I am in complete shock......

[TeacherMomma]

Ok, now I know I will probably hear from the UST on this.....but this is what Pacer says regarding my case. I mean, this is GREAT.....I am not sure why the TT would do this considering what the UST told us on Monday (was probably going to file a presumption of abuse due to our income, and was trying to convert us to 13). But here is what it says.....is this normal for cases that the UST is involved in, do they act AFTER the TT files no distribution? And what are the "Assests Abandoned" of 2K?

Chapter 7 Trustee's Report of No Distribution: I, XXXXX, having been appointed trustee of the estate of the above-named debtor(s), report that I have neither received any property nor paid any money on account of this estate; that I have made a diligent inquiry into the financial affairs of the debtor(s) and the location of the property belonging to the estate; and that there is no property available for distribution from the estate over and above that exempted by law. Pursuant to Fed R Bank P 5009, I hereby certify that the estate of the above-named debtor(s) has been fully administered. I request that I be discharged from any further duties as trustee. Key information about this case as reported in schedules filed by the debtor(s) or otherwise found in the case record: This case was pending for 1 months. Assets Abandoned: $ 2000.00, Assets Exempt: Not Available, Claims Scheduled: $ 1068125.00, Claims Asserted: Not Applicable, Claims scheduled to be discharged without payment: $ 1068125.00. Filed by Trustee XXXXX related document(s) 2 Meeting of Creditors with 341). (XXXXX) (Entered: 06/23/2009)

[justbroke]

The report of no distribution is just that. You're a no asset case and the Case Trustee wants to be relieved of duty.

As for the U.S. Trustee and a motion for dismissal under 707(b), they need to do within 10 days of the 341 Meeting, or they can't dismiss under 707(b)1()/707(b)(2).

I don't know what the abandoned asset of $2K is... future tax refund???

[TeacherMomma]

No, we dont have one coming. We got a little under 1K back in Feb, but we used it to pay student loans....it hasn't come up.

My assets that I exempted are 2K total (household goods, ring, hubbys work stuff). ??
So basically the UST has till Friday the 3rd? If my 341 was Monday June 22? It is 10 business days right? OR 10 regular days?

[aces67]

Mine said that too and the UST filed a presumption just 4 days later.

[TeacherMomma]

Ok, well I just called him (the UST that we spoke to Monday) and he said it is two different things which I knew, and he is still looking into my situation (well I hope his looking into takes more than 10 days! LOL) and will call me back.

Oh well, we'll see.

But why wouldn't the TT file a presumption? I mean, if our numbers are what they are - isn't it his job to do that too?

[justbroke]

My assets that I exempted are 2K total (household goods, ring, hubbys work stuff). ??

Okay, probably those assets.

So basically the UST has till Friday the 3rd? If my 341 was Monday June 22? It is 10 business days right? OR 10 regular days?

Generally speaking, the Trustee has 10 days to file a statement of the presumption of abuse. This seems to be a bar date for that presumption, so they can't extend the time. Then, after making the statement, they have 30 days to actually file a motion for dismissal or conversion.

Now, they could file a 707(b)(3) motion separately, and that type of motion for dismissal would need to come before discharge or 60 days after the 341 Meeting, whichever comes first.

I'm not saying the 707(b)(3) motion is coming, that's just another way the U.S. Trustee can ask for a dismissal. however, most dismissals are of the 707(b) (707(b)(1), 707(b)(2)) type for abuse. The 707(b)(3) motions are around "bad faith" and "totality of circumstances". As you indicated in earlier posts, looks like the U.S. Trustee is only looking at the presumption of abuse, so you don't need to worry about the 707(b)(3) dismissal.

But why wouldn't the TT file a presumption? I mean, if our numbers are what they are - isn't it his job to do that too?

The Case Trustee, commonly referred to as the Trustee, the Tee, or the TT, is just that... the Case Trustee. The "real" Trustee is the U.S. Trustee and they are the one who brings forth dismissals and other motions. Think of the Trustee at the 341 Meeting, as just your case administration Trustee. The case Trustee can sell property and do anything to administer the distribution of assets. If there are no assets, the (case) Trustee wants to be done as quickly as possible, because they only make about $15.00 on a no-asset case.

The U.S. Trustee (UST) is the "real" deal, and has all the power. The UST is responsible for making sure debtors are entitled to a discharge. It's their duty to find issues and to stop you from getting a Chapter 7 discharge, when you don't fit the formula or an abuse is apparent.

Hope that helps.

[BKParalegal]

No, as it was stated before. The Trustee's defined role is to determine if there are assets of the estate. It is not the TT's job, to determine dischargeability issues.

Good Luck

[TeacherMomma]

Thanks for the info.

Regarding the assets - that doesn't mean I am paritng with them right? I exempted them....

[TeacherMomma]

And if I hear nothing betwee now and the 10 days, then they cannot motion to dismiss? So the 30 days only comes into play if they file something within 10 days?

[justbroke]

And if I hear nothing betwee now and the 10 days, then they cannot motion to dismiss? So the 30 days only comes into play if they file something within 10 days?

Well, they cannot motion to dismiss over a presumption of abuse (707(b)). I personally think you're okay, if they don't ask for dismissal by then.

The next level that kicks in is the 707(b)(3) motion to dismiss, which I eluded to earlier, but didn't want you to panic over. The (b)(3) dismissals have to do with "bad faith" (707(b)(3)(1)), which I don't think you have an issue there, or a "totality of circumstances" (707(b)(3)(2)) . I know, all these numbers and letters are confusing, but I wanted you to see the difference in them.

The UST can file a 707(b)(3) motion up until discharge or 60 days after the concluded 341 Meeting, whichever comes first (unless there is cause).

Again, I don't think you have a "bad faith" or "totality of circumstances" issue, otherwise the UST would have said so. The UST only told you that he thinks it's a presumption of abuse because of the amounts you used in your expenses for servicing of the student loan debt.

[TeacherMomma]

That is right, that is exactly what he said......

[TeacherMomma]

Talked to the UST, said Ch 13 is a no go.
Said they have no choice but to file a presumption of abuse under 707 b due to the fact that they cannot allow my 3000K student loan payments as a special circumstance. I asked about rebutting it, he said that the UST would not be bringing forward a 707b if they did not feel confident they would be successful against a rebuttal, but that I "could try".
He said my only bet was to covert to a Ch 11 due to the level of debt. He said if I wanted to do that to call him back (or hire an atty) and he would file a stipulation to convert to an 11.

I have a lot of research to do. I cannot afford an atty for the 11, and I know they are tricky (he said he thought I could do it, whatever that means) and that people "think" 11s are expensive BECAUSE they feel like they have to hire attys, and also cause they are not being completely wiped of their debt like in a 7, and because the filing fee is higher, and because there are quarterly fees paid to the UST (but he said you can motion for a final decree and then you dont have to pay the fees????)......so <sigh> I don't know. Lots of reading ahead in my weekend.

[music12]

wow. lots of good luck to you.

when he said he thought you could do it, it's probably because he was impressed with your knowledge of the law. however, remember that at this point he is your adversary and should not be giving you legal advice. that's in fact unethical of him. he should not be telling you to convert to ch. 11 or anything like that.

even if you decide to go forward pro se, i think a good idea may be to have an attorney "on call" - someone who is willing to give you quick advice as you go along and you'd pay by the hour.

[justbroke]

Talked to the UST, said Ch 13 is a no go.

Imagine that... the UST was wrong in his assumption that you could actually file one. Sheesh.

Said they have no choice but to file a presumption of abuse under 707 b due to the fact that they cannot allow my 3000K student loan payments as a special circumstance. I asked about rebutting it, he said that the UST would not be bringing forward a 707b if they did not feel confident they would be successful against a rebuttal, but that I "could try".

yes. Usually when the UST picks a fight... s/he usually has a good case.

He said my only bet was to covert to a Ch 11 due to the level of debt. He said if I wanted to do that to call him back (or hire an atty) and he would file a stipulation to convert to an 11.
... he said he thought I could do it, whatever that means) and that people "think" 11s are expensive BECAUSE they feel like they have to hire attys, and also cause they are not being completely wiped of their debt like in a 7, and because the filing fee is higher, and because there are quarterly fees paid to the UST

Yeah, the sad part is that Chapter 11s are tough because you become the awesome "Debtor in Possession", and unless and until the Court decides that it needs to appoint a Trustee... you ARE the Trustee. While the U.S. Trustee conducts the 341 Meeting, you have serious power, as DIIP, and so does you "largest" creditor when it comes to voting on your Plan.

The nice thing in a Chapter 11, you can propose a 6 year plan. You have months to file a Plan, rather than 15 days in a Chapter 13.

The biggest thing is the reporting and that's where the expense seems to come in. I don't know any pro se filers for Chapter 11, so... I wish you luck in pursuing it. I was almost there myself and did some research. It didn't seem "that" bad to me, given my creditor mix and my debt load. Actually, my electric company things I filed a Chapter 11 and they always refer to me as the Debtor In Possession.

I'm sad that you're in this position. It's no fun for sure. There are a couple of cases where a (non-business) debtor proved that being in a Chapter 11 was too much and a Judge granted relief under Chapter 7. Yes, time for some research!

[TeacherMomma]

It's depressing.

But ya know - the more I read about that case in Oklahoma (that you posted recently justbroke) were the couple was successful in objecting the presumption regarding using their SLs as a special circumstance expense.....the more I think I am in a WAY worse situation than them and why shouldn't I "try" to fight it? I would not be in a worse spot, would I? I'd still be facing an 11 or having it all dismissed, so why not? I read the documents they filed, and the reasons they gave and we are no different except that I have much much more SL debt than that couple (they made a lot less than we do, but if you look at the ratio of SL debt to income we are not different, if that makes sense)....I guess in my heart I am thinking to object just because at this point I don't think the UST knows what the heck he is doing regarding SLs. I mean, he said to me "well you do not have the two reasons Congress gives to allow the SLs: miliary leave or disability. Well, if you read the code it says "such as" not "limited to" in regards to SLs being allowed as an expense. Those are EXAMPLES not specific and limiting!
And also, it says that the debtor does not have "any other alternative than to pay"....welll I don't, none of us with SLs do! I told him that and he said "that is a very good point - we just don't have that going on in this area". Not like I want to be the first - but I guess my point is that it cannot HURT me at this point. Right?

And after my 341 I don't trust an attorney farther than I can throw one - but I am sure that will pass. I was just really freaked out at the mess ups!