Ahhhh Thought I was in the clear!! Presumption of Abuse pops up again!

[lunasgal]

Hi All!

So I had my 341 end of Aug- It went well and the trustee posted the same day that I was report of no distribution, no funds. The US Trustee didn't show up.. I was labeled as presumption of abuse due to a large severance payment, but have been using that to pay mortgage and feed my rescue horses...

Anyway I decided to check Pacer today and I came across this- Filed: 09/21/2010
Last Updated: 09/22/2010
Entered: 09/21/2010
Entered By: XXXX
Event Name(s): UST 10-day Statement: Abuse Presumed
Full Docket Text:
The United States trustee has reviewed all materials filed by the debtor and has determined that the debtor's case is presumed to be an abuse under Section 707(b). Re-Audit date: 10/22/2010. Filed by U.S. Trustee United States Trustee. (XX) Modified on 9/22/2010 to note: The Clerk's Office Re: UST 10- day Stmt: abuse presumed was not sent out, due to XXXX filed the UST's Statement that Motion to Dismiss is Not appropriate was filed on the same day as the 10 day Statement. XX saw no need to send out the notice. (lmk)


I am still awaiting discharge am 25 days since my 341.. The trustee posted this 21 days in..My status still says awaiting discharge...

I am worried as I just received a early pension payment but am rolling it back into my retirement account next week.. Was hoping to hold on to it till Oct 1st to earn some interest on it in my high interest checking account- I was laid off in March and am earning 1/4 of my salary, I just missed my first house payment due to I can't afford it

I will call my lawyer tomorrow, but it sounds like the US trustee dropped the ball not filing within the 10 days? I don't know I am stressed again, but what can I do!! I am going to deposit the pension into my Charles Sch retirement account Monday, and since it was retirement I think I will be ok if they audit my checking as I can show where the funds came from

Thanks for reading, any suggestions or thoughts appreciated!

[Fallonedward]

Luna: We received a large severance payment as well in April and that is why our attorney told us we need to wait till November till it rolls off, since this severance was used to pay all of our household expenses just like our paychecks would have been.

Good luck

Hi All!

So I had my 341 end of Aug- It went well and the trustee posted the same day that I was report of no distribution, no funds. The US Trustee didn't show up.. I was labeled as presumption of abuse due to a large severance payment, but have been using that to pay mortgage and feed my rescue horses...

Anyway I decided to check Pacer today and I came across this- Filed: 09/21/2010
Last Updated: 09/22/2010
Entered: 09/21/2010
Entered By: XXXX
Event Name(s): UST 10-day Statement: Abuse Presumed
Full Docket Text:
The United States trustee has reviewed all materials filed by the debtor and has determined that the debtor's case is presumed to be an abuse under Section 707(b). Re-Audit date: 10/22/2010. Filed by U.S. Trustee United States Trustee. (XX) Modified on 9/22/2010 to note: The Clerk's Office Re: UST 10- day Stmt: abuse presumed was not sent out, due to XXXX filed the UST's Statement that Motion to Dismiss is Not appropriate was filed on the same day as the 10 day Statement. XX saw no need to send out the notice. (lmk)


I am still awaiting discharge am 25 days since my 341.. The trustee posted this 21 days in..My status still says awaiting discharge...

I am worried as I just received a early pension payment but am rolling it back into my retirement account next week.. Was hoping to hold on to it till Oct 1st to earn some interest on it in my high interest checking account- I was laid off in March and am earning 1/4 of my salary, I just missed my first house payment due to I can't afford it

I will call my lawyer tomorrow, but it sounds like the US trustee dropped the ball not filing within the 10 days? I don't know I am stressed again, but what can I do!! I am going to deposit the pension into my Charles Sch retirement account Monday, and since it was retirement I think I will be ok if they audit my checking as I can show where the funds came from

Thanks for reading, any suggestions or thoughts appreciated!

[lunasgal]

Wait a minute... I think I might have read this wrong? God I hope so I think when the 2nd paragraph says :The Clerk's Office Re: UST 10- day Stmt: abuse presumed was not sent out, due to XXXX filed the UST's Statement that Motion to Dismiss is Not appropriate was filed on the same day as the 10 day Statement. XX saw no need to send out the notice. (lmk) )

I think this means the UST said the motion to dismiss is not appropriate and that is why the presumption of abuse wasn't sent out after the filing/341? This is why my case is still waiting discharge? Bah I am a mess and need sleep but too worked up... I think I am ok by the 2nd paragraph but the UST will still check my case before it is discharged??

[lunasgal]

And hi again Fallon- I so wish my attorney would have waited but he told me based on my income now I would be fine...So stressful!!! ;(

[ccsjoe]

lunasgal, I think you're ok from the POA standpoint. As you correctly pointed out, reread your 2nd paragraph. The UST always has until discharge to file a motion for anything other than abuse under 707b.

[tobee43]

yes, i think you misread the notice...

however, call your atty FIRST thing this morning...mainly because their office should have been aware of the situation prior to you....

i'm certain it will be all straighten out.

[backtoschool]

A large severance payment counts as income and you need to wait six months for it to fall off your income look back period, or it is highly likely that the US Trustee will win the presumption of abuse and try to kick you into a 13.

[tobee43]

A large severance payment counts as income and you need to wait six months for it to fall off your income look back period, or it is highly likely that the US Trustee will win the presumption of abuse and try to kick you into a 13.

agreed.....make the call!

hope it works out for you...i'm sure it will.

[lunasgal]

Thanks all for your advice! I was pegged as presumption of abuse from the start, my lawyer said I will be fine due to the low salary I am making now and my severance was 25k putting me over the median.. My lawyer said the UST was just covering her tracks- She posted presumption of abuse, then the same day: United States Trustee's Statement that a Motion to Dismiss is Not Appropriate Filed by U.S. Trustee United States Trustee, as it was over the 10 day mark and lucky she agreed with the Trustee... Now I just continue to wait and hope that the UST is done with my case! I am 25days in the waiting for discharge status so I am going to pray that everything continues to go well!! <3

[backtoschool]

If the trustee posted a statement stating that presumption of abuse is not appropriate, then I think you are on your way to discharge. I will keep my fingers crossed for you....

[lunasgal]

I am totally being OCD today.... Don't know why! I need to trust my lawyer- I just found this online and I think it should put me to rest based on the last statement: In certain circumstances, the U.S. Trustee will not dismiss a case in which the Means Test Process resulted in a MEANSYES flag. When the U.S. Trustee files the UST 30 day statement - motion to dismiss is not appropriate, the MEANSYES flag remains. Technically, abuse exists. However, for the specific reason stated in the document, the trustee will not dismiss the case.

[lunasgal]

Ok I looked up the documents in Pacer and this is what I found- I am a dummy and shouldn't be drinking wine and reading Pacer late at night putting my self in a panic!!! I think I am in the clear, at least for now based on the below letter- Hope this will help others with my silliness!

1. XXX ("Debtor") commenced this case by filing her voluntary
chapter 7 petition on July 31, 2010. Debtor’s initial meeting of creditors was held on
August 30, 2010.
2. Debtor is an individual with primarily consumer debt.
3. The United States Trustee filed a notice that the case is presumed to be an
abuse pursuant to section 707(b)(2).
4. 11 U.S.C. § 704(b)(2) in pertinent part, provides:
The United States trustee (or bankruptcy administrator, if
any) shall, not later than 30 days after the date of filing a
statement under paragraph (1), either file a motion to
dismiss or convert under section707(b), or file a statement
setting forth the reasons the United States trustee (or the
bankruptcy administrator, if any) does not consider such a
motion to be appropriate, if the United States trustee (or the
bankruptcy administrator, if any) determines that the
debtor's case should be presumed to be an abuse under
section 707(b) and the product of the debtor's current
monthly income, multiplied by 12 is not less than...(B) in
the case of a debtor in a household of 2 or more individuals,
the highest median family income of the applicable state for
a family of the same number or fewer individuals.
Case
5. Based upon currently available information, the United States Trustee will
not file a motion to dismiss this case under section 707(b)(2), because the United States
Trustee does not consider such a motion to be appropriate. Specifically, notwithstanding
the presumption of abuse under section 707(b)(2), compelling circumstances exist in this
case that justify adjustment to Debtor’s CMI and that, after such adjustment, her monthly
disposable income would be below the threshold dollar amount that triggered the
presumption of abuse in this case.
6. In particular, the Debtor provided documentation that the Debtor has
reduced post-petition income due to a change in employment.
7. After adjusting Debtor’s income and expenses to reflect these
circumstances, her monthly disposable income is below the threshold dollar amount that
triggered the presumption of abuse in this case.
WHEREFORE, for the foregoing reasons, the United States Trustee does not
consider a motion to dismiss under 11 U.S.C. § 707(b)(2) to be appropriate in this case.
Respectfully Submitted

[backtoschool]

This means you are good to go! The US Trustee is not dismissing your case.

[tyson24]

That is great! So happy for you!

[olivies]

FallonEdward- The USSC Lanning ruling may have changed all that. Check it out.