Over Median Income & Presumption of abuse at 341??

[kcfaninin]

Has anyone entered their 341 with the Presumption of Abuse and came out with a successful discharge?

We are going into our 341 with the Presumption of Abuse, but attorney has filed documentation to support that I no longer work a part time job due to health issues. We are not waiting the 6 month look back period, so I have documention from my physician (requesting I cut back to a 40 hr work week) and a letter from my employer that I resigned my part time position.

Just wondering if anyone would like to share their success stories.

[pcn]

By presumption of abuse, do you mean that the means test showed that result, and that you filed ch7 anyway?

[kcfaninin]

By presumption of abuse, do you mean that the means test showed that result, and that you filed ch7 anyway?

Yes, that is correct. With the loss of income from my part time job, that puts us UNDER the median income. But, when we filed, we were over the income because we had to use our last 6 months of income. Looking forward, we will not have that extra $39,000/yr.

We couldn't wait 6 months for the decrease income to drop off becasue we had judgments filed against us. That is why our attorney requested documentation from my physician and my previous employer.

Do you think we will have problems at our 341? Attorney seems confident?!?!

[pcn]

I wish I had helpful information for you. I was asking for clarification because we are on the edge of presumption, and with some re-figuring by our atty, were able to come in without the presumption and file. I thought initially that you may have had the presumption issue raised at your 341, after filing. I wish you good luck, both with a knowledgeable response, and overall with your bk.

[DeadManCrawling]

Most districts allow presumption of abuse to be refuted with facts like you describe.

The trustee and judge have far-reaching power to look at the "totality of the circumstances" and do so in a forward-looking fashion. If your attorney thinks you will be okay, I would tend in that direction. Understand, though, that the trustee has ONE job only, and that is to protect creditors and force you into a CH 13 if it is possible. Since you have no 2nd job now, that may not be a concern. Wisdom would have dictated waiting to file until that income was off the 6 month lookback, but you may have had other reasons to file with haste, and I think your attorney, not us, is your best guidance.

I hope you will post your results, though, and district, so others can learn from your experience. Districts do vary. Even if you were forced into a 13, there are other options. You could refuse and refile a 7 when the income drops off. This would mean back to square one, though, for a few months, and open you back up to collectors and suits. Or you could try to keep up with a 13 for a few months and make a motion to convert.

Either way, you are probably ok, or your attorney should have known better.

Best.

-dmc

[kcfaninin]

Most districts allow presumption of abuse to be refuted with facts like you describe.

The trustee and judge have far-reaching power to look at the "totality of the circumstances" and do so in a forward-looking fashion. If your attorney thinks you will be okay, I would tend in that direction. Understand, though, that the trustee has ONE job only, and that is to protect creditors and force you into a CH 13 if it is possible. Since you have no 2nd job now, that may not be a concern. Wisdom would have dictated waiting to file until that income was off the 6 month lookback, but you may have had other reasons to file with haste, and I think your attorney, not us, is your best guidance.

I hope you will post your results, though, and district, so others can learn from your experience. Districts do vary. Even if you were forced into a 13, there are other options. You could refuse and refile a 7 when the income drops off. This would mean back to square one, though, for a few months, and open you back up to collectors and suits. Or you could try to keep up with a 13 for a few months and make a motion to convert.

Either way, you are probably ok, or your attorney should have known better.

Best.

-dmc

Thank you for your response. I hope we are going to be "OK". We were previously in a Chapter 13. Dismissed it in June 2009 because we couldn't keep up with the plan payments due to a fluctuation in income. Attorney at the time wouldn't ammend the plan payments. She told us to work more!! We were already working 5 jobs between the 2 of us.

So, 7 months and 2 attorneys later, I think we found one who is on the same page as us. I hope this one knows more then the last 2 we retained.

I just don't know what types of questions we might get asked due to our previous 13, previous high income and then all of a sudden quitting a job. We definately can't afford 13 plan payments now without my second job.

I can't imagine our attorney would allow us to file a 7 if she didn't think it was possible?!?!

[aces67]

We did. It took several weeks to iron it all out but our attorney finally got all our paperwork filed correctly and then the UST realized that we weren't making as much money as he thought so he backed down and withdrew.

Good luck!

[backtoschool]

I think you have a chance of eventually winning, but expect the US trustee to be involved.

It would be much more straight forward if your extra income had dropped off the six month look back period.

In the end though, the US trustee and the panel trustee cannot force you to keep your job.