Well, she filed her motion to dismiss-

[olivies]

The UST filed her presumption of abuse on 08/06.
Last Friday afternoon (09/03) she finally asks for further details on two of our expense categories. And then of course she wanted it by Tuesday (09/07).
We gathered our info over the weekend and emailed it to our attorney Tuesday a.m. The UST filed her motion to dismiss Tuesday.

Ugh. The hearing is scheduled for the end of the month. If she had any real objections and was really interested in doing anything other than just dismiss our case, I would think she would have asked for info earlier instead of at the last possible day. This is where I hope my attorney was worth the $ I paid. And of course- bad news always comes on Friday so I get to sit with this and not be able to discuss it with my attorney until Monday.

[tcreegan]

Sorry to hear that olivies, I hope your attorney is on top of things and gets it straightened out !

Tom in Colo

[olivies]

You and me both. I'ld be curious to see what her objections are. PACER shows that she's referring to the B22A and her "comparative analysis". Not sure exactly what to expect.

[despritfreya]

All is not lost. You have to realize that, by law, if the UST did not file the MTD when it was filed, she would have been precluded from filing it.

11 USC 704(b) requires the UST to file a Notice of Presumed Abuse within 10 days of the 341 meeting. If a MTD is to be filed it MUST be filed within 30 days of filing the Notice or Presumed Abuse.

I will assume the MTD was filed on either the 29th or 30th day. The UST did what she needed to do to preserve her rights. That does not mean that she is going to pursue the Motion if she makes a determination that all of your ducks are in a row.

[ConfusedinOC]

Are the 10 days working or calendar day?

[nfreeze]

confusedinOC- it reads as follows: (b)

(1) With respect to a debtor who is an individual in a case under this chapter--

(A) the United States trustee (or the bankruptcy administrator, if any) shall review all materials filed by the debtor and, not later than 10 days after the date of the first meeting of creditors, file with the court a statement as to whether the debtor's case would be presumed to be an abuse under section 707(b); and

(B) not later than 5 days after receiving a statement under subparagraph (A), the court shall provide a copy of the statement to all creditors.


It looks like calendar days to me. We are almost on the same timeline.

[olivies]

All is not lost. You have to realize that, by law, if the UST did not file the MTD when it was filed, she would have been precluded from filing it.

11 USC 704(b) requires the UST to file a Notice of Presumed Abuse within 10 days of the 341 meeting. If a MTD is to be filed it MUST be filed within 30 days of filing the Notice or Presumed Abuse.

I will assume the MTD was filed on either the 29th or 30th day. The UST did what she needed to do to preserve her rights. That does not mean that she is going to pursue the Motion if she makes a determination that all of your ducks are in a row.

I hope so. Yes- the MTD was filed on the 30th day. :/ I just really need this to work for us. I can't live the rest of my life hounded and hiding and feeling like we are never ever going to get out of this hole.

[despritfreya]

In response to:

"I just really need this to work for us. I can't live the rest of my life hounded and hiding."

Ok, listen, you are not going to live the rest of your life like that. The biggest problem I have with my "boarder-line" clients is that they think if they can't do a 7 the world is going to fall apart. Garbage. Even if the MTD is granted you are not on the losing end. There is no losing end. If you cannot file a 7 you can file an 11 or 13. Thousands of folks do and survive just fine. You may not want to file a bk that will last for 5 years but you cannot always get what you want and a 5 year bk is probably better than no bk. So, as I tell my clients, you take your shot at the 7 and if it does not work you do a 13 (if over the debt limit then an 11).

[outsidetool]

I don't know much about your case, but I went through a motion to dismiss also. The trustee's "accountant" did his own analysis and felt that my numbers were no good. Before the hearing date my atty had convinced them that their numbers were the crazy ones...and forcing me into a Ch 13 that I'd just default on shortly was not a good plan. Just hang in there.

[screentest]

I couldnt agree more with those that have posted above. I am one county over from you, in the same central district and facing the exact same US trustee presumption of abuse challenges right now. I am also over the median. My attorneys said they have seen a major change in the US trustees office this year in this district and they are getting very aggressive with over the median filers. (Lucky us ...huh?)

Like you, I also believe a chapter 7 is the only chance I will get a fresh start as I could just barely make a chapter 13 payment if I squeezed ALL my numbers down. I dont qualify anyway as my debt load is far above the allowed chapter 13 amount. I dont know anything about a chapter 11.

I am preparing to reenter creditor world and having to deal with dodging lawsuits etc if thing fall apart so I know how you feel. These boards are a great resource for some sanity in all this and despritfreya gives very logical, experienced advise that has helped me through many sleepless nights already.

Incidentally when I asked my attorneys what our strategy is going to be in handling the motion to dismiss...he shruged his shoulders and said "I dont know, I have never had to handle one before."
Not exactly encouraging.


Hang in there....its a rough ride.

ST

[backtoschool]

Wow screentest, that is horrible about your attorney!

A chapter 11 is expensive and takes a long time to sort out, but it is not the end of the world if you do not get a chapter 7. One of the biggest differences in a chapter 11, (versus a chap 13) is that your plan has to be confirmed by a committee comprised of your largest creditors. But even your creditors know that you cannot wring water from a stone, and will be predisposed to getting something instead of nothing. You also can force a plan that your creditors won't approve, by meeting certain criteria, but it is expensive and takes time.

Hopefully your US trustee will get overworked and miss a filing deadline or something, and you will get your chapter 7.

[olivies]

Just viewed the documents on Pacer. The US Trustee is actually attempting to deny us our $665 rent variance. The standard for a family of 8 in our county is $1060. Our actual at the time was $1725, and it was definitely not luxurious and took a while for us to find.

She is also saying we are over witholding on our income taxes by $391.46 based on our actual taxes due for standard deductions for our income. However, she's not account for the fact that we are losing a deduction for our 17yo son this year because he will have earned enough $ in his part time job that we can't claim him on our taxes and the child credit for our now 16yo daughter. We calculated our witholding online at the IRS site, I am sure they are accurate.

Also: On Line 24, the Debtors claimed an ownership expense for a second car of$496. Since the Debtors make a payment of $305 for this car, that amount was deducted from the amount claimed, thereby reducing the amount on line 24 to $191.00. ....... However it's just added back in here: On line 42, the Debtors included an expense of $446.91 per month for a car payment. That amount was increased by $305 to $751.81, to include the amount paid on a second automobile loan for an automobile used by the Debtors.

Now- at first glance it looks like a wash. But this does make a difference because the car is not mine- it is titled, registered, and financed by my mother and in her name only. It has never been in my name, and was not purchased for my purpose. We needed a car, she needed to not have a car payment, so she gave the car to us to use and we send HER the car payment of $305. But all operational expenses are ours. And the car is 6+ years and has more than 75K miles on it, so it could possibly qualify for an additional $200/mo operational expense (which I did not know about until I saw the little box on the top of her analysis sheet). Thoughts on this? Our attorney said the loan is not ours, not our responsibility, and we are under no legal obligation to pay it and in reality mom isn't going to fly down from CT to repossess the vehicle if we decide to stop paying her and only if SHE doesn't make her loan payments is the car going to be repossessed. However, the vehicle is in our possession and we can prove operational costs so we should be allowed the full operational expense and that Congress was symantically clear in delineating the difference as "ownership expense" and "expenses for the operation of a vehicle".

Then there's this- which I'm really unclear on:
20. At line 40, the Debtors include an expense for charitable contributions of $1,537.05 per month. This amount was reduced by $1,097.05 to $440 per month, based in part on the amount listed on Schedule J of $404, and in part on the supplemental information provided by the Debtors to the U.S. Trustee. Now, just prior to the 341 our attorney told us he noticed that there was an error on the means test. The total for the section where charitable contributions are listed were accidentally all listed as contributions. We all laughed at the idea. It's actually $440 per month for charitable and $425 for educational expenses (I thought we had put much less. Our 9 month average this year has calculated to $465/month so we did lowball it, but not as much as I thought). For some reason she dropped that to 137.50 and shows that we put the same on our Means Test but I'm looking at our Means Test and she's wrong.

Childcare we got killed on too, because we had been planning on $348/month, which would be historically accurate. But since we couldn't do any summer care or camps for the kids (no money with having to pay the attorney for filing and moving) Our actual transactions this year reflect an average of about $170 a month. So that's all I could prove to her. I know that's still wrong though because Preschool alone for my son is $120/month, and child care for the other 3 kids who are of age to need it is easily more than $50 a month. We just had to eliminate it all this summer. :/ And we had $73 listed for life insurance she has that we had $53 listed. I'm at a loss for how her numbers are so off from what is actually on my B22 for more than one category. She has things listed under the column of what "debtor listed" and it's not what we listed. ???

It shows monthly disposable income as $1265. So if I DID do a 13, that would be my plan payment, correct? However, I don't understand how above that in her analysis it shows an estimated Ch13 plan payment of $2863 ?? How can these numbers be that far apart? (even if the estimated Trustee fee alone is almost $270) Unless it's accounting for the car payments, and in that case our vehicle we're surrendering, my mom's vehicle- well I've already argued that I have no secured claim to the vehicle so how can I possibly work HER loan into OUR plan?

Anyone who ever says that Bankruptcy is an easy out is a moron- because there is nothing easy about this process and fighting for this.