Statement and notice of presumed abuse...please help!

[csonly]

So my fears became a reality today, 13 days after our 341, no asset, no distribution, we were hit with this statement on Pacer. Called my attorney, he wasn't aware of it when I called, which was later in the day and it sounded like he wasn't in his office, so hopefully tomorrow he can let me know more, but not holding my breath. We are over median but passed the mean's test which I think was around -$125 and -$188 (there was the means and another report he did but forget the name of it). Any input or advise would be greatly appreciated. To me it sounds like the issue is being over median.

Here is what it says (1) The Debtors' case should be presumed to be an abuse under 11 USC 704(b)(2) and (2) the product of the Debtors' current monthly income, multiplied by 12, is not less than the requirement specified in 11 U.S.C. 704(b)(2)(A) or (B).

If they make us convert to a 13, I can't even imagine how we would fund that successfully. We are over median because my husband works 2 jobs so we could make ends meet, but without paying credit card debt, he wants to quit that part-time job but now I don't think he will be able to. I'm totally stressed out about this. I want my lawyer to go to bat and try to keep us in the 7, but to me, I'm wondering if it gives him dollar signs to make more money. He said a 13 is $3500, so in my mind, why would he help me stay in a 7 when he could make more money if they make us convert. I'm totally disgusted with this mess. I so much need your help.

Oh, if you really want to hear something ironic, the day of our 341 meeting, when the "panel" trustee asked where my husband was employed and my husband told him, the trustee had a blank look, and said out loud... why does that sound familiar? Then the trustee offered, "oh yes, I'm foreclosing on that." Of course, this was a 110% surprise to us, so in the end, my husband may end up without a job on top of all this.

We did not strategically plan when to file, we just knew it was time and filed when we hit rock bottom. I didn't find this forum until after we filed, so I have to say, I would have done things much different if I had known then what I know now. Again, I really need the support and advise from this forum.

[ValleYum]

I thought the Trustee had no longer than 10 days after the date of the first meeting of creditors to file with the court a statement as to whether the debtor's case would be presumed to be an abuse under section 707(b)??

I am so sorry csonly. {{{hugs}}}

[dneil]

I thought the Trustee had no longer than 10 days after the date of the first meeting of creditors to file with the court a statement as to whether the debtor's case would be presumed to be an abuse under section 707(b)??

I am so sorry csonly. {{{hugs}}}

Probably 10 business days.... so not including weekends.

[justbroke]

Here is what it says (1) The Debtors' case should be presumed to be an abuse under 11 USC 704(b)(2) and (2) the product of the Debtors' current monthly income, multiplied by 12, is not less than the requirement specified in 11 U.S.C. 704(b)(2)(A) or (B).

If that is the ONLY THING that is in the Statement of Presumption of Abuse, then the UST is smoking something, and it's not tobacco! The Means Test specifically allows the "multiplied by 12" thing to be overcome by "completing the means test" and listing all the allowed expenses. Either the UST is just not playing fair, or there is more detail in the presumption notice.

I'm totally disgusted with this mess. I so much need your help.

The first thing is for your attorney to carefully re-read the notice (statement) and see if they are just blowing smoke. If it's only because your annual salary exceeds the standards, then the UST is blowing smoke!!!

However, given that you are over the median, you can expect more scrutiny, and perhaps the Statement of Abuse was just putting you on notice that they are looking into your numbers. Did the UST send a representative to your 341 Meeting?

I thought the Trustee had no longer than 10 days after the date of the first meeting of creditors to file with the court a statement as to whether the debtor's case would be presumed to be an abuse under section 707(b)??

This remained the same period after the 2010 to the way dates are calculated in the Code. (Congress authorized changes to the "5" day notification period, but not the 10-day period for this.) As always, if a date falls on a Saturday, Sunday, a Holiday, or a day that the "local" District office is closed, then it falls on the next working day.

[ValleYum]

It changed in 2010 to 14 days, to make things easier to calculate. As always, if a date falls on a Saturday, Sunday, a Holiday, or a day that the "local" District office is closed, then it falls on the next working day.

Thanks justbroke!! I appreciate your knowledge!

[tcreegan]

Hi csonly,

If something on your petition/schedules is "outside the statistical norms" it may trigger a UST motion. Agree w/ justbroke, not much substance there, might be a 'knee jerk' reaction. If there is not enough DMI to fund a Ch 13 plan, you will stay in a Ch 7.

I think your attorney will be able to handle this w/o too much fuss,

Tom in Colo

[csonly]

Only the panel trustee was at the 341.

The other part of the statements codes after UST has reviewed the materials filed, etc. Having considered materials in ref. to the criteria set for in USC 707(b)(2)(A) and pursurant to 704(b)(2) the UST determined that.....

This is basically what the statement starts with, which I presumed was the US laws and the rest of that paragraph is as I already had written. The next paragraph says that the UST has 30 days to file a motion to dismiss or convert under 11 USC 707(b) or file a statement setting for reasons the UST does not consider such a motion to be appropriate. Dbtors may rebut the presumption of abuse only if special circumstances can be demonstrated as set forth in 11 USC 707(b)(2)(B). The other paper says certificate of service, basically saying she electronically filed with the court and who she sent copies to.

So, this is it. Does there seem to be more to with the other wording that I just entered.

Is it possible she may not even file the motion?

I appreciate all your help and support. I was up until 2:30 last night just searching posts on here, who can sleep with this going on. My attorney seems good, but kind of "laid back." He does have a lot of experience. He said this happens a lot. Also, my attorney said the UST had 60 days to do this, and he never heard of the 10 day deadline when I talked to him. Since apparently that was changed to 14 days anyway, that really doesn't matter now. I have so many emotions right now, I don't even want to go there. Thanks to all who replies and helps me jump this hurdle, either through expertise, experience or support.

[SunshineGal]

Ouch. With a little luck the US Trustee will file the statement that presumption of abuse is not appropriate. Another forum member just went through this within the last week or so, search through the threads for "presumption of abuse" and you'll find it.

My concern is regarding the paystubs as your attorney didn't calculate the actual 6 months, just took a year to date number. Is is possible there was overtime or a bonus that increased the income amount stated on the means test?

[csonly]

Quote ....My concern is regarding the paystubs as your attorney didn't calculate the actual 6 months, just took a year to date number. Is is possible there was overtime or a bonus that increased the income amount stated on the means test?[/QUOTE]

I had a major pay cut starting April 2010, so my income the last 6 months was much less than the the first 6 months. I thought they had to just use the last 6 months of income? Still over median, though with expenses were still negative on the means test. Not only that, I cashed in PTO (paid time off) here and there to cover my pay cut. Not all at one time but here and there through the last several months, so if I need to take a day off for my kids, etc., I won't get paid until I build that back up, which is only 2 weeks a year anyway. I also work on production from home, so my income is up and down. I'm tired of working 10 hours a day just to get by and was hoping for relief from that with the 7. I have 2 toddlers and a disabled daughter from a car accident. I worked extra and cut expenses, my DH works 2 jobs....just to get by. We filed bankruptcy for relief and get run through the mill for trying to making it work, but with trying so hard, we still couldn't manage. OMG, I could go on and on.

[csonly]

I rechecked the numbers, quickly, when I sent the stubs and the numbers came out the same. Once the dust settles, I will check again. I'm going through my records and rechecking all my expenses. They seem to be within standard, but who really knows??? Anyone have any suggestions on more expenses I may be missing other than the norm. I have a 1 year old, a 2 year old (daycare is high, plus 2 in diapers). I also have a 25 y.o. daughter who was in a car accident 4 years ago, traumatic brain injury with residual deficits. They classify her as a "high functioning" brain injury, which is good, but she is not able to work due to her memory problems and her voice. She is actually having a procedure as I write this that we are hoping helps. She had vocal cord damage from being intubated or being intubated for such a long time (months). So basically, can anyone dig deep for expenses that I may have and be overlooking. No pets either. Any expense suggestions are appreciated regardless of how crazy they are!! Oh, in case you are wondering, why the gap in ages of the kids? We adopted the little ones (private adoption). Really only wanted one, but when he was a little over a year, got the call about his sister who was about to be born. We felt compelled to keep them together, so we did all we could to make that happen and it did. Among all this chaos, we are so blessed in many ways, from our 1 y.o. to our 25 y.o. Sorry for the book, my posts always drag on and on!!!

[daylate]

Don't know if this helps or not but can't you make the argument that by cashing in your PTO you were "double dipping" which kicked your income higher than it should have been-sort of a one time non-recurring situation?

[csonly]

daylate, I will definitely put that on my list to ask my attorney. Thank you.

[clevelandmom]

<RAISING HAND. . .JUMPING UP AND DOWN!!> I'M THE ONE, I'M THE ONE!! (The one who just had the UST file a Motion to Dismiss is Inappropriate). . . CSOnly, you can still beat this, IMHO. First, I'm not sure if the UST has 10 or 14 days to file their presumption, but either way, they will sometimes file it to ensure that they can have sufficient time to review the case just in case they think there "may" be a reason to Dismiss, or convert, or whatever. It sounds to me like you may very well have "special circumstances" if you are at the point where your husband is about to lose (quit? lose?) his second job. Also, the PTO thing is showing a false reading, too. Please don't panic. At the end of the day, just keep in mind: The UST cannot dismiss your case - only the Judge can. And I really, truly believe at the end of the day if you have to go and fight in front of a Judge, there is no way they would put you into a 13 you can't fund. It's as simple as that. And dismissal only seems to occur if there is something fraudulent in your filing - which I know there isn't. Deep breath. . . You can beat this!

[csonly]

Clevelandmom, can you please give me more details on your journey of the POA. What did they question, what made the UST change their mind?

At our 341 meeting is when the trustee told us about the foreclosure of my husband's full time job property. A week later, the sheriff was there, so this is for real, unless the owner turns this around, he will more than likely lose that job. He wants to quit his part time job once we get the discharge, it's too much for him. He would collect more on unemployment than his part time job pays, so that may end up being the case, unless you can collect and have a side job without losing money. In addition, he puts 120 miles a day in driving to his full time job, so he is gone 12 hours a day and works every weekend. We're not young either. I'm not sure if "looking head" is considered special circumstances, but I do have that written on my list to check on. I could kick myself for getting paid out for my PTO, I would love to take a day off just to relax. Again, I'd love to hear your story and I'm very glad to hear it has a happy ending!!!

[clevelandmom]

CSOnly, we were over median and did not pass the Means Test - but my husband got laid off in August. Our 6 month look-back was diluting, but not fast enough because I had a judgment against me and we were about to get garnished. So we filed our Ch. 7 even though we were over, and 2 days after our 341 the UST filed a Presumption of Abuse. After it was explained that my husband was unemployed now, our income was not enough to fund a 13 so the UST filed a a Notice that the Motion to Dismiss is Inappropriate.
I think you're attorney can help you with a little strategic planning. And as bad as this sounds, if your husband loses his job, or gets rid of the part-time job, your monthly income is going to change and that will help you. Do you have any idea when you should know about that?