Need a more clear answer...

[Allmixedup]

Here is my situation:
We have retained a lawyer to file ch. 7. We plan to surrender our house due to the high cost, and negative equity. Here is my question. When we met with the legal assitant she said we couldn't use our house pmt as an expense if we quit paying for it. So she assumed an appr. amount for rent and used that for our expenses. So I was wondering if we need to move out before we actually file just to show that we are indeed paying that rent amount. I keep reading about all these people lived in their homes for months and saved up. I am just confused on how other people did it...Did they use their mortgage payment as an expense knowing they were surrendering their home or rent? By the way I am in Michigan! I am hoping anyone who went through this can give me some insight! Thanks

[StartingOver08]

I filed Ch 7 and received a discharge. I also surrendered my house. I am still in my house waiting for the final sale date before I move.

Yes, the paralegal is right, if you are no longer making your mortgage payment, you can not use the mortgage payment amount in your petition - SOMETIMES. I understand that this is a district issue. If you (and I) had made payments until the filing date, then the mtg payment could be used. Your paralegal should have used the IRS local standards for rental housing if she could not use your actual mortgage payment.

This is a very good article on which factors can be used in the means test:

http://www.alperlaw.com/new_bankruptcy_law.html

[Allmixedup]

Sorry...Still confused...

Thanks Starting over for responding. Well in my situation I am 45 days past due. I will not be able to get that caught up before I file, nor would I have the money to pay the lawyer even if I could. I guess my biggest confusion is do I need to be out of this house before I file? That is the part that I am not getting. I see you said that you are still in your home? I am just not sure if I would be able to do that if I state that I am paying rent??????

[StartingOver08]

No you do not need to move before you file.

You do not state in the petition you are paying rent, the allowed figure on your petition is the local IRS standard for rent for a household your size.

You have plenty of time to move.....long after you file and are discharged from your Ch 7.

[relief13035]

Stay in the house payment free for as long as you can!

[Allmixedup]

I want to stay in the house as long as I can...It's just that the legal assistant made it seem like we are waiting to file so that we can have more time and get a rental right before we file...that is why I was confused. i think I will just bombard them with more questions

[StartingOver08]

Ask the attorney if the Trustee is going to make you move out within 30 days of the 341. I had a friend of mine file with a different attorney in our district. Her BK file date was a month after mine and her Trustee made her move out of her house within 30 days of the 341. Mine did not. Her attorney did not go to the 341, but sent a newbie jr type attorney - so I "assume" that the Trustee just did that to push around the new attorney. My Trustee never even brought the subject up. So check with your attorney, maybe it is different in your district. I know that as of right now I have been in my house 12 months without payment and will be here until at least June or July according to my attorney. (My house was surrendered in the BK). Maybe the paralegal is alluding to the Trustee having you move???? It's worth clarifying.

[fyrace]

In Florida Middle District if you are filing C7 and planning on surrendering your home you can still keep the payment for means testing. They look at payments contractually due in the next 60 days, not whether or not you are paying them or going to pay them. Now the expenses are different.

[AfraidOfBK]

Does anyone know how it works in Nevada? I am living in my home without paying (3 months past due, got NOD) and I will be filing in July. I am hoping foreclosure will not be finished by hten, and Ill worry about moving after.

BUT - If I cannot include it as an expense, can I make up for the expenses elsewhere? Also, how do I find the forms for expenses that the attorney will have me fill out?