Mtg payment on means test, ride through?

[daytona]

I have a question surrounding home mortgage for you all. Well over median income, but high secured debt (mortgage) payment. If the mortage is included in the means test, easily pass, if not, its tougher.

If "in theory" your BK is supposed to be a "snapshot in time", then I would assume it should be included in means test. (about 2k over IRS standards for mortgage pmt) Has anyone had success with INCLUDING the pmt for means test, and schedule J, initially show intent to reaffirm, and then decide to not reaffirm within the 60days allowed and still be able to include the mtg pmt in the means test, and schedule J?

I'm really trying to avoid any future liability should I choose to not continue paying...meaning I might just ride through and continue paying until it's paid off, or give it up down the road if I have to. I know this can be done easily in 1st district, unfortunately I'm not in 1st district.

Appreciate in advance any opinions or links to cases surrounding this.

[tobee43]

i really don't know where people get this idea about it's a snapshot of your credit at the time of filing....

here's the example i give.....

if you owe chase 3k and are filing today....you put down chase at 3k...however, that same afternoon you were filling out the information for the petition...chase has just socked you with late fees and this fee and that...and just took everyone and their mothers for lunch on YOUR account so the amount by the end of the day is 4k....so NO it's not a snapshot...just a number to use at the time of filing.

the answer to your question is no, i am living proof of your questionm we surrendered our house but the payment was included on the means test....

If the mortage is included in the means test, easily pass, if not, its tougher.

[daytona]

Tobee, thanks. I am not thinking it is a snapshop of your credit, but a snapshot of a secured debt payment on a mortgage. Unsecureds are not included in means test or schedule J. So it appears the mortage is included in means test, but not allowed on schedule J if you don't "officially" reaffirm, correct?

The confusion comes in on this part partly due to; District 1 rules, cases in other districts I've seen where mortages were in foreclosure and were still allowed in schedule J WITH surrenders, and challenges under presumtion of abuse or totality of circumstanses with much larger payments that the TTEE's seem to have lost in every case...now maybe in these cases the debtor reaffirmed though...didn't look at actual schedules on Pacer.

[tobee43]

Tobee, thanks. I am not thinking it is a snapshop of your credit, but a snapshot of a secured debt payment on a mortgage. Unsecureds are not included in means test or schedule J. So it appears the mortage is included in means test, but not allowed on schedule J if you don't "officially" reaffirm, correct?

The confusion comes in on this part partly due to; District 1 rules, cases in other districts I've seen where mortages were in foreclosure and were still allowed in schedule J WITH surrenders, and challenges under presumtion of abuse or totality of circumstanses with much larger payments that the TTEE's seem to have lost in every case...now maybe in these cases the debtor reaffirmed though...didn't look at actual schedules on Pacer.

daytona...i don't know where your located...however, here in florida we have to be so careful....it doesn't ONLY go by districts...but counties in THOSE districts...and if we were in the next county over our UI would have counted in our means test. it's terrible here!

[tcreegan]

Hi all,

I think of the means test as what you have going into the BK and schedule J as what you are going to have coming out of the BK.

Simple thoughts for a simple guy.....

Tom in Colo

[debee]

Have you read through this thread?

http://www.bkforum.com/showthread.php?43222-1st-circuit-rules-mortgage-payments-count-towards-means-test-even-if-property-is-surr

[backtoschool]

Have you read through this thread?

http://www.bkforum.com/showthread.ph...operty-is-surr

It's still very much a district by district case, and the US trustee will still look closely to see if totality of circumstances apply, especially where the mortgage payment is way over the amount allowed by irs area standards, and the filer is well over the median income.

[tobee43]

Hi all,

I think of the means test as what you have going into the BK and schedule J as what you are going to have coming out of the BK.

Simple thoughts for a simple guy.....

Tom in Colo

your simple thoughts are always right on!! we here in florida only have approx 30 means tests to mutter through...you'd think it would be standard "state" at some point...however, i guess some counties have a different mean average of income ect. so, in way, it may be a fairer way to evaluation?

[tobee43]

It's still very much a district by district case, and the US trustee will still look closely to see if totality of circumstances apply, especially where the mortgage payment is way over the amount allowed by irs area standards, and the filer is well over the median income.

exactly correct....as usual!!

[daytona]

Have you read through this thread?

http://www.bkforum.com/showthread.ph...operty-is-surr

"I just found one in the 9th Circuit!!!" Thanks justbroke!!

http://www.orb.uscourts.gov/Judges/f...309_132820.pdf

Yes debee, but that is 1st circuit which seems to be the only court that allows. Justbroke, This is a very interesting case and goes to the heart of my problem. I will be way over unsecured limits if I have to go CH13, a Ch7 is going to be tight IF I can't include actual mortgage expenses (although I can probably still make it work). I have done some research on individual Ch11's and it's pretty "mind numbing" and EXPENSIVE to say the least. Not to mention it would be hard for me to fund at more then pennies on the dollar.

[tobee43]

"I just found one in the 9th Circuit!!!" Thanks justbroke!!

http://www.orb.uscourts.gov/Judges/f...309_132820.pdf

Yes debee, but that is 1st circuit which seems to be the only court that allows. Justbroke, This is a very interesting case and goes to the heart of my problem. I will be way over unsecured limits if I have to go CH13, a Ch7 is going to be tight IF I can't include actual mortgage expenses (although I can probably still make it work). I have done some research on individual Ch11's and it's pretty "mind numbing" and EXPENSIVE to say the least. Not to mention it would be hard for me to fund at more then pennies on the dollar.

daytona....just remember to attempt to check the state site...i'm in florida....the county NEXT to me (even tho the SAME district) didn't allow the mortgage payment to be on there...i'm looking at my petition and it absolutely INCLUDED by mortgage payment...even though we actually surrendered the house.

hope jb was able to zoom in on the exact county in the district...goosh they make it SO HARD!

jb....is the BEST!

[daytona]

Tobee- thx. They do like to make it hard...one would think Federal courts (and all courts that operate under them) would be consistant...I mean Federal law is Federal law, and obviusly state law is just that...so it will differ. Oh well, don't get me started on this stuff.
I know in my district I can use mtg for 707(b)(2) means test, the means test is not the real problem for me though it's the schedule J where a challenge could/would come for 707(b)(3) totality of circumstanses argument. Did you include your mtg in your schedule J also, or just the means test?

[tobee43]

i just pulled out the petition... it is listed on j....NOT the means test...we did not have to.

[tobee43]

Quote Originally Posted by tobee43 View Post
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.

i was pulling up a blog i had done...and i can't see your number, however, unless they are way off...you'll know if there is a presumption of abuse possibility...or at least you know if it's questionable....or should.

[debee]

[QUOTE=daytona;467452]"I just found one in the 9th Circuit!!!" Thanks justbroke!!

http://www.orb.uscourts.gov/Judges/f...309_132820.pdf

This link doesn't work for me, Daytona. Can you repost or pm?

I know that jb mentioned 9th circuit cases in the link I posted earlier in this thread, but not by name. I'm in the 9th and curious about what you've found. Thx.