payday loans and means test???

[hoss]

Hi, I am fairly new to this forum. I have learned alot from everyone in the past week or so, but I have a couple questions I was hoping someone could help me with.
I met with an attorney last week, my husband and I make too much on the means test, so the attorney is playing with numbers but may have to file chapter 13.
First question being, I have tuition reimbursement that my employer puts on my regular paycheck, so this is considered income, unfortunately. I also have student loans, so I can subtract my tuition expenses on the means test?
Second question, when you enter your car payments on the means test, do you include the insurance, since it is mandatory to have car insurance to drive?
Also, one last thing, I got myself in trouble with payday loans, so far one is threatening to come after me. They say it is considered passing a bad check over state lines. My attorney said to just refer them to him, but when I did they immediately said that it is not discharged in bankruptcy? Is that true or are they just threatening like always??
Thanks for any help anyone can give me.

[HHM]

Payday loans are a general unsecured debt, they are just making empty (misleading and flat-out lies) threats. Payday loans are discharged in BK.

[helpmeout]

My attorney said to just refer them to him, but when I did they immediately said that it is not discharged in bankruptcy? Is that true or are they just threatening like always??
Thanks for any help anyone can give me.

Next time they say that, respond with:

Are you giving me legal advice? If so, you definitely need to talk to my attorney and let them know what your legal advice is and what your qualifications are to give out legal advice.

And then give them your attorney's contact info.

Or better yet, just don't answer their calls.

[BKDefender]

hoss: Ask them to send you a letter in writing or via fax that says 'You cannot discharge our payday loan in bankruptcy!'. Then take it to your attorney and cash that letter in for ~$3,500 - the average settlement amount for intentional violations of the bankruptcy stay after filing a motion for contempt and sanctions against the payday lender.

I have payday lenders swear to me (and at me) that my clients cannot discharge a payday loan in bankruptcy. They tell me (and my clients) that it is a crime to write a check that you don't pay. Most, if not all, jurisdictions don't prosecute post-dated checks as a criminal offense and if your district attorney's office collects bad checks, they often won't help with post-dated checks. When someone goes in for a payday loan the payday lender doesn't ask them to write a check that the lender knows can be cashed today - otherwise the person wouldn't need the loan. They know that the check is not good at the time they accept it and is only good after the person gets paid - hence 'payday loan' or 'payday advance.' In other words, the payday lender waives their right to enforce criminally because they know they are accepting a piece of paper that has ZERO value in exchange for an agreement for future payment from a post-dated check.

Here in Nevada, payday loans are 100% dischargable in bankruptcy. BUT if you write a check to a casino for a marker, and don't pay it, you can go to jail :-)

--William

[SMinGA]

For the other question, yes you should be able to count tuition expenses. If its student loan payments though, that may be district specific. In some situations payments on student loans are put into forebearance (or deferment, I can't keep straight which is which) while in a ch. 13. For a 7 though you would consider student loan payments - since payments would resume within a few months of filing.

[starr4law]

In this district, student loans are not listed on the means test. Rather, they are treated as an unsecured priority creditor and must file a proof of claim. They will receive funds in a Ch 13 pro-rata same as any other unsecured creditor. The difference is that the student loans will survive the Ch 13 and whatever the balance is on those, you will still be responsible for after the Ch 13 is done. As far as actual tuition expenses, you could consider listing them on the means test under the line that deals with continuing work education necessary to maintain employment. Also, in this district, tuition reimbursement is generally considered income when computing the means test.

As far as the payday lenders are concerned, they are dischargable in a Ch 7 and would be treated just like a regular unsecured lender in a Ch 13. Often they don't even file a proof of claim, but if they do, they just get what they get and the loan does not survive the Ch 13. The income you have received does not compute into the means test. However, you will want to wait to file if the loans were recent since they could object (rarely do, however), much like a cash advance off of a credit card if it is within the 6 month window.

Good luck!