NEED HELP! My First Thread/Post...POA Question

[AKA]

Pre-apologizing for the long introduction post:

I just received my POA after my 341. Not surprised as the trustee in my 341 was just nasty. My situation is this:
-Wife (at the time) and I both had major employment/income problems 2008-2009.
-Drained our savings ($30,000) to maintain expenses (mtg, auto, etc.).
-Mutually divorced mid 2009, I took sole responsibility for the house and all expenses.
-Tried to modify loan twice August 2009 (approved then not approved?) and again March 2010 with no success (absolute hell)...in March foreclosure process starts.
-Couldn't afford mtg any longer and stopped paying while trying to work w/ mtg co. and ended up getting a lawyer.
-FINALLY got a good paying job in June 2010 and tried to work w/ mtg co. again w/ no success being denied in August 2010 because although I qualified they wanted to use my ex-wife's income as well even though the decree stated I had exclusive use and ownership of the house and all related expenses.
-So I obtained a lawyer in September 2010 after my final attempt to modify failed and filed BK7 in November 2010.

Here's my CURRENT question/problem: It was a culmination of the past 2 years that drained all my/our finances before filing. My concern has always been that the trustee is simply looking at my CURRENT pay and imply this has been my income the whole time which it certainly was not. Also, I am commission only. One month I made $8k gross (best ever in my life), but the next was $3600 gross which is more typical. I could only make $2700 in a month...who knows.

The 6 months income prior to me filing in November 2010 was next to nothing. However since then my income has become steadily better and my concern is the longer the BK process drags out the more income will be seen and they will determine suddenly that NOW I can pay for everything where it was truly the past 2 years of little/no income that put me here. All they have to do is look at my tax returns.

I have read the posts on POA and looks like I will need to re-submit a means test? For those who have experienced this, how much consideration is given to the past that brought you to the point of filing compared to your CURRENT situation?
And if your income level did get back to normal, like mine, after the POA were you still able to rebut and have the BK7 discharged?

Thank you everyone.

[tcreegan]

Hi AKA,

The means-test has a pretty hard 'n fast 6-month lookback. You said the 6 months prior to filing you had "next to nothing" in income. Can we assume you passed, under median-income? Did you have to fill out the expenses deduction section?

If you have the income documented and no questionable expenses, I don't see where the UST has a presumption of abuse on the means-test. I don't think you resubmit the means-test as much as document what the UST is quibblng about.

If you income has improved since filing, the difference would be in your disposable monthly income (DMI) on Schedule I minus Schedule J (post-BK income and expenses) If the UST was quibbling about this, I think it would be a motion to dismiss or convert to Ch 13, not presumption of abuse. (but I'm no BK attorney by any stretch)

Past the 6 month lookback, your past only matters if you transfered assets, bought something extravagant, were trying to hide income or assets, committed fraud, something like that. Having a crummy financial past doesn't count for much, the only thing I can see where it might help would be to prove your income fluxuates and your current improvement is just temporary.

Did the UST give a reason for filing the presumption of abuse?

Kinda confused here, sorry..

Tom in Colo

[AKA]

Hi AKA,

The means-test has a pretty hard 'n fast 6-month lookback. You said the 6 months prior to filing you had "next to nothing" in income. Can we assume you passed, under median-income? Did you have to fill out the expenses deduction section?

If you have the income documented and no questionable expenses, I don't see where the UST has a presumption of abuse on the means-test. I don't think you resubmit the means-test as much as document what the UST is quibblng about.

If you income has improved since filing, the difference would be in your disposable monthly income (DMI) on Schedule I minus Schedule J (post-BK income and expenses) If the UST was quibbling about this, I think it would be a motion to dismiss or convert to Ch 13, not presumption of abuse. (but I'm no BK attorney by any stretch)

Past the 6 month lookback, your past only matters if you transfered assets, bought something extravagant, were trying to hide income or assets, committed fraud, something like that. Having a crummy financial past doesn't count for much, the only thing I can see where it might help would be to prove your income fluxuates and your current improvement is just temporary.

Did the UST give a reason for filing the presumption of abuse?

Kinda confused here, sorry..

Tom in Colo

Kind of confused myself. When I filed my lawyer told me my newly earned income (June-October) up to the point of filing wouldn't have an impact enough to be a concern. My only concern was a single $8,100 GROSS check I received in October before filing, but my lawyer said don't worry because it wouldn't be enough to offset my 6 mo. look back. Sure enough during my 341 the first thing the UST points out is the freaking $8,100 and accuses me of making $8,000 monthly which couldn't be further from the truth. Showed her my next monthly pay stub for $2,600. I only averaged maybe $2,500 month for the 6 months prior to filing (my monthly expenses were just short of $3,000). I have asked the attorney/paralegal for an answer/game plan and not an "it will be okay" pat on the head. I was told yesterday the trustee just needs to see some changes that need to be made, for what that's worth. My concern is that the trustee may want me to re-affirm the loan under CH 13.

[tcreegan]

Hi again AKA,

....ah, the fluxuations in income caught the trustees eye....can't blame them, they're supposed to check into that sort of thing. Some documentation should solve the problem.

My concern is that the trustee may want me to re-affirm the loan under CH 13. ...you don't really reaffirm in a Ch 13, you create a plan that will pay off your debts, usually in 3 or 5 years. But if you cannot get your debts paid by a Ch 13 plan, you should stay in a Ch 7. It will all come down to your DMI off schedules I & J, if this is below a hundred and fifty or so, you should be OK.

Hang in there, let us know how it turns out!

Tom in Colo

[AKA]

Thanks for the re-assurance, Tom. Biggest problem for everyone is the "not knowing" what to expect or how to take motions such as the POA. Looking back I should have filed a year ago. I was dumb enough to think the mtg company would work with me once they saw I had obtained gainful employment again. I plan on moving out March 1, prior to the pending, soon to be set, sales date on the house. I plan on the CH 7 and my lawyer stated it shouldn't be an issue either. I just want to hear my lawyer tell me this is just a bump in the road and eventually it will all come to a discharge. Like everyone I just want to start over in rebuilding my credit and become a worthwhile tax-paying citizen for the govt. you would think they would want that too. ;)

[ValleYum]

Hi AKA - So sorry you are going through this. What did your schedules I and J look like?

[AKA]

Honestly, I provided all the financial info. to my lawyer and they completed it for me. I haven't even seen it.

[csonly]

I would get copies from your attorney or print from Pacer, you need to see what the means test shows and your I and J schedules along with all other documents. You attorney should have offered you copies. Mine said, "do want copies of all these" and I said, definitely I do!