Trustee Requesting Documents

[IambrokeinGA]

I am like 2 weeks away from my discharge date and the trustee is asking for 1 years bank statements and proof of child care and other exemptions. Is this normal and what are they looking for? I am freaking out.

[OhioFiler]

Looks like some of your claimed expenses are being questioned. Did you make up your expenses for schedule J?

[tobee43]

don't worry, if you have the proof, you will fine.

[filed]

Which Trustee is requesting the additional documentation? Is it the US Trustee, who is usually more concerned with income and expense issues for purposes of 707 (b)(3) and possibly kicking you into a chapter 13, or the Panel Trustee who is usually more concerned with whether or not there are assets? Has the Panel trustee already filed something stating that you are in fact, a no asset case, or is that still up in the air?

[IambrokeinGA]

The Us trustee is asking. We have already been decided as a no asset case. The expenses are legitimate but we barely passed the means test so maybe they are trying to push to a chpt 13.

[ValleYum]

Were there any objections filed on PACER from the US Trustee?

Were your childcare and other expenses "stable" through out the year?

[IambrokeinGA]

Child care expenses were higher than the rest of the year 3 months out of the 6 prior to filing due to the summer months when kids had to be in summer programs. But if you average out the year we are still high on expenses.

[despritfreya]

Did the UST file a Notice of Presumption of Abuse in your case? If this was not filed I do not think the UST, at this late date, can question your right to file Chapter 7 using a 707(b) argument in an effort to dismiss or force a conversion.

Des.

[IambrokeinGA]

Looking on the Pacer it looks like the Trustee filed that they were missing documentation for the means test back in mid November to determine presumed abuse. I never received this notice nor did my lawyer ever ask for it so I guess that is what the scramble is for. Looks like my lawyer has maybe dropped the ball??

[filed]

des, On a different thread justbroke said:

..."The UST still has 60 days following the first schedule 341 meeting to file a motion under 707(b)(3) for cause or totality of circumstances...Don't let that 10-day period to claim abuse be confused with the UST's "Ace" card -- totality of circumstances."

which implies they can use the 707(b) totality of circumstances at anytime within the 60 days. I guess the question is, can the US Trustee use the "Ace" card of totality of circumstances at anytime within the 60 days, even if they do not file a Notice of Presumption of Abuse within the first 10 days?

[despritfreya]

des, On a different thread justbroke said: ..."The UST still has 60 days following the first schedule 341 meeting to file a motion under 707(b)(3) for cause or totality of circumstances...Don't let that 10-day period to claim abuse be confused with the UST's "Ace" card -- totality of circumstances." which implies they can use the 707(b) totality of circumstances at anytime within the 60 days. I guess the question is, can the US Trustee use the "Ace" card of totality of circumstances at anytime within the 60 days, even if they do not file a Notice of Presumption of Abuse within the first 10 days?

Not as far as I know. There are two different time frames. One (60 days) deals with attempts to deny a discharge under 727, which can be brought by the UST, Trustee or a creditor. Under the Trustee's duties (704), the UST has 10 (I believe it is now 14 but can't find the support for that) days to file a Notice under 707(b), making no reference to any subsection under (b). It appears that the language of 704 does not except from that requirement 707(b)(3). Further 704(b)(2) requires the UST to file the Motion to Dismiss no later than 30 days after the Notice is issued.

Now, mind you, this is my interpretation of the Code and I have not reviewed any case law.

If a MTD is filed (within the 30 days), it will most likely contain two counts to dismiss. The first will be under 707(b)(2) and the second, as an alternative theory, will be under(b)(3).

From OP's last post it sounds like the UST either filed the Notice of Abuse (not sure if it was timely) or filed for an extension of time to file the Notice since documents were missing (again, not sure if it was timely.).

If OP is reading this. . . Look at the PACER entry. 1) When was your 341; 2) When did the UST file the 1st notice; 3) Exactly what does the 1st Notice say; 4) Since the 1st Notice has the UST filed anything else - If “yes”, what was the date and what does it say?

Des.

[filed]

Not as far as I know. There are two different time frames. One (60 days) deals with attempts to deny a discharge under 727, which can be brought by the UST, Trustee or a creditor. Under the Trustee's duties (704), the UST has 10 (I believe it is now 14 but can't find the support for that) days to file a Notice under 707(b), making no reference to any subsection under (b). It appears that the language of 704 does not except from that requirement 707(b)(3).[/B]

Des.

Des,

Do I understand correctly that you are saying that per 704(b) the US Trustee has only 10 days to file a notice of presumption of abuse, and if they miss that deadline, they can no longer challenge a case based upon either 707(b)(2) or their "ace in the hole" 707(b)(3)?

In other words, once a debtor has actually made it past the first 10 days and there has been no Notice filed by the US Trustee, then, the debtor can forget about 707(b) issues?

For what its worth, this seems to conflict with justbroke's statement that "The UST still has 60 days following the first schedule 341 meeting to file a motion under 707(b)(3) for cause or totality of circumstances...Don't let that 10-day period to claim abuse be confused with the UST's "Ace" card -- totality of circumstances."

[despritfreya]

Do I understand correctly that you are saying that per 704(b) the US Trustee has only 10 days to file a notice of presumption of abuse, and if they miss that deadline, they can no longer challenge a case based upon either 707(b)(2) or their "ace in the hole" 707(b)(3)? In other words, once a debtor has actually made it past the first 10 days and there has been no Notice filed by the US Trustee, then, the debtor can forget about 707(b) issues?

This is/was my reading of the section. But let’s cut to the chase and see what a Judge has ruled. . .

In re Byrne, 376 B.R. 700 (Bankr. W.D. Ark., 2007)

“The sole issue before the Court can be narrowly stated as whether the United States Trustee is required to file a statement within 10 days of the first meeting of creditors stating whether the case is presumed to be an abuse under § 707(b), as required under § 704(b)(1), prior to filing a motion to dismiss the case under § 707(b)(3). . . The UST argues that the statement required under § 704(b)(1) is only applicable if there is a presumption of abuse under § 707(b)(2). In this instance, because the UST filed her motion to dismiss under § 707(b)(3), she believes that the statement under § 704(b)(1) is not required prior to filing a motion to dismiss under § 707(b)(3). . .”
Final holding:

“Simply stated, the ten day statement under § 704(b)(1) is superfluous to a filing under § 707(b)(3) if a determination has otherwise been made that a presumption of abuse does not arise. If the presumption does not arise, then there is no basis for dismissal under § 707(b)(2). But the code permits the UST to seek dismissal in the alternative under § 707(b)(3) for reasons other than a presumed abuse. Even though the UST failed to file a definitive statement as required under § 704(b)(1), the Court finds that she still has the right to proceed under § 707(b)(3) based on the debtor's representation that a presumption does not arise in this case. Accordingly, the debtor's objection to the UST's motion to dismiss based on a failure of the UST to file a definitive § 704(b)(1) statement is overruled. The first date set for the meeting of creditors in this case was March 19, 2007. According to Federal Rule of Bankruptcy Procedure 1017(e)(1), a motion to dismiss a case for abuse may be filed only within 60 days of the first date set for the meeting of creditors. Because the UST filed her motion to dismiss under § 707(b)(3) on April 27, 2007, the Court finds that it was timely filed and may proceed. The motion will be set for hearing by subsequent notice by the Court.”

__________________________

So, there you have it. Justbroke is correct and my reading of 704 is not.

Des.