HELP! Motion to dismiss

[goingcrzy]

I just got the dreaded call. I am on day 50 from my 341.

Motion to dismiss. The UST just stepped in. His argument is if I had a smaller mortgage (mine is about 5K) that I could afford to pay back my debts.

I have over 100k in cc debt and I am underwater on the house. My lawyer is telling us he isn't disputing the means test and isn't trying to force me into a 13 (no money to fund that). Just dismiss the case.

My plan is to keep the house. Is this similar to what happened to Jessegirl. I am worried I will have to go through the same nightmare that she went through!

I am in the realestate industry and my income has gotten crushed this past year. My lawyer says we will need to go infront of the judge and argue our case.

If I sold my house at a lose I would have more debt! I don't understand why the UST is saying I should live in a smaller house.

Help!!

ps. thank you to everyone who has shared his/her story on this forum. The past year has been a nightmare. This was a major tool in convincing me to file.

pss. sorry for the typos. It is hard to type when one is pulling their hair out (what hair I have left)

[justbroke]

Did you lawyer tell you specifically under what rule the Trustee wants to dismiss? Is it for a straight abuse 707(b)(1) or (b)(2), or is it for "bad faith" 707(b)(3)(A), or "totality of circumstances" 707(b)(3)(B)? (Okay, I re-read and you say that it's not the Means Test so it's not the 707(b)(1) or (b)(2) stuff. Must be a "bad faith" argument.)

I don't see how the UST could argue about your mortgage... but hey.

Looks like your attorney is ready and wiling to fight for you, so that's very good!

[goingcrzy]

The paperwork says 707(1) and (3) no letters behind any of the numbers.

Has anyone had to go infront of the judge here? Anyone win?

[justbroke]

The paperwork says 707(1) and (3) no letters behind any of the numbers.

Has anyone had to go infront of the judge here? Anyone win?

Should have probably read 707(b)(1) and 707(b)(3). So, looks like it's a "bad faith" objection as the reason for dismissal. I don't think jessegirl's case ever went to trial, but she went through the ringer with the UST (Rule 2004 Examination and all). The notice should be very specific on what items the Trustee is questioning. It has to be more specific than "if debtor spent $5K less on their mortgage, they could fund a Chapter 13" or somesuch.

I don't think you're headed to what jessegirl did, because I believe jessegirl went through the Rule 2004 prior to any motion to dismiss. (I could be wrong though).

[keepmine]

Prehaps this case will help.

http://west.thomson.com/practice/bankruptcy/newsletter/2009/01/21/default.aspx

[JRScott]

Were you reaffirming the house?

I hate to ask this but what % of your income is the mortgage a month?

[goingcrzy]

That is what I am hoping for. Case seems very similar to mine.

Keeping my fingers crossed.

Just spoke to my attorney again. He said I should write up all the events that led me to file with proof that I was paying my debt before the real estate market collapsed. I only printed out the last 6 months of statements. I am locked out of the online access.

Anyone have any tips on getting those statments quickly. I have ten days.

Thanks again for the help. I am trying to get discharged with at least one more strand of hair than homer simpson!

[JRScott]

keepmine has a good link there, you might send that to the lawyer too, he might could include that in his arguments if he's unaware of it

[goingcrzy]

JR

We are in the middle of a trial modification. Lawyer said not to reaffirm, that it would give us more leverage (plus in the district I am in, nobody reaffirms). House is about 60% of income, would drop below 40% after modification.

My business is picking up also. I am worried that the UST will say let me see your current accounts (I own a mortgage co). Then say, "oh if this keeps up you can pay your debts".