Mtg payment on means test, ride through?

[researchnerd]

We specifically said our intention was to surrender the house, yet the UST allowed us to use our mortgage payment on the means test. Like you, we are above median but had negative DMI -- and with the addition of the mortgage payment, WAY negative DMI. The case our UST cited was specific to my jurisdiction, but on Page 2 there is a long list of precedent cases in other states, and you may be able to find something similar in your area: In re Hummel, Case No. 06-68931

The discrete legal issue under §707(b)(2) is whether, on the Means Test Form, a debtor can deduct as an expense the full amount of payment to a secured creditor when Debtor intends to surrender the collateral. Although the case law is split, the majority appears to resolve that issue in favor of the debtor.The majority position is persuasive.

[daytona]

It appears to be pretty clear that a Mtg CAN BE included in the means test and survive 707(b)(2) objections just about everywhere...the issue that is less clear is can it survive 707(b)(3) objections specific to schedule J. Here is the link again to the 9th, this person had a positive 740/mo DMI, but had unsecureds over Ch13 limits and a unsecured "A/P" wanted a consumer Ch11...the judge ruled that the projected payback was low to unsecureds coupled with the additional costs and admin expenses to a Ch11 made it impractical and gave the debtor a Ch7 discharge.

http://www.orb.uscourts.gov/Judges/file_attachment/08-33275-rld7_190309_132820.pdf

[backtoschool]

This is totally district specific. Just as many districts/trustees throw out the expense as allow it.

[tcreegan]

Hi all,

the judge ruled that the projected payback was low to unsecureds coupled with the additional costs and admin expenses to a Ch11 made it impractical and gave the debtor a Ch7 discharge.

I've read several cases where this happened with Ch 7 vs Ch 13. Court said a Ch 13 would be pointless so a Ch 7 was allowed despite being slightly over the limit.

the issue that is less clear is can it survive 707(b)(3) objections specific to schedule J

Does anyone know if the DOJ/UST has published their position on Sch J items like they have for the means test?

Would be handy around here....

Tom in Colo

[daytona]

Does anyone know if the DOJ/UST has published their position on Sch J items like they have for the means test?

Would be handy around here....

Amen Tom, Amen..... I have never found anything published here...it seems some ttee's don't even bother with a "totallity" objection while others do, and like always it seems there is huge dispersion between judges and courts on this issue.

Backtoschool; you're right it is specific for means test, but it seems the "majority" currently do allow it in there...but it sounds like the Supreme Court plans to take this on and decide this very issue some time late next yr...