Over the Median

[jgordo52]

So I filed on 12-31, Lawyer forwards me final paperwork today and on 22a form it says I have 438 dollars for disposable income, still a chapter 7. Schedule I and J put me at 7.30 disposable income. Obviously the Presumption of abuse arises, someone please calm me down and tell me everything's going to be ok.

[Help!]

You reviewed the final paperwork, signed it, your attorney filed it on 12/31 and it's been assigned a case number?

[Help!]

I'm going to assume the answer to my first reply is "yes". In that case, on the means test is the "The presumption arises" box checked or the "The presumption does not arise" box checked? I'm asking because no matter how large your disposable income, the presumption does not arise unless your 60 month disposable income on the means test is 25% or more of your unsecured debt total. Does this make sense?

[TEW]

So I filed on 12-31, Lawyer forwards me final paperwork today and on 22a form it says I have 438 dollars for disposable income, still a chapter 7. Schedule I and J put me at 7.30 disposable income. Obviously the Presumption of abuse arises, someone please calm me down and tell me everything's going to be ok.

Ok clam down did you sign and file and you did not understand?
7.30 is a $135.00 better them mine

[justbroke]

I'd like to learn more about the presumption of abuse checkbox myself.

[TEW]

I'd like to learn more about the presumption of abuse checkbox myself.

I am betting it is not checked you ?

[Help!]

I should be more specific instead of going from memory... I'm referring to the secondary presumption determination on line 55 of form 22A which can be downloaded from the UST website: http://www.usdoj.gov/ust/eo/bapcpa/meanstesting.htm

OP, it's the 60 month disposable income that's used in the calculation and not the monthly. Assuming $438 is your monthly disposable income (is that correct?), your 60 month disposable income would be $26,280. If your unsecured debt total is more than $105,120 the presumption does not arise. If it's less than that, the presumption does arise and you would have been better advised to delay filing if your income recently went down.

[jgordo52]

Presumption of abuse does not arise on the first page of 22A is checked on the box, but how can that be? I'm now thinking that my lawyer is an idiot and trying to get me into a CH.13 and I'm in for a fight in order to still file Ch.7. The way that they did it was they sent out a petition with no real numbers on it, just what they saw when we visited the first time. I sent it back to them with 6 months of pay stubs, statements and all the other crap they listed and filed electronically as I had already signed the signature pages when I got the first petition. They then sent me a copy of the final petition in PDF format. There are some things in the means test I know that are over the IRS standards and they didn't put it that way. I've got an email into my attorney currently, actually about 5 because I was freaking out yesterday. I'm hoping they'll amend it or use my schedule I and J, cuz that's accurate.

This is stressful.

[jgordo52]

Also why does the current income over the past 6 months differ from Schedule I and form 22A?

[jgordo52]

Alright, so now I'm under the impression my lawyer is trying to F me. We filed on 12/31. I took June out (I got paid 3 times in June), since we filed on 12/31, and put in the two paychecks I received in December and I came out at -51 for Disposable income. Using all the same numbers as her except for the extra 2500 for June. I sent her an email asking to amend the petition for it and to add 75 dollars to my IRS Standards Utilities because of Association Dues that are required at my townhome. If she refuses to do this, what would you guys do? I'm convinced she just wants the extra 1500 for Ch 13 and that's why they didn't do this in the first place. I believe she filed it as a Ch 7 with those numbers knowing damn well I would be forced into a CH 13 and thinking that she could get away with it. I have nothing to hide in this petition, and there is NO way in god's green earth that I have 478 disposable income each month. I'm lucky if I have 100 if I work my butt off.

On the last page of the means test it says that presumption of abuse does arise, then on the first page of the means test where it says that you should check it at the top it says presumption of abuse does not arise. I think that's just an error by her paralegal by checking the wrong box cuz it does arise, but it's definitely got the wrong numbers in it in the first place.

[BKParalegal]

Even after reading through your initial question and people's comments, I am still a bit confused, and HELP!, you misunderstand the 25% rule, it is not carte blanche like you are implying.

To respond to a couple of your statements, if you filed 12/31, then in your means test, you have to include the 6 months income prior to filing, which would be June-Nov., so the 3 paychecks in June, would be included. The Means test allows you to not have a disposable income greater than $182.50 per month, to not be considered a presumption of abuse. If it is above that the 25% of the Unsecured General Liabilities has no bearing on the issue, that rule is only applicable if your disposable is greater than $109.58 and less than $182.50 per month, then the ratio of debt is factored in. Lastly, in reference to why Schedule I and J, and the means test disposable income is different, is based on the fact that income in I is based on what your income is today, the means test is a 6 month average, also, their are more allowable expenses in J, then in the means test.

I know this didn't answer all your questions, and lastly, I doubt your attorney is out to "f" you, no attorney wants to deliberately expose themselves to a potential grievance. What does confuse me is why she/he filed you on 12/31, when waiting 1 more day, would have eliminated the June income.

Good Luck

[jgordo52]

Even after reading through your initial question and people's comments, I am still a bit confused, and HELP!, you misunderstand the 25% rule, it is not carte blanche like you are implying.

To respond to a couple of your statements, if you filed 12/31, then in your means test, you have to include the 6 months income prior to filing, which would be June-Nov., so the 3 paychecks in June, would be included. The Means test allows you to not have a disposable income greater than $182.50 per month, to not be considered a presumption of abuse. If it is above that the 25% of the Unsecured General Liabilities has no bearing on the issue, that rule is only applicable if your disposable is greater than $109.58 and less than $182.50 per month, then the ratio of debt is factored in. Lastly, in reference to why Schedule I and J, and the means test disposable income is different, is based on the fact that income in I is based on what your income is today, the means test is a 6 month average, also, their are more allowable expenses in J, then in the means test.

I know this didn't answer all your questions, and lastly, I doubt your attorney is out to "f" you, no attorney wants to deliberately expose themselves to a potential grievance. What does confuse me is why she/he filed you on 12/31, when waiting 1 more day, would have eliminated the June income.

Good Luck

BK, so my question to you is what is my recourse? She didn't file 1/1 so I gotta go into a CH 13? How do I get the means test lower to get to a 7. I don't have 100 dollars left over let alone the 478 that is calculated into the means test disposable even if I cancel my 401k plan. I just don't know what to do at this point? Does Schedule I/J even factor in at all or am I SOL?

[BKParalegal]

Every form in your BK can be amended. It is hard to comment since I don't know the specifics. Talk with your attorney about the Means Test and have her/him review it with you. If it really boiled down to that you should have waited to file 1 day and you can't fix the means test to work in your favor, look at having your BK dismissed and refile later.

Good Luck

[jgordo52]

Every form in your BK can be amended. It is hard to comment since I don't know the specifics. Talk with your attorney about the Means Test and have her/him review it with you. If it really boiled down to that you should have waited to file 1 day and you can't fix the means test to work in your favor, look at having your BK dismissed and refile later.

Good Luck

Thank you for your comments BK, I knew things were going too well, hopefully we can still make it work but I'll have to talk to my attorney about it all.