Question on recent case ruling

[goingcrzy]

Hello-

I am "eagerly" awaiting my day in court in Oct on a 707(b)3 presumtion of abuse. UST filed a motion to dismiss based upon a $4900 dollar a month mortgage. She thinks that if we sold our house (we are underwater) that we could use that amount to pay back our debts.

Justbroke had sent me a link for the CA case where the Judge said a high mortgage was allowed, but I am not in the same district.

I came across this case http://www.ca1.uscourts.gov/cgi-bin/...N=08-9007P.01A where the UST was agruing that when a house is going to be turned over in a Chap 7, the mortgage payment can not be included in the means test.

The judge said that it could be included in the means test regardless of the intention to keep the house or not.

Even though this is a 707(b)2 case, can I use the same arguement? That even if we left the house (which we are planning on keeping) the expense (no matter how high) could still be used in the means test.

Since this case was in front of the Bankruptcy Appellate Panel, does this make it the "law of the land" or is it a district thing?

I don't know if I am stretching it or if this is good news for me.

Thanks for any input!!!

[goingcrzy]

sorry it was the U.S. Court of Appeals for the First Circuit

[goingcrzy]

Heres somthing similar for a car

1st Circuit Affirms Means Test Decision
By Nicholas Ortiz, Boston Bankruptcy Attorney on Aug 5, 2009 in Means Testing

The U.S. Court of Appeals for the First Circuit today affirmed in re Rudler, a case in which both the Bankruptcy Court and the Bankruptcy Appellate Panel for the First Circuit allowed a means test deduction for a car payment when then car was being surrendering in the course of the bankruptcy case. The opinion is available here.
The crux of the government’s objection was that allowing a means test deduction for a payment that the debtor wasn’t going to be paying after the bankruptcy would be unfair and contrary to the intent of Congress. The debtor, on the other hand, focused on the language of the statute which allowed a deduction for secured debts “scheduled as contractually due.” After addressing the scuffle over whether this language was ambiguous, the majority of the circuit court held that language was unambiguous and that no absurdity would result from simply following it. It pointed out that, since the case was a Chapter 7, a motion for abuse under the totality of the circumstances was still possible.

(sorry) I'll try not to post after drinking my coffee!

[music12]

court of appeals decisions are binding on all states within the same circuit. they may also be used in other circuits to persuade a judge but they are not binding there. however, if an issue comes up in bk court that was decided only in other circuits, it's very likely the bk judge would follow those decisions. if there is a decision in your circuit, the bk judge must follow it. if there are conflicting decisions, the judge must ignore the other circuits and follow his own circuit.

i always find it beyond weird that different circuits could come up with conflicting decisions when the code and law is the same. the fallibility of the system is unbelievable.