Interesting tidbit my lawyer told me.....

[deadbroke99]

She said even if you don't pass the means test that doesn't mean you can't qualify for a chapter 7. She said there is a little known rule called special circumstances. You would plead your case in front of a judge or I mean the lawyer would for you. She said that in our case, my dh overtime has gone plus 24 hours a month in base pay. She said that would qualify under special circumstances if we did not pass the means test. We have to finish paying her so I think our income will go down enough to qualify in the next few months but just in case for those of you out there needing to know this might help you.

[Trixie007]

I think this must really depend on your area and how they do things there. For us, our attorney said that we don't have to count DD's income from her PT job, as she does not contribute to the household. He also said that DH's reimbursement for moving expenses will not count against us as income. That's why I think it's really important to have an attorney who is experienced and familiar with the trustee's so they can guide you. Now I just hope he is correct!

[deadbroke99]

She said it's in the bankruptcy codes but many lawyers are too lazy to go the extra mile.

[deadbroke99]

She did tell me my tax refund does not count in this area but she said some districts it does and my tuition reimbursement will not count as it's was to offset another expense that it was not additional income. Whew!

[keepmine]

We've had many here who were over the median and successfully discharged Chapter 7. The means test is only half the battle. The other is, fillingout schedules I and J and seeing if you have disposable income to fund a Chapter 13.
This is why we recommend second and third opinions if a lawyer pushes a 13 right off the bat. The means test is a long way from the end of the road.

[TEW]

I was over median and had $142 disposable income. I think it would be a good idea to speak to a couple of attorneys before you pay this one. This one sounds like he plans a totality case for you. Waiting for the best time to file maybe better for you.

[Help!]

I was over median and had $142 disposable income. I think it would be a good idea to speak to a couple of attorneys before you pay this one. This one sounds like he plans a totality case for you. Waiting for the best time to file maybe better for you.

I second this. Did the attorney tell you what her hourly rate would be when she prepares that brief and argues special circumstances to the judge? It's not as simple as this attorney is making it sound.

If you don't pass the means test, here's what happens: (1) the UST files a statement of presumed abuse (as is required when the debtor does not pass the means test), (2) you are asked to provide financial records for at least 12 months (or more - ask Jessegirl how much fun that is), (3) the UST attorney will sift through those records and ferret out every single thing that makes you uncomfortable, (4) if you don't successfully defend the UST's questions the UST will file a motion to dismiss or convert.

It is an absolute nightmare to be put through the "presumed abuse" wringer. I know of only one case in this forum where a BK attorney argued totality of circumstances to rebut presumed abuse, and the UST won. The case was dismissed without the discharge of any debt and the debtor could do nothing to reverse the 10 year hit they took on their credit report (the least of their worries). The debtor paid for that litigation per hour in addition to the standard Ch. 7 fees.

I sat in the courtroom and watched several BK attorneys (including my own) sit across the table and cower like frightened little puppies as the UST attorney questioned their clients. The UST attorneys are the best of the best, and the typical BK attorney is no match.

If you have any ability to postpone filing until you're below the median or pass the means test with flying colors, this is in your best interest. You don't want to go the presumed abuse route.

[Help!]

Sorry - that sounded really negative. I went on a little bit of a rant, but it infuriates me that these clown attorneys pat people on the head and tell them not to worry when their entire future is at stake. deadbroke99, please talk to a few more attorneys. Maybe one out of five won't be completely incompetent and useless. Grrrr.

[welovedis]

I was over median and had $142 disposable income. I think it would be a good idea to speak to a couple of attorneys before you pay this one. This one sounds like he plans a totality case for you. Waiting for the best time to file maybe better for you.

We were over the median, disposable income of $199 mth and we are basically being pushed into a CH 13. Our case was different with a hard a**ed UST on the case from the beginning. I think sometimes it is the luck of the draw of where you live, etc.. And out $199 mth includes OT that DH no longer makes.

Oh, how I wish I had found this site before we filed.

[inpain66]

We were over the median, disposable income of $199 mth and we are basically being pushed into a CH 13. Our case was different with a hard a**ed UST on the case from the beginning. I think sometimes it is the luck of the draw of where you live, etc.. And out $199 mth includes OT that DH no longer makes.

Oh, how I wish I had found this site before we filed.

I cannot believe they are making you convert when you only have such a small amount left over to live on. This country is sick!

[TEW]

We were over the median, disposable income of $199 mth and we are basically being pushed into a CH 13. Our case was different with a hard a**ed UST on the case from the beginning. I think sometimes it is the luck of the draw of where you live, etc.. And out $199 mth includes OT that DH no longer makes.

Oh, how I wish I had found this site before we filed.

Well I have/had a great lawyer and this site.

[HHM]

"Special Circumstances" are by no means a slam dunk, but yes, you can plead special circumstances. Ultimately, you can "file" a chapter 7, and see if the UST objects.

[deadbroke99]

"Special Circumstances" are by no means a slam dunk, but yes, you can plead special circumstances. Ultimately, you can "file" a chapter 7, and see if the UST objects.

Oh I am not taking any chances. I am going to wait till my income falls low enough. Thank you all for your great advice!

[BnkrptcyLwyr]

We were over the median, disposable income of $199 mth and we are basically being pushed into a CH 13. Our case was different with a hard a**ed UST on the case from the beginning. I think sometimes it is the luck of the draw of where you live, etc.. And out $199 mth includes OT that DH no longer makes.

Oh, how I wish I had found this site before we filed.

That's a shame. Seems like the attorney could've nickled and dimed you down to near zero disposable income.

Ok folks ... if disposable income is not below $110, then there is going to be potential problems, and you have to realize that.

Furthermore, if your attorney is padding your expenses, and you are STILL showing disposable income over $110 ... then really, you shouldn't be surprised at a challenge from the UST. And you also shouldn't be blaming the attorney necessarily (you may just need to realize that you very well could end up in a Ch 13 at the end of the day).

Now, that said, if you want to win a chapter 7 motion to dismiss ... then BE PREPARED. Get receipts, know exactly how much you spend, get proof. I've had only one client get challenged so far ... and I had my client get proof of every expense and I sent it all to the UST ... and after we provided all the documentation, the UST withdrew their motion.

Furthermore, if you're in the ballpark like WeLoveDis is, then you may want to look at 401k contributions. What? But you can't deduct 401k contributions? Not necessarily true - and there are good reasons for including 401k contributions where you're close to the fence.

In the motion to dismiss, did you argue that you need about $85/month just for attorney's fees in a typical Ch 13 case (I have actually listed attorney's fees on Sch J just to show that if the UST wants to argue that my client is abusing Ch 7, he better know what the real cost in a Ch 13 is?

Did you deduct bank and atm fees on Sch J? Pet food and vet care? Storage fees? School lunches? Extracurricular activities for the kids? Continuing education classes? Magazine subscriptions? Professional licensing fees? Personal needs of the husband, wife, and kids? Unreimbursed work expenses? About $25 for emergencies/contingencies? Etc. I have deducted all of the above with no objections.

In short, there are so many ways to work the budget and nickel and dime the budget to death ... it's not to hard to get that extra $100-200 out of budget. I have nickled and dimed almost $250 out of my clients budget ON AVERAGE ... often, with not a word from the Trustees.

[BnkrptcyLwyr]

Oh I am not taking any chances. I am going to wait till my income falls low enough. Thank you all for your great advice!

And it is usually worth the wait. I do (nearly) all our Ch 13 cases now and I have clients wait all the time just to save $100 on their payments (and sometimes it works out to far more).

Some attorneys want to "file, file, file" ... just to get you in the door and paying ... but I would rather wait, get it right (and then watch as my clients refer others to our firm).