UST filed Motion to Dismiss...under 2 different arguments!

[momofthree]

Adding to my previous post, what about dropping your daughter down to 2-3 days a week rather than a full 5 days. Since you aren't working, she really shouldn't require 5 days of preschool at her age. Mind you, I'm a preschool teacher and VERY pro-preschool, just so you know who this advice is coming from. ;) And, again, I give you kudos for making her education a priority, but the TT probably has differing views on the subject...

[HHM]

I see what you are saying....however, I think the most important language in the 9th Circuit ruling is what they recognize that Congress intended....which I believe could be construed to cover the Nation (all circuits), not just CA. I know that Michigan is not tied by the 9th Cir. ruling by any means, but it provides a good basis for an argument, especially if I (or my atty) can find several OTHER cases that basically agree with that type of ruling, regardless of circuit - though I recognize it would be best IF we could find one in the 6th.

This part here is what I think applies:

"The court observed that Congress allowed a bankruptcy debtor an expense on the means test equal to the amount of the debtor’s monthly mortgage payment, with no limitation on the amount of the monthly payment. It would be illogical for section 707(b)(2)’s means test to allow a mortgage payment regardless of the size of the payment, only to have the same mortgage payment disallowed by section 707(b)(3)’s totality of the circumstances test. Furthermore, if the debtor were forced to convert to chapter 13, the mortgage payment would once again be allowed by the means test contained in chapter 13. Creditors would not benefit from a conversion to chapter 13 if the mortgage payment were to be allowed in chapter 13 anyways."

Logic is logic, in any Circuit, and the way I see it, that seems to be the gist of the ruling.

As for why I'm looking up cases, instead of my atty., all I can say is I'm doing everything I can to lend a hand. I am rep'd, and my atty. is a veteran bk litigator, and I'm sure he will be looking too (I hope), but I figure any help I can provide that could possibly be useful, I will try and supply. If he doesn't want any part of my help, that's fine too...he's the expert, but I haven't been asked to stop.


One last thing I wish to point out, is that the UST cited OLD 6th Circuit case law (In re Krohn (1989)) in making the argument for dismissal. He also cited 2 other cases in support of Krohn, but both of those cases were also before the BAPCPA of 2005. All of my case law is from much more recent cases, and I also think the circumstances of the present economy should be taken into account. I will be more than happy to describe in great detail to the UST exactly ALL of the so-called "belt-tightening" we have done in the last 5 years, and especially the last 2.

Fair warning, if it was really that cut and dry, you would not be getting a trustee objection.

Also, don't fall for the assumption that just because a case pre-dates BAPCPA that it is bad law, section 707 existed before 2005, much of the case law is still good. Even pre 2005, the rule was still that expenses needed to be reasonable and necessary. That is the vague language that helps the trustee in these circumstances when it comes to abnormally high mortgage payments.

[ValleYum]

IIRC, the Montessori payment is ~$600/month.

On Line 38 of the Means Test is where you can list the deduction for Education of Children under 18 which is capped at $147.92/child.

On Line 30 of the Means Test is where you can list the deduction for Childcare (baby-sitting, day care, nursery and preschool).

If you class $147.92 as an education expense, who can say that the remaining $450 of the $600 spent monthly isn't reasonable for qualified PT Childcare (comes out to $112.50/week or ~11 hours of weekly care @$10/hour)? Even though the OP is not working due to a health issue, I am sure there are medical appointments, possibly therapies, etc. to attend.

Could splitting the Montessori cost between the 2 lines/categories be a way to list the expenses so that they don't jump out so dramatically and actually look reasonable and necessary?

Heck, even if you classed the full $600 tuition as childcare only - that is $150 per week (or 15 hours of care assuming the cost of $10/hour for a qualified babysitter) being spent. I don't think the BK code says that stay at home parents can not have reasonable respite from their child in order to attend to their own personal, emotional and particularly medical needs. As some of us know, being a SAHP is much more than a 40 hour per week job; it is more like 60-80+ hours per week.

Just a gray thought to throw out there since we all know BK is never simply black and white.

[alorth]

Well....found a 6th Circuit case that nearly mimics mine (In re Zayas) and it is a post - 2005 case that got dismissed for Totality of Circumstance. After reading the decision, I don't like our chances in this circuit. Like I say, the circumstances of the case including pay and debt amounts both secured and unsecured are very similar to ours. Back on the low of the bk rollercoaster after feeling on a high much of the day. I just want to know if I'm wasting money I really cannot afford to spend fighting this, and should instead spend it converting to a 13 now. Just really cannot afford to throw money away fighting for a 7 if my chances are slim and none.