What if chapter 7 is dismissed?

[Llelxon]

Curious about what happens if my chapter 7 does wind up getting dismissed and I have to wait 180 days to re-file. I am assuming my creditors will be notified that the case was dismissed and they will actively pursue collection, possibly faster than before??? How long in this type of a situation will it take them to file a judgment? Will I be able to make it 180 days without paying my unsecured debit and then re-file hopefully without getting my wages garnished?

Just curious if anyone has any ideas or experience with the above.

[AngelinaCatHub]

No experience, but, what makes you feel this will come about? Now if it does, what you imply will probably happen. They may not have enough time to garnish, but they could. As far as paying, you aren't now, you didn't then, and don't in the future.

Unless you supply more info, this is the best I can do. 'hub

[Llelxon]

Well the UST got involved because I am over the median on gross income and had DMI on schedule J and I am also still contributing to my 401k. I hired an attorney by the way before I get to far.

When I filled out schedule J I put what I had been spending up to filing which is way low because I was paying 1800/month in debt as well. I used the actual expenses because I thought I had to put what I could prove. I realize now I should have put on schedule J what I plan to spend post-bankruptcy. My attorney never flagged anything about it to me. My attorney also said I pass the means test without listing my MIL who moved in this summer. She is sick and bed-ridden and her only income is SSI, she has no savings, retirement, etc. Anyway he said I didn't need to list her and I couldn't say for sure how long she will live or live with us.

So the day after the 341 attorney calls and says UST wants tax returns and all attachments, 6 months paystubs, any other income sources and 401k loan amortization table. Letter also states at the bottom that I have 1000 in DMI and should be a 13. Attorney doesn't think I can do a 13 (I don't think I really can either due to actual DMI), so his recommendation is submit the docs and if they dismiss then I should re-file when I can. I want to amend and correct schedule J and add the MIL and by the online calculator I pass the means test with those criteria.

Anyway that is it in a nutshell why I am asking. I am not all that happy with the attorney I selected, one reason I picked them is the firm has a trustee that works there and I figured they can consult and make sure everything goes smooth...guess not....although my attorney said he did talk to the trustee at the firm about my case and still says I pass the means test, but I don't think I do the way it's currently filed. Most of the advice I was given though is to trust your attorney.....

[LJoutWest]

At our 341 the paperwork was not filled out properly and after the questions by the UST and taking of $1900 because my direct deposit had hit the day the attorney filed (mis-communication between us) and then we had to meet with someone from the UST to answer questions. We answered them with our lawyer, and were given a week to refile and submit our 2008 taxes, 6 months of payroll, etc.

We were over the median but -$932 on the other. So even if the UST objects to two or three items we will still be under. We are waiting to hear from their decision, to allow it, to dimiss or to convert to a 13. Like you, I don't think we can do a 13. I would have your lawyer re-file an amended document and see what happens unless for some reason he doesn't feel that works in your situation. Just my advice, and realize I'm still sweating over mine, though trying to just focus on one day at a time.

[albacore44]

At our 341 the paperwork was not filled out properly and after the questions by the UST and taking of $1900 because my direct deposit had hit the day the attorney filed (mis-communication between us) and then we had to meet with someone from the UST to answer questions. We answered them with our lawyer, and were given a week to refile and submit our 2008 taxes, 6 months of payroll, etc.

We were over the median but -$932 on the other. So even if the UST objects to two or three items we will still be under. We are waiting to hear from their decision, to allow it, to dimiss or to convert to a 13. Like you, I don't think we can do a 13. I would have your lawyer re-file an amended document and see what happens unless for some reason he doesn't feel that works in your situation. Just my advice, and realize I'm still sweating over mine, though trying to just focus on one day at a time.

The attorney i'm using works it from a different angle. He knows from experience what the UST will and wont except as far as expenses when being over the median. He also says you dont want to have too much negative (-) income as that invites scrutiny . He calls it flying under the Radar

[AngelinaCatHub]

LJoutWest, yes, it is wise to 'trust' your attorney, although there are a lot of 'duds' out there. He should have advised you, checked your forms, etc. The blame and bad vibes falls upon him in the eyes of the Trustees. He does not wish to look incompetent to his peers.

Ask him kindly to adjust those forms and attempt to make the one fly instead of waiting and filing again. It will put you off near a year of waiting, as we did out of ignorance and a lawyer who educated us, not. 'Hub


P.S. albacore, she's a beaut......

[Llelxon]

Well I checked Pacer today and this is what I found filed.

As required by 11 U.S.C. Sec. 704(b)(1)(A), the United States Trustee has reviewed the materials filed by the
debtor(s). Having considered these materials in reference to the criteria set forth in 11 U.S.C. Sec. 707(b)(2)(A), and,
pursuant to 11 U.S.C. Sec. 704(b)(2), and based upon information and belief and subject to further discovery the
United States Trustee has determined that1) the debtor's(s') case should be presumed to be an abuse under section
707(b); and (2) the product of the debtor's current monthly income, multiplied by 12, is not less than the requirements
specified in section 704(b)(2)(A) or (B). As required by 11 U.S.C. Sec. 704(b)(2) the United States Trustee shall, not
later than 30 days after the date of this Statement's filing, either file a motion to dismiss or convert under section
707(b) or file a statement setting forth the reasons the United States Trustee does not consider such a motion to be
appropriate. Debtor(s) may rebut the presumption of abuse only if special circumstances can be demonstrated as set
forth in 11 U.S.C. Sec. 707(b)(2)(B). Filed by U.S. Trustee xxxxxxx

I guess this means it is going to be a mess going forward....

[lrprn]

I guess this means it is going to be a mess going forward....

Yes. The US Trustee is going to try to push you into a Ch 13. However, your own lawyer is there to fight for your interests.

It sounds like you need to file an amended plan. The problem is going to be since you used your bare-bones expenses for the initial filing, now it's going to be harder to explain now how your expenses are actually higher than what you first put down. It's likely you'll be asked to justify them.

Your lawyer took the easy way out by just using your figures and not advising you about using community standards rather than your own stingy pre-filing expenses - frustrating now after the fact, I'm sure

Since your lawyer didn't help you avoid this, now he/she gets to help you dig out of the hole. Best of luck - I hope everything works out in your favor.

[Kingxray]

Well I checked Pacer today and this is what I found filed.

As required by 11 U.S.C. Sec. 704(b)(1)(A), the United States Trustee has reviewed the materials filed by the
debtor(s). Having considered these materials in reference to the criteria set forth in 11 U.S.C. Sec. 707(b)(2)(A), and,
pursuant to 11 U.S.C. Sec. 704(b)(2), and based upon information and belief and subject to further discovery the
United States Trustee has determined that1) the debtor's(s') case should be presumed to be an abuse under section
707(b); and (2) the product of the debtor's current monthly income, multiplied by 12, is not less than the requirements
specified in section 704(b)(2)(A) or (B). As required by 11 U.S.C. Sec. 704(b)(2) the United States Trustee shall, not
later than 30 days after the date of this Statement's filing, either file a motion to dismiss or convert under section
707(b) or file a statement setting forth the reasons the United States Trustee does not consider such a motion to be
appropriate. Debtor(s) may rebut the presumption of abuse only if special circumstances can be demonstrated as set
forth in 11 U.S.C. Sec. 707(b)(2)(B). Filed by U.S. Trustee xxxxxxx

I guess this means it is going to be a mess going forward....

We are going through a similar situation. The UST would not accept some of our expenses on our means test (it was a "gray area" in the law) so they filed a presumption of abuse under 707 and later a motion to dismiss. After the lawyer attended a few hearings on our behalf the UST told our lawyer to dismiss and refile. We dismissed our case but we did not have to wait 180 days to refile. We did not have to pay any additional money to our lawyer just the refiling fees. We only had one creditor chase us after we dismissed (my dad). The others never bothered us. Maybe it's a paperwork thing.

We refiled and another UST got involved and filed a presumbed abuse and motion to dismiss. After our lawyer attended the first hearing on our behalf this UST suggested that we amend our means test to include the expense that was not allowed when we first filed and they would not contest it. We filed our amended means test and are now waiting to hear from the UST.

So, follow your lawyer's advice. All hope is not lost yet.

[Llelxon]

Well we filed an amended schedule J yesterday that now shows a DMI of -41 if when they factor my 401k contributions as income. My attorney also asked them to remove the notice of presumed abuse.

How long does the UST have to act next. I thought I recalled they have to file a motion to dismiss within 30 days from the 341 is that correct? My 341 was 12/2 and am wondering how the holiday will play into the timing of the next step.

[justbroke]

Well we filed an amended schedule J yesterday that now shows a DMI of -41 if when they factor my 401k contributions as income. My attorney also asked them to remove the notice of presumed abuse.

Yeah, 401(k) contributions and loan repayments are disposable income in a Chapter 7 (but not in a Chapter 13).

How long does the UST have to act next. I thought I recalled they have to file a motion to dismiss within 30 days from the 341 is that correct? My 341 was 12/2 and am wondering how the holiday will play into the timing of the next step.

No, it's 40 days from the 341 Meeting unless they ask for an extension. First they get 10 days to file a statement of a presumption of abuse. Then they have 30 days from that statement to file a motion to dismiss. So, that's up to 40 days. The holiday will not play into any timing unless any "due date" falls on a holiday/weekend.

Also, they can file a motion under 707(b)(3) for "abuse" or "totality of circumstances" up to the dischargeability date (60 days after the 341 Meeting).