Motion to Dismiss

[ffj2002]

New to the forum. Filed Chapter 7 back in September. Paid an attorney, everything seemed fine. Received a letter to dismiss today:

Reasons

1. Debtor's liabilities appear to be primarily consumer debts.
2. No sudden illnes, disability, or unemployment which constitutes a sudden filing.
3. BA has no reason to believe that schedules are accurate
4. Schedules d and f incurred debt beyond debtor's ability to pay
5. Schedules I and J indicate income is insufficient to fund payments to ch 13, however some appear to be unreasonable or excessive.
6. Debtors have regular monthly income.

Pre-trial hearing scheduled.

We are one catastrophe or child, lol, from being totally destroyed. Our application was accurate and the lawyer even reduced a lot of our expenses not to raise red flags. Those expenses were right out of the check book, not inflated or anything. We are truly between a rock and a hard place. I have two jobs, wife has one, two kids.

Is this the new law rearing its ugly head or am I just lucky??

Any help and if anyone could explain what they are talking about would be greatful..

[StaciMM]

Post your income & expenses, and more about your situation and we'll give feedback. It never hurts to hear other viewpoints.

Also, are your housing, utility, etc. figures average for your county/state?

[chucko]

Oh man that's not good news. That sounds almost exactly like my situation. My lawyer never mentioned anything about this being a problem.

I have a stable job with regular income. My expenses are within $10 of my monthly take home pay.

99% of my debt is consumer debt (credit cards right?)

I have no sudden illness or disability

My schedules are correct, no idea why anyone would say they aren't.

My lawyer is confident I will cruise through this except for my Roth IRA being a little roadblock. My lawyer is filing us tomorrow. Guess I'll have to wait and see.

You had no indication of this at the 341 meeting?

[nodinero]

What's your income, is it too high? How about mortgage rent? I am concerned I'll get a motion to dismiss based on our family income and the house that we live in (300K+ short sold to my mother for Fair Market Value now we lease it back from her). Rent is $2000K per month. We're concerned that the Trustee will laugh us out of town!

[hhou812hh]

New to the forum. Filed Chapter 7 back in September. Paid an attorney, everything seemed fine. Received a letter to dismiss today:

Reasons

1. Debtor's liabilities appear to be primarily consumer debts.
2. No sudden illnes, disability, or unemployment which constitutes a sudden filing.
3. BA has no reason to believe that schedules are accurate
4. Schedules d and f incurred debt beyond debtor's ability to pay
5. Schedules I and J indicate income is insufficient to fund payments to ch 13, however some appear to be unreasonable or excessive.
6. Debtors have regular monthly income.

Pre-trial hearing scheduled.

We are one catastrophe or child, lol, from being totally destroyed. Our application was accurate and the lawyer even reduced a lot of our expenses not to raise red flags. Those expenses were right out of the check book, not inflated or anything. We are truly between a rock and a hard place. I have two jobs, wife has one, two kids.

Is this the new law rearing its ugly head or am I just lucky??

Any help and if anyone could explain what they are talking about would be greatful..

Lines 1 & 2 shouldn't really matter. You said 3 is accurate. As for 4 was this debt incurred recently? If it was done in the last several months then the US Trustee probably feels that you are filing just to beat the deadline. Maybe you can work on line 5 a little and file a motion to convert to a ch13. They usually only do this if you have too much disposable income or made "large" charges/advances in recent months. That would be a "bad faith" filing.

Keep us posted. Good luck!

[newday]

what were the details of your case? How much debt and income?

[hhou812hh]

There's a pretty good means test floating around this forum. Try using it to get an idea if your expenses are in line with your region. Even though you are telling the truth of your actual expenses the trustee may feel that your lifestyle is too lavish with all the debt you incurred.

http://www.bcande.com/servlet/Means22

[samwaters]

Please post some details... thanks.

-Sam

[Minnymouth]

What is your lawyer saying.....
There are many reasons "why" they would file for a dismissal......
Your lawyer didn't question "anything" when you filled out and signed your paper work???

Tell us more details.......

Minny

[accentone]

Please give us details!! Income, expenses, etc. What state are you in? Reading this one makes me shaky all over again.

[ffj2002]

I'll work on the other questions after work today, but here is what my attorney wrote me about the motion to dismiss.


That said, you either have or will soon receive notice that the Bankruptcy Administrator's Office has filed a motion under 707(b). The essential purpose is to try to get you to convert to a Chapter 13. We will need to meet to discuss this. I will and do strongly encourage that you meet with the Chapter 13 interviewer. When/why/and how you drew this straw is hard to know. We can speculate on some theories, but will do best to meet next week to get into more detail. This is something that must be dealt with, but is not anything that cannot be handled.

[Minnymouth]

Evidently the trustee and US trustee feel that a Chapter 13 is warranted in your case. They feel that you have "disposable income" that can be paid to the creditors...
That is what the hearing is about - is to decided if you stay in Chapter 7 and trustee is going to force you into a chapter 13.

Keep us posted.

Minny

[hhou812hh]

I'll work on the other questions after work today, but here is what my attorney wrote me about the motion to dismiss.


That said, you either have or will soon receive notice that the Bankruptcy Administrator's Office has filed a motion under 707(b). The essential purpose is to try to get you to convert to a Chapter 13. We will need to meet to discuss this. I will and do strongly encourage that you meet with the Chapter 13 interviewer. When/why/and how you drew this straw is hard to know. We can speculate on some theories, but will do best to meet next week to get into more detail. This is something that must be dealt with, but is not anything that cannot be handled.

Yeah what I thought. 707 (b) is when the US Trustee feels you have disposable income and may qualify for a ch13.

Keep in mind that if your expenses are in line with the IRS standards and you still don't have much d-income left over and the trustee can't give any other reason then the judge may deny the trustee's request.

A bit surprised your atty didn't catch all this . They usually have an idea on what to do before you do it.

[2US]

What was your original date of file, and did the trustee originally file a report of no distribution?

[ffj2002]

Original date of file 8/15/05
347 9/16/05
Did receive original report of no distribution.

$5500 monthly income
electricity 175.00
telephone 200.00 2 cells, 1 home
Mortgage and home equity loan $1913/mo (15 yr loan, great rate)
home maintenance $100.00
food $800.00 2 adults 2 kids, don't eat out much
clothing 166.00 both have uniforms, kids growing like weeds
laundry and dry cleaning 50.00
transportation 340.00 wife does home care, patient's house to house
recreation 70.00
charity 60.00
car payment 450.00
child care 1102.00
$5688 monthly expenses