HELP...motion to dismiss on day 60

[garyp15]

my attorney feels that the trustee may file a motion to dismiss for totality of circumstance on day 60.

Question: If the motion doesn't show up on Pacer by midnight on day 60 does that mean I can breathe again?

[Fallonedward]

Why does your attorney feel that the trustee may file to dismiss for totality of circumstance?

[garyp15]

Why does your attorney feel that the trustee may file to dismiss for totality of circumstance?

Apparently, the trustee has been calling my attorney's office trying to get them to file a motion to dismiss. The trustee has also asked for forward looking documents...ie paychecks since filing.

I also find it strange that the trustee has asked my lawyer to file a motion to dismiss.

Any thoughts would be welcomed!

[garyp15]

Apparently, the trustee has been calling my attorney's office trying to get them to file a motion to dismiss. The trustee has also asked for forward looking documents...ie paychecks since filing.

I also find it strange that the trustee has asked my lawyer to file a motion to dismiss.

Any thoughts would be welcomed!

Also, my attorney said it is not uncommon for the trustee to file a motion to dismiss near the end of the 60 period

[tobee43]

well you used the term"totality of circumstances"

appeals court adopted "totality of circumstances" test for bankruptcy proceedings to determine if a debtor has engaged in substantial abuse of the process by filing for chapter 7 bankruptcy, when in fact there is sufficient income to repay debts.

you also hear people use presumption of abuse....sounds terrible but it only means they think you may be able to afford to pay some of your creditors or a payment plan may be the way the court thinks you have to go.

so, at this point...and this is purely speculation, it may be the trustee has reviewed your situation and either feels there are some assets...or maybe believes you can handle a chapter 13....

it was decided in a past decision and affirmed. not an exact quote....but close to the best i can recall at the moment...for a further explanation.

"the court joins other circuits in adopting the "totality of the circumstances" test as the measure of substantial abuse under the bankruptcy code. this is a flexible standard adopted by congress to allow bankruptcy courts to consider the factors involved in each case and to prevent abuse of chapter 7 filings. When there is evidence that the consumer can pay their debts, there is likely to be found substantial abuse."

pacer many times is NOT up to date with it's information...so there will be times you need to wait for the information to get updated...sometimes it's not quite as timely as you would so i would not count on it. your atty should have the answers before pacer does.

[garyp15]

well you used the term"totality of circumstances"

appeals court adopted "totality of circumstances" test for bankruptcy proceedings to determine if a debtor has engaged in substantial abuse of the process by filing for chapter 7 bankruptcy, when in fact there is sufficient income to repay debts.

you also hear people use presumption of abuse....sounds terrible but it only means they think you may be able to afford to pay some of your creditors or a payment plan may be the way the court thinks you have to go.

so, at this point...and this is purely speculation, it may be the trustee has reviewed your situation and either feels there are some assets...or maybe believes you can handle a chapter 13....

it was decided in a past decision and affirmed. not an exact quote....but close to the best i can recall at the moment...for a further explanation.

"the court joins other circuits in adopting the "totality of the circumstances" test as the measure of substantial abuse under the bankruptcy code. this is a flexible standard adopted by congress to allow bankruptcy courts to consider the factors involved in each case and to prevent abuse of chapter 7 filings. When there is evidence that the consumer can pay their debts, there is likely to be found substantial abuse."

pacer many times is NOT up to date with it's information...so there will be times you need to wait for the information to get updated...sometimes it's not quite as timely as you would so i would not count on it. your atty should have the answers before pacer does.

Tobee...thanks for the info. Another question is...does the trustee have to let my attorney by know, by day 60, if they will be taking further action.

[tobee43]

Tobee...thanks for the info. Another question is...does the trustee have to let my attorney by know, by day 60, if they will be taking further action.

no problem, just hope it helps you a bit. i understand your frustration.

usually an atty office is in contact with the trustees office...so MOST of the time they will know prior to the info hitting pacer.

does the trustee have to let your atty know....well...normally its an atty atty relationship and they communicate with each other...in as much as the "have to" rule...it's usually a courtesy they bestow amongst each other. your atty's office can also call the court clerk to get updated information if the trustee's office does not contact your atty.

my atty's office was in consent contact with the trustees office....but apparently that was just the type of relationship they had...(lucky for me, i believe).

[tcreegan]

Hi garyp15,

it strikes me as really odd that the trustee would ask your atty to file a motion to dismiss......they know your atty is backing you up, why would your atty want to file a motion to dismiss?

Is this the BK trustee or the USTrustee?

Just seems odd to me.....

Tom in Colo

[garyp15]

Hi garyp15,

it strikes me as really odd that the trustee would ask your atty to file a motion to dismiss......they know your atty is backing you up, why would your atty want to file a motion to dismiss?

Is this the BK trustee or the USTrustee?



Just seems odd to me.....

Tom in Colo

tcreegan...yeah seemed really odd to me...justbroke said it isn't uncommon because it is easier for us to file it than the trustee...see justbroke's comments on the thread" day 58 and no report of no distribution". BTW..it is UST

[backtoschool]

Usually when the US trustee asks your attorney to file the motion to dismiss, what the US trustee is asking for is for you to voluntarily convert to a chap 13. There is no reason to do this. If the US Trustee cannot get his/her act together to file the motion to dismiss they will simply ask for an extension of time, or perhaps you will get lucky and they will miss the deadline.

I think the US trustee is just being lazy here and playing chicken with you, trying to get you to volunteer going into a chap 13. Make the US trustee do all the work.