motion to dimiss

[blockhead]

I got audited by UST and had to drop off a boxload of stuff (checks, accounts, small business P&Ls - everything - along with a long affidavit). It took them 2 mths to digest it and give me a green light (60 days from the 341) - none of this showed up on Pacer btw. What it did do is delay the discharge as the Ch7 trustee put me on the back burner until the UST time to object had expired. so it took 7 mths in all from filing to discharge, 2 mths of which was mental torture while the UST was silent.

[blockhead]

Maybe mine was the exception then, as it was the UST that asked me to sign the release, and it was not a subpoena. Maybe varies district to district.

Here is the letter sent by the UST for debtor signature


UNITED STATES DEPARTMENT OF JUSTICE
Washington, D.C. 20530
CUSTOMER CONSENT AND AUTHORIZATION
FOR ACCESS TO FINANCIAL RECORDS (446 B, Form DOJ-162)

I, (debtor name), hereby authorize:

(Name and address of credit card company)

to disclose the following financial records:

All documents including, but not limited to: account applications, signature cards and for the period of Dec 2006 to the present, all statements, cash advance transactions, transfers, checks, relating to any account in the name of: (Debtor name, Debtor SSN) , or any other account associated with the before mentioned names or social security number;
to the United States Trustee, her Assistants, Agents and Employees for the following purpose(s):

To examine any and all documents relating to all accounts associated with (name of debtor) , in connection with a legal proceeding.

I understand that this authorization may be revoked by me in writing at any time before my records, as described above, are disclosed, and that this authorization is valid for no more than three months from the date of my signature


Signed (Debtor)

Notary _________

[justbroke]

Interesting that the OUST didn't use it's subpoena power. Maybe it's better to ask politely with the debtor's signature first. (I don't know the answer to this.)

[blockhead]

Well it's gotta be cheaper on resources to ask for debtor permission. I doubt many people refuse :-)

[justbroke]

Well it's gotta be cheaper on resources to ask for debtor permission. I doubt many people refuse :-)

If you've ever seen their letterhead... "Department of Justice"... that's enough to scare most creditors.

[blockhead]

Scared the crap out of me too!

[italiana66]

hi guys..well we sent all the paperwork on Aug 11th and the trustee still hasn't made a decision...my lawyer sent him a letter and the response was that hopefully he was going to look through everything and give us an answer by the end of the week...well that was 2 weeks ago and still no answer....this is my question..how long does the trustee have to either dismiss or discharge? we filed back in feb2010

[Fallonedward]

so does every over median chapter 7 filer get this type of grilling. Crap I think I will have a heart attack if this happens to us...We are only over median because of the UI...dang so much to worry about

we are working with an attorney....that presumption of abuse was 11usc707...i was just wondering what they could do because we didn't have cc statements from the past year or the check copies....that's all the doc we didnt have in our possession...our income is higher than the average for NM...but our DMI is negative 800.00....my question is..how long does the trustee have to make a decision or can he take his sweet time?

[justbroke]

so does every over median chapter 7 filer get this type of grilling. Crap I think I will have a heart attack if this happens to us...We are only over median because of the UI...dang so much to worry about

No. It depends on what the United States Trustee (UST) finds in relation to your expenses. You will be scrutinized though. You (and your attorney) just need to make sure your expenses are defensible.

[BKlooker]

yep, key is solid defenses and timing. The best bet, in speaking to my attorney, is be sure to provide everything they need upfront on try #1. This will reduce the amount of "second-guessing" that would need to go on afterwards.

It's like taxes.....if you paint a picture such that your finances are something less than dire, be prepared to defend every cup of starbucks (exaggerating of course, but yes you will get more looking around). If you paint a picture that you are in dire straights and provide detailed info upfront to support it, you are less likely to get the "deep-probe" because it would be more par-for-the-course in BK land.

Whatever you do, be HONEST! Honestly will at best get your debts in check and at worst mean you will have to explore other options for debt management. Lying can get you time in federal prison.

Also, be sure your lawyer is staying on top of things...from the sound of it, they may or may not be.

[Fallonedward]

I have receipts for everything and my medical is thru the roof with a type 1 diabetic kid

No. It depends on what the United States Trustee (UST) finds in relation to your expenses. You will be scrutinized though. You (and your attorney) just need to make sure your expenses are defensible.

[tobee43]

so does every over median chapter 7 filer get this type of grilling. Crap I think I will have a heart attack if this happens to us...We are only over median because of the UI...dang so much to worry about

no...it does not...things happen and it's not as usual as one may think...sometimes there are red flags that just go up....however, usually it because of assets or something that is questionable. don't worry over this...it will fine with you.

[justbroke]

I have receipts for everything and my medical is thru the roof with a type 1 diabetic kid

You have a legitimate reason to have higher expenses and even to "rebut" the presumption of abuse! Medical reasons are one of only a few reasons where the UST will back off, provided that the documentation supports the expense.

I see no issues.

[lunasgal]

I was above the median based on the last six months and was labeled presumption of abuse- But based on my current income even though I got a big severance check, the US Attorney dismissed my presumption of abuse label based on my income... ... I was so worried, buy my case will be at the 60 day mark on Friday, and I am waiting for discharge... ( Still a little worried but I believe I will be fine as the US Trustee filed their motion to dismiss not appropriate 3 weeks ago )

[Fallonedward]

Thanks for sharing as we are in a similar situation. We received severance payout in April and now in November when we file the severance will have dropped off our six month look back and one will just see my income and the hubby's UI. I am hoping we will be ok as well.

I was above the median based on the last six months and was labeled presumption of abuse- But based on my current income even though I got a big severance check, the US Attorney dismissed my presumption of abuse label based on my income... ... I was so worried, buy my case will be at the 60 day mark on Friday, and I am waiting for discharge... ( Still a little worried but I believe I will be fine as the US Trustee filed their motion to dismiss not appropriate 3 weeks ago )