UGH...filing date keeps getting delayed so we can catch up on mortgage -- help (long)

[goblue]

husband works in a commission only industry. His income fell by over 50% (or more) this year. We've had several months of no income for him.

Initially we thought we were going to file in September, but it keeps getting delayed as his income has been non-existent the last few months. It should start turning around end of this month -- early December.

December won't be as big as we expected so now our plan to catch up on mortgage payments: pay September this month, October and November in December, January and February in February.

So now I'm thinking we need to wait until March to file because he had a big month in August so we need that income to drop off since he should have relatively steady income going forward.

So, my questions:

Is there any way we can file Chapter 7 in December if we are behind on mortgage knowing we'll catch up by February or will they begin foreclosure process (ASC & EMC mortgage holders)

When will Chase and Capital One start to sue for wage garnishments if we stopped paying in June/July 2009? Will I be able to get to the March filing date without them garnishing my wages?

One of my car loans ends in January. If I file in December, that car is included in the means test AND schedule J. How does it effect me passing the means test if I file in March -- do I still get partial credit for the loan since I was paying it for 5 out of the 6 previous months?

If I get a tax refund in February and apply it towards getting current on my mortgage - will the trustee count it as income and/or will they want me to pay it back? I'm OK with any overage going to the trustee - but I need to know if I'm OK applying some to mortgage payments.

I suppose my other option is going Chapter 13. What are the advantages/disadvantages of this? My chapter 7 is costing me $2400 including court fees....how much more is the Chapter 13? Does the trustee montior my monthly expenses during the payback period?

I know this was a lot to digest - I'm completely at a loss right now since our file date keeps getting pushed back.

Thanks for any input. (I'm in DuPage County, IL if that matters)

[keepmine]

First thing you need to ask yourself is, the house worth keeping given the reduction {and uncertainity in a commission only job} in income. If, you're spending more than 35% of your income on a mortgage, you're just asking for trouble post bk. Also, are you in a negative equity situation?

You do need to be current or get current in a hurry. If you're not current when you file, fully expect your lender to file for relief from stay. Using a tax refund to catchup on secured debt repayments is an exceptable use and should cause no issues.

Nobody can tell you when or even if a creditor will sue.

If the car is paid off, you can still claim an operating expense but, you can't use a car payment on your schedules. Just be sure the value of the car is below what your state exempts.

[goblue]

Thanks for the reply. YES, we do have negative equity in the house. We owe about $270 and it's probably worth about $240 now. So I am interested in perhaps letting it go, but i worry about finding a rental property with our credit taking such a hit. We have 2 kids, 3 dogs. How do we go about finding out what is available given our circumstances?

If I decide to give up the house, we could probably file in December. How long 'til we are kicked out of the house? Is it better to secure a rental property as soon as we decide?

If we give up the house, we will be forced into a Chapter 13. Because his job is commission only, we have to guess what his ongoing monthly income will be. What if we say it will be 5K so the repayment plan is based on that and then he really only averages 3K or makes more like 7K (these are just random numbers). Does the trustee adjust our payment plan or does it stay whatever they give us initially?

When we first decided to file BK, there was no way I was going to give up the house -- but now i'm wondering if its our best option going forward. I know we could buy again in 2 years with FHA -- but in the meantime, I'd like a house to call home.

Thanks again -- any/all input welcome.