10 days after 341 - Insufficient Information Necessary to Make Presumption of Abuse

[kphipps34]

Here is my pacer schedule after my 341 meeting

-
Filed: 06/06/2011
Entered: 06/13/2011
Docket Text Meeting of Creditors Held and Concluded
Filed & Entered: 06/08/2011
Docket Text Order on Motion to Avoid Lien
Filed: 06/10/2011
Entered: 06/11/2011
Docket Text Certificate of Mailing by BNC of Order on Motion to Avoid Lien

Filed & Entered: 06/13/2011
Docket Text Chapter 7 Trustee's Report of No Distribution - No Funds
Filed & Entered: 06/14/2011
Docket Text Order that this case is not subject to dismissal under 521(i)(1)
Filed & Entered: 06/15/2011
[B]Docket Text U.S. Trustee's Statement of Inability to Determine Presumed Abuse

Anyone have any idea what the Statement of Inability to Determine Presumed Abuse means:
Here is what the paper that is filed says:
Clerk's Notice Re: United States Trustee's Statement of Insufficient Information
Necessary to Make Presumption of Abuse Determination
You are hereby notified that:
The United States Trustee has determined that the debtor has not filed nor transmitted all of the required means testing documents and that without these documents, the United States Trustee cannot make a determination as to whether debtor's case is presumed to be an abuse under 11U.S.C. § 707(b)(2).

[daylate]

Sounds to me that the US Trustee is looking for some documents-any requested of you? Basically what the trustee is saying is that you might have too much dmi but they can't tell because they don't have necessary info.

[Lalalink]

Newbie here, just wanting to take a stab at this:

Is it possible that the Trustee assigned to the case was planning on discharging and closing this case, but the UST audited it and found missing paperwork (i.e. Form 22A)?

Lala

[kphipps34]

No request for documentation

[SunshineGal]

Just a guess, but it sounds like the UST has a question and is about to request further information.

[sunshinepa]

I would also guess that you are going to need to send more paperwork. It sounds like the trustee was ok with everything but then the UST got a look and didn't like what he saw. What does your attorney say? I would call and find out what they think.

Keep us posted and good luck.

[Lalalink]

Another thought on what could be missing. Did you send in paystubs covering the 60 days prior to your file date? Perhaps the UST wants those as proof of what you put on your "non-missing means test form." In our district you are supposed to file them within 14 days of filing your petition; however, it has been known to be overlooked for up to 45 days. On day 46, if you did not submit them, the trustee can dismiss your case.

Lala

[justbroke]

Missing paystubs would have caused the case to be dismissed, for cause, under 11 USC 521. That's the compliance section. (Notice how the initial post showed that the Debtor is "okay" under 521... "Docket Text Order that this case is not subject to dismissal under 521(i)(1)") I won't speculate here, but it appears that the United States Trustee is "interested" in your case. Was the "Presumption of Abuse" box checked on your Form B22A? Are you over/under median? There are just too many reasons why the UST would submit such a document.

On the other hand, the UST is trying to cover his/her butt on the presumption issue, but the UST still has the all powerful Motion to Dismiss under 11 USC 707(b)... for totality of circumstances or bad faith.

Remember that the Panel Trustee and the United States Trustee (UST) are two different people with different responsibilities. The Trustee is basically responsible for conducting the 341 Meeting and administering the assets in the case. The UST is the "true" gatekeeper to a discharge. The UST is responsible for making sure that only those eligible to and "deserving of" a Chapter 7 discharge, actually receives one. The UST is more about making sure all the "numbers" are right on your forms and that you don't have enough money to pay a dividend in a Chapter 13 to the unsecured creditors.

I would contact my attorney immediately and find out what the Trustee wants. The Trustee still has until about 8/15/2011 (60 days from 341 Meeting) to file a Motion to Dismiss.

[IamOld]

Justbroke - may I ask - does the US Trustee ALWAYS object when you file Ch 7 and are OVER the median? In my state there is a HUGE difference from my metro area and the rest of the state - HUGE - shouldn't even be the same state...does that make a difference? That they KNOW that in this area salaries are higher because cost of living is out of sight?

[justbroke]

Justbroke - may I ask - does the US Trustee ALWAYS object when you file Ch 7 and are OVER the median? In my state there is a HUGE difference from my metro area and the rest of the state - HUGE - shouldn't even be the same state...does that make a difference? That they KNOW that in this area salaries are higher because cost of living is out of sight?

Absolutely not! I was over the median and Chapter 7. But I was both a converted case (2 years in Chapter 13) and a non-consumer case. So that may have been part of my ability to slide pass the UST without even a blink!

This really comes down to your local UST's office (Office of the United States Trustee). In most UST offices, the UST will take a closer look at any case where the debtor is over the median or the debtor is discharged at, near or over $100K in unsecured non-medical debt. It's their job to insure the integrity of the program and it's more efficient for them to set a bar where they review all cases. (The other under-the-median cases may be selected "randomly" for audit, but usually go under the radar!)

[kphipps34]

Over median income. All the paychecks where submitted. Gotta call my attorney and see what's up

[IamOld]

Absolutely not! I was over the median and Chapter 7. But I was both a converted case (2 years in Chapter 13) and a non-consumer case. So that may have been part of my ability to slide pass the UST without even a blink!

This really comes down to your local UST's office (Office of the United States Trustee). In most UST offices, the UST will take a closer look at any case where the debtor is over the median or the debtor is discharged at, near or over $100K in unsecured non-medical debt. It's their job to insure the integrity of the program and it's more efficient for them to set a bar where they review all cases. (The other under-the-median cases may be selected "randomly" for audit, but usually go under the radar!)

Thanks justbroke - well unsecured is about $70,000 BUT there is an ungodly sum in student loans which cannot of course be discharged, and about $8K in IRS. So the "regular" unsecured isn't "that much" I suppose. Do you think they'll look at student loans differently as they're not dischargable?

[IamOld]

over median income. All the paychecks where submitted. Gotta call my attorney and see what's up

best of good luck!!!!!!!!!!

[justbroke]

Thanks justbroke - well unsecured is about $70,000 BUT there is an ungodly sum in student loans which cannot of course be discharged, and about $8K in IRS. So the "regular" unsecured isn't "that much" I suppose. Do you think they'll look at student loans differently as they're not dischargable?

No. I think that this is a "normal" review that the UST's office does for "over-the-median" debtors. Apparently, the UST doesn't have enough "documentation" to make an informed decision. As to what documentation they are looking for, only your attorney or the Office of the UST (OUST) can answer that.

[dman]

I'm no expert, but...maybe they're just really busy. It's a pretty good stall tactic. Got a lot of over-median filers they need to look at, only have a couple weeks or so to make a decision...so they do a generic "we need more info" filing. They just bought themselves some more time.