No surprise- UST filed Presumption of Abuse

[olivies]

I'm trying not to get stressed about it, and will just wait for my attorney to find out what's coming next. I'm not surprised, because we are over the median income. Then again, she asked us to review our healthcare expenses because it "could help [your]our numbers" and I sent our attorney copies of our benefits statements year to date. To our amazement, over the past 7 months we have spent on average $400 MORE than the IRS standard allowance that we took on the means test. And yet, still, she files the presumption.

[despritfreya]

Not meeting the "means test" only means that there is a presumption of abuse. It is rebuttable based upon your circumstances. You need to sit down with your attorney and decide if you can show that you are "deserving" of Chapter 7. The UST has a short window in which to file the Notice. Now it is up to you and your attorney to persuade the UST not to file a Motion to Dismiss.

[olivies]

Not meeting the "means test" only means that there is a presumption of abuse. It is rebuttable based upon your circumstances. You need to sit down with your attorney and decide if you can show that you are "deserving" of Chapter 7. The UST has a short window in which to file the Notice. Now it is up to you and your attorney to persuade the UST not to file a Motion to Dismiss.

We passed the Means test, so I'm not sure if she's varying form the typical formula and figuring in our annual bonus (which was not within the timeframe for calculating our average monthly salary as it was awarded after we filed) or disallowing certain expenses or what.

[despritfreya]

Ok, you passed means testing.

For a 707(b)(2) matter, the 6 months pre petition is applicable therefore the UST would not be imputing income based upon your actual annual earnings which includes a bonus that is outside the window. The UST may, however, be looking at the amount of medicals you listed and may want verification of the same. It is also possible that your attorney made mistakes in the calculations.

If the UST is looking into a 707(b)(3) matter, then your "true" income and expenses would be looked at.

Regardless, the next step is a telephone call to the UST's office to find out what the problem is and then take steps to resolve it.

[backtoschool]

Some common expenses that are dissallowed by US trustees are:

Housing payments over the IRS standards if you are giving up the house

Car payments over the IRS standards

Student loan payments

Food and utility payments over the IRS standards

Certain voluntary medical expenses

The list goes on....

Figure that any item that you put in your expenses that is over the IRS standards will be questioned by the US trustee in order to get you into a chap 13.

If you have receipts and a good reason for having the expenses, you should be able to move forward, but you definitely need to talk to your lawyer.

[screentest]

Olvies,

It looks like we are in the same boat. We are one week out from our 341 and the U.S. trustee has already gotten involved and is asking for further documentation. They now want an additional month of pay stubs and another copy of our 2009 tax return. They also asked our attorney if it was our intent to keep our home. Ah no....Pay and retain...not reaffirming.

We are over the median, passed the means test and show a negative DMI of around $500-$700 dollars. We are not sure what the objections are going to be yet; however, we are gearing up for the fight.

Our attorneys and us felt our case, numbers and petition were water tight so who knows what triggers these things and yes, I share in your feelings of stress!!

My attorneys also feel they will beat any objection; however, they also told me our petition would never get questioned and yet here we are.

Hang in there!!

ST

[olivies]

Thank you both. It is a 707(b)(2) issue, according to the notes on Pacer. I will be calling our attorney tomorrow.

[olivies]

Olvies,

It looks like we are in the same boat. We are one week out from our 341 and the U.S. trustee has already gotten involved and is asking for further documentation. They now want an additional month of pay stubs and another copy of our 2009 tax return. They also asked our attorney if it was our intent to keep our home. Ah no....Pay and retain...not reaffirming.

We are over the median, passed the means test and show a negative DMI of around $500-$700 dollars. We are not sure what the objections are going to be yet; however, we are gearing up for the fight.

Our attorneys and us felt our case, numbers and petition were water tight so who knows what triggers these things and yes, I share in your feelings of stress!!

My attorneys also feel they will beat any objection; however, they also told me our petition would never get questioned and yet here we are.

Hang in there!!

ST

I am sure there are things that "flag" us. Like housing. The UST asked "so, you're asking for a housing variance?" to which our attorney said most definitely, that the allotted standard was not even reasonable for a family with 6 kids. We rent, and for a family of 8 we are allowed $1,060 I believe. Well, we are renting a 1400 sq ft house, no utilities included, for $1555 a month and that is as cheap and as small as we can possibly go unless we want to move into a neighborhood ruled by drugs and crime. And our rent is cheaper than what we were paying for the past 2 yrs ($1725 for a 1700 sq ft house). We moved to a different (cheaper) town and smaller home to try and get a lower rent for our budget. But $1000 is just not reasonable - 2BR apartments are going for that, so really I would love to know how these standards are derived! Seriously- I know some people say their worse nightmare would be to have the trustee come in the house and value everything you own. I say bring it on if she thinks we're fibbing about the state of things- I don't even own living room furniture! (Ok- so we have 1 chair- bought it used off of Craigslist for $75. One chair and 8 people. It'ld be funny if it weren't so sad.).

[Fallonedward]

I am sure there are things that "flag" us. Like housing. The UST asked "so, you're asking for a housing variance?" to which our attorney said most definitely, that the allotted standard was not even reasonable for a family with 6 kids. We rent, and for a family of 8 we are allowed $1,060 I believe. Well, we are renting a 1400 sq ft house, no utilities included, for $1555 a month and that is as cheap and as small as we can possibly go unless we want to move into a neighborhood ruled by drugs and crime. And our rent is cheaper than what we were paying for the past 2 yrs ($1725 for a 1700 sq ft house). We moved to a different (cheaper) town and smaller home to try and get a lower rent for our budget. But $1000 is just not reasonable - 2BR apartments are going for that, so really I would love to know how these standards are derived! Seriously- I know some people say their worse nightmare would be to have the trustee come in the house and value everything you own. I say bring it on if she thinks we're fibbing about the state of things- I don't even own living room furniture! (Ok- so we have 1 chair- bought it used off of Craigslist for $75. One chair and 8 people. It'ld be funny if it weren't so sad.).

Ohh, this concerns me as well. Our mortgage and re taxes are paid together each month 1401 mortgage and 371 RE Taxes. We are a family of 5 and looking for cheaper places we have found nothing that is smaller that is actually going to work. We looked at a 2 bedroom apartment this weekend and we were told that we could not rent it because we could not put 3 kids in one bedroom because they were of different sex.

Plus ever place requires a security deposit and utility deposits plus the cost of moving adds up to about 5K that we do not have.

I want to keep the house and not reaffirm and then maybe as our life gets better we can save to move to a another location and save for moving expenses

[olivies]

We looked at a 2 bedroom apartment this weekend and we were told that we could not rent it because we could not put 3 kids in one bedroom

We had similar problems finding a place here. Some HOUSES we looked at even had restrictions through the neighborhoods HOA that would allow renters to only have 2 people per bedroom. So one house we looked at that was $1400 a month was not an option to us because it was just 3 BRs. However, the owner did have another rental property in that neighborhood with 4 BRs...for $2300 a month. DH laughed and told her no thanks, it would be highly irresponsible of us to even consider that since we know we can't afford it.

Good news is I searched on Pacer and this UST has a lot of cases that she files a POA on- and many end up continuing and discharging. So I don't feel so ruined anymore- just waiting from our attorney to hear what it is she wants.