hourly rate for any adversarial proceedings. In spite of any incompetence, you'll not get an admission of same by threatening sanctions under 707(B)(4). This provision of BAPCPA was really directed towards inaccurate, incomplete or frivolous filings.

Unless a debtor's bankruptcy case is plainly not permitted under the jurisdiction's interpretation of the "bad faith" and "totality of the circumstances" tests, an attorney should not be required to anticipate the various arguments parties might put forth in post-petition challenges to the debtor's motivation in seeking bankruptcy relief.

Probably not the answer you want to hear, but you need to be aware of the challenges ahead of you.

[JRScott]

Here's hoping the judge sides with you