What if Trustee Doesn't Follow-Up after filing Presumption?

[clevelandmom]

Hi Everyone. . .Happy New Year!

We filed Ch. 7 on 11/8/10 - 341 held 12/13/10, Trustee's Report of No Distribution on 12/14/10. Then on 12/15/10 the US Trustee filed a Presumption of Abuse because we failed the Means Test. We knew that would happen too, as husband got laid off in August, 2010. His being unemployed is the reason we ARE able to pass Means Test now, but we filed early because I was about to be garnished.

About 4 days after the UST filed their Presumption, our attorney called and said the UST just needs to know the date he became unemployed. That is all, over and out. Done. We haven't heard a peep from anyone since. The UST's deadline (they have 30 days from the date they file the presumption, right?) is this Friday to file a Motion to Dismiss is Inappropriate, or a Mot. to Dismiss, or a Mot. to Convert, or Withdraw the Presumption. . .or whatever. I have this strange gut feeling that she will file nothing - I don't know why. Anyway - if she files nothing, does that mean she no longer is allowed to file a Dismissal? I still have a month to go in the 60 day club, but of course I want this overwith - just like everyone else. My question is - has anyone dealt with a UST not filing anything after filing a Presumption of Abuse and still getting their discharge? Thanks for all your help!

[justbroke]

Anyway - if she files nothing, does that mean she no longer is allowed to file a Dismissal?

For the Presumption nof Abuse or another Abuse under 707(b), the UST has until the expiration of the 30 days which should be Friday (1/14/2011). They have to file something though, as it is a requirement. They either have to file a notice that the presumption has been rebutted or overcome, or file a motion to dismiss for abuse.

The UST still have the "wildcard" 707(b)(3) motion for Totality of Circumstances until 60 days after the first scheduled 341 meeting.

My question is - has anyone dealt with a UST not filing anything after filing a Presumption of Abuse and still getting their discharge?

Many people have had this happen where the UST "preserves" the right by filing the notice, works with the debtor or debtor's attorney, and then withdraws it after they are satisfied.

[screentest]

This is my situation right now as well; however I am way, way past the 60 day bar date. We had a 707(b) presumption filed on us right after the 341, discussions on the phone with the US trustee and then nothing ever happened. No motion to dismiss or convert came and no motion to remove the 707(b) flag. We then waited out the rest of the 60 days without any contact from anyone.

We are now almost 90 days past the 60 day wait and the case still shows awaiting discharge. The 707 (b) flag is still in place and the clerk of the court will not give us or our attorneys any information on what is holding up our discharge. There is nothing the trustee, who has been excused from the case, or the OUST can do as all time to extend or file a motion in this case has long since expired so I just wait and wait and wait.............ridiculous.

ST

[clevelandmom]

Wow Screen Test, that sucks! What was the reason they filed a presumption of abuse for you?

[screentest]

Lawyers submitted a grossly inaccurate means test. They underestimated my income by almost 1k a month. I caught it and told them to fix it however they stated "don't worry, nobody ever checks." 9 days after the 341....boom...presumption of abuse and the OUST on the phone going what they hell?? We fixed the means and resubmitted, OUST said no problem looks good and then dead silence on the case since.

ST

[clevelandmom]

Somehow this just doesn't seem right or fair. I assume you have asked your attorney. But since they were such morons in the first place, do you trust their response? (If they gave you one?) I think if I have been waiting as long as you now, I would send a note to the Trustee myself, and if there is no response, it's time to get the Judge involved. It's been 3 months since you had your 341 and these people need to sh** or get off the pot!

[screentest]

I couldn't agree more. The only excuse I get is the court is really backed up. It's actually been almost 5 month since my 341.

[olivies]

Wow Screentest- I thought the UST dragging my case out was bad. You truly are in limbo. Hope it resolves soon!