Presumption of Abuse Filed

[screentest]

It's official. Yesterday the US Trustee filed their motion of presumed abuse against our case. This was one day after our corrected means test and schedules were filed. Both showed negative DMI.

I won't find out until Monday what the actual presumption is however my guess is they believe I make far more money that I actually do.

Has anyone dealt with this before and won a presumption of abuse filing?

My attorneys are little help at this point as they seem to apply the line "don't worry" to every situation. Honestly, I think they are in over their head on this one.

Question:

Would you allow a conversion to a chapter 13 even though the likelihood of getting a plan confirmed is nil or would you face your creditors again and attempt debt settlement with the possibility of refiling a 7 again later. The chapter 13 trustee in our area has a hand book that states if your case is converted from chapter 7 to chapter 13, you can NO LONGER file for another chapter 7. Not anytime in the future. Is this true?

I just don't know what to do or where to turn. The stress is overwhelming and frankly just not worth it anymore. I don't confide in anybody so this board is my only outlet.

Any help and ALL opinions are welcome.

Thank You
ST

[backtoschool]

It's official. Yesterday the US Trustee filed their motion of presumed abuse against our case. This was one day after our corrected means test and schedules were filed. Both showed negative DMI.

I won't find out until Monday what the actual presumption is however my guess is they believe I make far more money that I actually do.

Has anyone dealt with this before and won a presumption of abuse filing?

My attorneys are little help at this point as they seem to apply the line "don't worry" to every situation. Honestly, I think they are in over their head on this one.

Question:

Would you allow a conversion to a chapter 13 even though the likelihood of getting a plan confirmed is nil or would you face your creditors again and attempt debt settlement with the possibility of refiling a 7 again later. The chapter 13 trustee in our area has a hand book that states if your case is converted from chapter 7 to chapter 13, you can NO LONGER file for another chapter 7. Not anytime in the future. Is this true?

I just don't know what to do or where to turn. The stress is overwhelming and frankly just not worth it anymore. I don't confide in anybody so this board is my only outlet.

Any help and ALL opinions are welcome.

Thank You
ST

Hi Screentest,

Can you list your expenses here? That would help us figure out what the US trustee might be finding objectionable.

Here are some expenses that are red flags for the US Trustee:

1. Auto payments in excess of irs standards for your geographical area (usually any auto payment over $450 or so will be a red flag)

2. Student loans claimed as an expense (most districts do not allow student loans to be used as an expense on your schedules.)

3. Food/Entertainment expenses over irs standards.

4. Daycare, private schooling, private lessons etc. that are excessive.

5. Mortgage that is over the irs standard for your area.

Also, as far as income goes, here are a couple of red flags for the US trustee:

6. Self-employment

7. Unemployment when you formerly had a high income, or a huge income drop when you are still in the same career/field etc...

If you are being flagged in one area, it might be possible to find legitimate expenses in another area, so don't despair.

[screentest]

Hi Backtoschool,

Great to hear form you.

Yes, I believe our attorneys included expenses that were red flagged such as student loans of $380.00 a month on the schedules, not on the means however; when I pointed these out our attorney wouldn't remove them and said they had to be listed. He had also never heard of a BK deferment of student loans before either....this was scary.

There may be others as well, one in particular was support of elderly parents of $220 a month and maybe a few others I cant think of now. I know we used the IRS allowances for almost everything else. I can verify all of this with receipts and I just may have to do this if we go to battle.

I guess it depends on how much the US trustee is challenging... right? I dont think it matters as no matter how many expenses they deny there is still not going to be enough left over to fund a Chapter 13....at least according to our local 13 trustee that he will accept anyway.

My attorneys said if I didnt approach the chapter 13 trustess with at least $1000.00 a month or a plan that paid a high percentage of unsecured then I could just forget it. This is another reason we just went for the Chapter 7.

I will pull my petiton and try and post the other numbers. I know I showed negative $225 on the schedules.

ST

[backtoschool]

Hi Backtoschool,

Great to hear form you.

Yes, I believe our attorneys included expenses that were red flagged such as student loans of $380.00 a month on the schedules, not on the means however; when I pointed these out our attorney wouldn't remove them and said they had to be listed. He had also never heard of a BK deferment of student loans before either....this was scary.

There may be others as well, one in particular was support of elderly parents of $220 a month and maybe a few others I cant think of now. I know we used the IRS allowances for almost everything else. I can verify all of this with receipts and I just may have to do this if we go to battle.

I guess it depends on how much the US trustee is challenging... right? I dont think it matters as no matter how many expenses they deny there is still not going to be enough left over to fund a Chapter 13....at least according to our local 13 trustee that he will accept anyway.

My attorneys said if I didnt approach the chapter 13 trustess with at least $1000.00 a month or a plan that paid a high percentage of unsecured then I could just forget it. This is another reason we just went for the Chapter 7.

I will pull my petiton and try and post the other numbers. I know I showed negative $225 on the schedules.

ST

The student loans are the red flag that probably got you a presumption of abuse. Anyone should always be prepared to battle with the US trustee for student loan expenses. It's about 50/50 whether your district will allow the expense. My district does not, but some others do. Ymmv.

It only takes about $150 a month to fund a chapter 13. If your lawyer told you more, he/she is mistaken. If they disallow your student loans, then you have enough to fund a chapter 13. There are 1% chapter 13s approved all the time, where only 1% of money is going to unsecured debt. There are also 0% chapter 13s approved where 0 percent is going towards unsecured debt.

The support of your elderly parents should not be an issue if you have receipts. Do you claim the expenses on your taxes? Even if you don't claim the expenses on your taxes, receipts should be enough to allow that expense.

My guess is that if you look closely at your insurance costs, medical costs, association costs, car maintenance costs, etc.... that $380 a month can be recovered in other expenses.

[tcreegan]

small ray of hope

Hi Screentest,

It's official. Yesterday the US Trustee filed their motion of presumed abuse against our case. This was one day after our corrected means test and schedules were filed. Both showed negative DMI.

I don't want to give you any false hope, but unless your UST is way ahead of the paperwork piles, I would guess that they filed the presumption before they saw your corrected schedules.

Has anyone dealt with this before and won a presumption of abuse filing?

Search the forum, this is not uncommon.

Best of luck to you with this !

Tom in Colo

[momofthree]

Hi Backtoschool,

My attorneys said if I didnt approach the chapter 13 trustess with at least $1000.00 a month or a plan that paid a high percentage of unsecured then I could just forget it. This is another reason we just went for the Chapter 7.

I have been habitually visiting the ch.13 forum since my join date (8 months or so) and have never heard anyone say anything like this. Your payment is based on your dmi. There are many ch.13 debtors on this forum alone that are only paying a couple hundred bucks a month. One debtor only has a payment of $90/mo! Another of $125/mo. I, personally, am in a 0% payback plan. Unfortunately, your attorney sounds ignorant in regards to ch.13 bk. Never heard of student loan deferment? Ouch!

[screentest]

Thanks Tom! You could be right....I hope so.

Momofthree, I thought so as well. If I get squeezed on my expenses and there is some leftover to fund a 13 I would gladly volunteer it for the Chapter 13 and see what happens. It wont be more than a few hundred dollars if anything however.

My attorneys said it wont be worth it because I wont get confirmed unless I am offering more than 50% to unsecured. This is impossible for me as that would be more than $1200 a month just to cover that not to mention the chapter 13 fees and additional attorneys fees.

My attorneys office told me they do not like filing chapter 13. Maybe this is why they don't recommend me for one. I don't know.

Hey Tom, in another post you said you could have a bankruptcy removed from your credit report if it is dismissed. Does this include if it is dismissed without predjudice from the court or only voluntary dismissal by the debtor?

Thanks all!

ST

[backtoschool]

Thanks Tom! You could be right....I hope so.

Momofthree, I thought so as well. If I get squeezed on my expenses and there is some leftover to fund a 13 I would gladly volunteer it for the Chapter 13 and see what happens. It wont be more than a few hundred dollars if anything however.

My attorneys said it wont be worth it because I wont get confirmed unless I am offering more than 50% to unsecured. This is impossible for me as that would be more than $1200 a month just to cover that not to mention the chapter 13 fees and additional attorneys fees.

My attorneys office told me they do not like filing chapter 13. Maybe this is why they don't recommend me for one. I don't know.

Hey Tom, in another post you said you could have a bankruptcy removed from your credit report if it is dismissed. Does this include if it is dismissed without predjudice from the court or only voluntary dismissal by the debtor?

Thanks all!

ST

Tom is incorrect about bankruptcies being removed from credit reports when they are dismissed. Once you have filed, the bankruptcy remains on your credit report.

[tcreegan]

credit reports

Hi all,

The big 3 credit reporting agencies are a lot more pliable than you might think. My experience with them is to write letters, and keep bugging them. I have removed judgements w/o having them vacated, taken accounts off, had accounts included in a BK changed to 'closed by consumer' etc. The trick seems to be using written correspondence and being persistent. All three said "No" when I first contacted them, but after a year of letters back and forth they all had done what I requested. It sounds like a lot, but it is really just a letter every week or two. If you really need your credit score back it is worth the try.

Just my experience,

Tom in Colo

[backtoschool]

Hi all,

The big 3 credit reporting agencies are a lot more pliable than you might think. My experience with them is to write letters, and keep bugging them. I have removed judgements w/o having them vacated, taken accounts off, had accounts included in a BK changed to 'closed by consumer' etc. The trick seems to be using written correspondence and being persistent. All three said "No" when I first contacted them, but after a year of letters back and forth they all had done what I requested. It sounds like a lot, but it is really just a letter every week or two. If you really need your credit score back it is worth the try.

Just my experience,

Tom in Colo

What worked for you once, probably will not work for most of us. Your earlier post made it sound like it was a simple process to get a bk off reports when there is a dismissal. This is simply not true. Bks go on your reports when you file whether you dismiss the case or not and stay there for ten years.

[nomoneyhoney]

Hi Screentest,

It's official. Yesterday the US Trustee filed their motion of presumed abuse against our case. This was one day after our corrected means test and schedules were filed. Both showed negative DMI.

I don't want to give you any false hope, but unless your UST is way ahead of the paperwork piles, I would guess that they filed the presumption before they saw your corrected schedules.

Has anyone dealt with this before and won a presumption of abuse filing?

Search the forum, this is not uncommon.

Best of luck to you with this !

Tom in Colo

Hi Tom,
How many days does UST have to file presumption of abuse? Can they still file after 341? I've amended my schedule before my 341. Not sure if they can still object to the amended schedule. Just wondering if they can still question our expenses after trustee filed report of no distribution.

[justbroke]

How many days does UST have to file presumption of abuse? Can they still file after 341? I've amended my schedule before my 341. Not sure if they can still object to the amended schedule. Just wondering if they can still question our expenses after trustee filed report of no distribution.

The UST has 10 days from the 341 Meeting to file a notice/statement of presumed abuse. Then the UST ahs 30 days from the date of filing the statement, an actual motion to dismiss or a statement that the presumed abuse no longer exists, This is all part of the hyper-technical process. In about 50% of cases, the UST withdraws the presumed abuse statement.

I'm sorry to read about all these issues. I can't believe the things your attorney told you regarding 50% to unsecureds and other things. Absolutely nonsense.

[screentest]

Hi JustBroke,

This make sense then. They filed the presumption of abuse 9 days after the first 341, even though we were continued, and 1 day after we refiled all our schedules and new means test. Our rescheduled 341 is this Wednesday.


Maybe they didn't consider the new means or schedules yet. I guess I will find out tomorrow.

ST

[nomoneyhoney]

The UST has 10 days from the 341 Meeting to file a notice/statement of presumed abuse. Then the UST ahs 30 days from the date of filing the statement, an actual motion to dismiss or a statement that the presumed abuse no longer exists, This is all part of the hyper-technical process. In about 50% of cases, the UST withdraws the presumed abuse statement.

I'm sorry to read about all these issues. I can't believe the things your attorney told you regarding 50% to unsecureds and other things. Absolutely nonsense.

thanks justbroke. i'm holding my breath, the UST have four more days to file any objections. i can't wait until this week is over. if there is a notice, do they send it via snail mail or post it on pacer? just wondering. i'm addicted to pacer so if they post it through there at least i'll find out sooner. i check our mailbox once a week, mail man probably hates us. ;)

[justbroke]

You would usually already know if the UST had trouble with your case. Generally speaking, it's not like they hide things.