confused

[erin1222]

My attorney is about to file for us and requested 60 days of pay stubs for me and my husband and we have to do our credit counseling over cause the 180 days elapsed. I gave him all the pay stubs but my husbands reflects over time. Now in all the years we have been together he never got over time but since New Jersey's weather has been cold and snowy this year his job has required him to work overtime. My attorney told me that changes everything and while I understand. I know in a month or two the overtime will stop. So how does that work how is overtime considered in bankruptcy? Also my attorney is trying to push for a Chapter 7.

[Clabbergirl]

The way I understand it, your income (overtime is income) from the previous 6 months is what they need to see, regardless of whether it is the norm for you. If your attorney is suggesting a 7, the overtime probably won't make much difference as I'm going to assume you'll pass the means test and qualify for a 7 anyway. What do you want to file?

[erin1222]

My attorney is trying to push the 7 although I have bad feeling it won't fly we are over the medium income it's been taking us over a year to do this. He indicated to me due to my daughter's learning disability and our rental income which we take a big loss on we may just be able to do it. I am at my wits end here cause we had so many opportunities to file this. It doesn't pay to use someone who you know, I thought I was saving money but all I am getting is stress and more stress.

[tobee43]

My attorney is trying to push the 7 although I have bad feeling it won't fly we are over the medium income it's been taking us over a year to do this. He indicated to me due to my daughter's learning disability and our rental income which we take a big loss on we may just be able to do it. I am at my wits end here cause we had so many opportunities to file this. It doesn't pay to use someone who you know, I thought I was saving money but all I am getting is stress and more stress.

erin...as difficult as this may be...WAIT!!!!!!!!!!!!!

we left nj.....and actually moved to florida..filed down here and waited...are you sitting....2 years......

now...just wait it out for a few more months so you can get your dmi down....don't let the atty force or pressure you until you are ready...

even if one of your creditors files or sues you...you can take care of any suits or judgments after the discharged...don't feel pressured ....honestly and don't get yourself thrown into a 13 if you feel that's not the right direction for you...remember attys make much more if they bring it to the table and the trustee throws you into a 13....

take your time..and think about it. i don't know if you are filing nj exemptions or going federal...hopefully you are going federal as nj is considered a "creditor" friendly state..that's why we left.

best of luck!

[erin1222]

thank you it's something to think about.

[tcreegan]

Hi erin1222,

You can be over median and still pass the means-test. Heck, in certain circumstances you can fail the means-test and still do a Ch 7.

Punch your numbers in online means-test calculator (heard good things about the one at legalconsumer.com) and see for yourself.

What might end up being a solution to the overtime is keeping it off Schedule I The final test of being able to do a Ch 7 is Schedule I minus Schedule J (these are your post-BK income and expenses) ...this is called DMI, disposable monthly income, and if it is under ~$150 you are in Ch 7 range. I & J are "forward looking" and since the overtime is not going to be ongoing you can legitimately leave it off Schedule I

Good luck to you, hope things improve w/ your "attorney we know" !

Tom in Colo

[Clabbergirl]

...remember attys make much more if they bring it to the table and the trustee throws you into a 13....

best of luck!

What do you mean on this? How do they make more?

[csonly]

clabbergirl - If the trustee presumes abuse for a 7 and you "voluntarily" convert to a 13, the attorney will have additional fees. From what my attorney told me, those extra fees to convert are added onto the payment plan in chapter 13.

erin1222 - Even with your husbands OT, if you go back six months and average all your income, that is what the trustee will use for his calculations. We were over median (red flag), so the UST first asked for 6 months of pay stubs, then filed a statement for presumption of abuse, then asked for other documentation which supported our expenses and some special circumstances, the POA was determined to be inappropriate, so we are now waiting for our Ch7 discharge. You can be over median and still qualify for a chapter 7, but the UST more than likely will want documentation of all your expenses. Some people on this forum are over median and the trustee didn't blink an eye, but others, they rake through the coals. Again, if you can support the expenses and your DMI is in the right place, you can still file for Ch 7. Like Tom said, go on line and check the means test yourself, that way you can see where you stand right now and if that doesn't look good, then I would suggest to hold off a bit to file.

[tobee43]

What do you mean on this? How do they make more?

conly explained it well.....

but remember you are in nj...its really like being on another planet....and not so much in the positive way.

and while i agree you can absolutely be over the median and still qualify for a 7....many times the trustees in nj are known to throw you into a 13...that's why we personally left the state and filed in another. even when we started to go to attys here...a few insisted we go 13....

just because my our incomes included income prior to our lay offs....

i'm certain it will work out!