Anyone here good at Pacer searching and want to help me?

[TeacherMomma]

I'd be happy to pay for your help and reimburse for Pacer.

I need to find cases in my district (9th, Central Court California) that people are in a Chapter 7, who have student loans included on their schedule J as an expense, and have passed the timeframe that the UST has to file the statement of presumed abuse (or are discharged, even better). Recently, like within the last year or two.

Basically, one of my arguments in my objection is that "you let them, so why not me". And I need help finding those cases.

PM me if you are interested.

[justbroke]

You can't do that with PACER. PACER is absolutely the wrong tool.

What you could do, is check to see if your District has an area of their website on which the publish their opinions. Generally, you can get a wealth of caselaw from this for your specific Court. Just go to your Court's website and see if there is a link for Opinions.

Otherwise, search the Court Calendar and find cases that have already been heard that are Chapter 7 and have your specific issues.

Some courts even have a Case Digest with similar information.

Here's some links for SoCal...

CASB Published Opinions

CASB UnPublished Decisions

[TeacherMomma]

That's where I found what I found so far - that was how I could look at the people's schedule J.

I have not found anything in my court's calendar, nothing. And even when I find something remotely close, I have to look the case up in Pacer.

I am not, at this point, looking for people that argued what I am arguig, I am looking for people who were "let by" without having a abuse motion filed against them.

What am I doing wrong?

[MSbklawyer]

I don't think PACER is going to help you. Pacer just allows you to look up cases by case number or debtor name or party name or attorney name &c. I don't think you'd be able to search by entries on schedule "J".

And even if you were successful in finding a case where the trustee for whatever reason, did not object to the inclusion, he's not going to be bound to follow that course in future cases.

What you need is Westlaw or Lexis to search where a court has allowed the itemization you are looking for. You can get access to either by credit card or paying in advance.

[justbroke]

I am not, at this point, looking for people that argued what I am arguig, I am looking for people who were "let by" without having a abuse motion filed against them.

Just because the Trustee let it go, whether it slipped by unnoticed or was intentionally overlooked, is not a defense.

I think you're looking for the answer in the wrong place.

[MSbklawyer]

How are you finding cases like that on PACER, unless you're just going through case after case sequentially?

[justbroke]

How are you finding cases like that on PACER, unless you're just going through case after case sequentially?

I believe Momma is using the Court's Published and UnPublished Opinion search engine, then looking up the cases in PACER.

[TeacherMomma]

Why wouldn't it be a defense? Either they are allowed as an expense, or they aren't. And there are people being allowed to use them and be over median like I am. Hardly seems fair. Seems like they are making a point of me having more debt than they do, as far as allowing it.

I do have access to Westlaw and Lexis.

[TeacherMomma]

How are you finding cases like that on PACER, unless you're just going through case after case sequentially?

I've tried different ways. And found two so far. But yeah - just looking through cases in my court, specifically my judge's calendar for the last few months, then looking them up. Sucks.

[justbroke]

Why wouldn't it be a defense? Either they are allowed as an expense, or they aren't. And there are people being allowed to use them and be over median like I am. Hardly seems fair. Seems like they are making a point of me having more debt than they do, as far as allowing it.

Do you know that this has occurred, rather than anecdotal evidence of it? I guess that's not a fair question, because that's what you're actually trying to find out. Problem could be that recent caselaw may have them more strict about this, where in prior years, they let it go. Many Districts go through phases where they do as they wish, until some precedent is set.

I'm not sure that bringing up other cases is on point... but then again, I'm no lawyer.

[MSbklawyer]

Why wouldn't it be a defense? Either they are allowed as an expense, or they aren't. And there are people being allowed to use them and be over median like I am. Hardly seems fair. Seems like they are making a point of me having more debt than they do, as far as allowing it.

I do have access to Westlaw and Lexis.

Because trustees don't have any authority in bankruptcy to allow expenses or not -- or anything else really. Trustees are merely the representative of unsecured creditors. They are just another litigant in the case. They can argue that student loans shouldn't be allowed as expenses and hope the court agrees with them, but they don't have any authority to decide.

They often ACT LIKE they have authority -- "I'm not going to allow this expense" and things like that, but what they are really saying is that they are going to object to it with the court -- but they have no decision making authority.

[TeacherMomma]

Well, the two different ones I found are either a few days past their 60 with no objections/motions, etc. So discharged essentially. Or closed and discharged completely within the last year with my judge.

I am not going to cite them (initially anyways), I just want them because in one of the declarations the UST says they are not allowed in this district, and when I respond to that saying they ARE being allowed I want to be right.

I have spoken to people here that have them on J as an expense and are either discharged or close (in my court).....but those are not my examples, so there ARE more somewhere.

I don't see why, if he is going to put erroneous information in his declaration, I cannot rebut that?

[justbroke]

I still believe that your best defense would be to itemize each loan down the the date it was created, the original balance, the current balance, the maturity date and whether you have any opportunity to defer payments or go into forbearance. For all those which you can't go into deferment/forbearance add them up and show that these are current obligations which are "contractually due in the next 60 months". Therefore they comprise installment debt that is due and are allowed expenses.

Let the Trustee fight that they are not expenses "contractually due in the next 60 months"... since you can't get a forbearance, tell him how you're supposed to pay them. Indicate that a hypothetical Chapter 11, would have you paying them anyhow, in Plan, and the net result is a back-door Chapter 7, and Congress never intended the system to work in such a way.

They can argue that student loans shouldn't be allowed as expenses and hope the court agrees with them, but they don't have any authority to decide.

MSBK sums it up where I was going! Make them prove it!

Well, that's my thought.

[TeacherMomma]

Because trustees don't have any authority in bankruptcy to allow expenses or not -- or anything else really. Trustees are merely the representative of unsecured creditors. They are just another litigant in the case. They can argue that student loans shouldn't be allowed as expenses and hope the court agrees with them, but they don't have any authority to decide.

I am speaking of the UST, not my case trustee. Just to be clear. I understand that my judge will be deciding this and that is what I am preparing - a response to the UST's motion to dismiss under 707B, and the abuse he is stating is that I have disposable income because he won't accept my SLs as an expense.

[MSbklawyer]

I am speaking of the UST, not my case trustee.

Still, no authority.

Now, ideally, trustees should be consistent in what they object to, no doubt, but I'm not aware of anything that requires them to be.

You would be better off to argue that the loans should be allowed as an expense and that the trustee's argument is wrong. You're not going to get very far by arguing that the trustee has not objected in other cases to similar expenses.