Some things I learned from the lawyer I interviewed today...

[LadyInTheRed]

Well, I mean, unless you specifically DECLARE your intention to give up the house... you can always elect "retain and pay" and then change your mind after your case closes. Then your house payments can definitely be included without any legal issue.

But, since the OP doesn't really intend to retain and pay, to say so on the statement of intentions would be perjury. Unless she starts making the payments again and continues to make them until after discharge, I would suspect that the failure to make any payments could be used as evidence that she never intended to pay.

I did a few minutes of research. The question is not settled, but most courts who have ruled on the issue, including the Central District of California where the OP is, have ruled that the Chap 7 means test can include debt secured by property the debtor intends to surrender. Here's a link to the opinion in the Central District of California: http://www.cacb.uscourts.gov/cacb/Publications.nsf/Opinions/9ECCC944D15C5A568825730D006B9A72/$FILE/WilkinsMOD2_searchable.pdf

ETA: Ooops. The OP is in the Eastern District. I'll see if I can find a case there.

[LadyInTheRed]

Here's an Eastern District Case: In Re Vartan

Same conclusion.

[tyson24]

Wantmypeace,

Just want you to know that my thoughts are with you and fibro is a crazy and shi*** disease that I would wish on no one. My Mom has it and it is terrible. That being said, do not listen to the accusatory garbage that has been posted here. We are all filing bk and already feel terrible and things like this do not help. Sorry you felt like your privacy was invaded, but I would have felt like that too. Some people need to find a hobby that does not involve disputing someone's information on a website just so they can feel like they have a leg up.

Keep on keeping on

[Wantmypeace]

Thanks, typson24! I appreciate it. Stress makes fibro worse, and as soon as I realized it was actually getting to me, I stopped taking the bait and trying to defend myself. My new mantra: "I will not stress, I will not stress, I will not stress!" LOL!!

I talked to my third attorney today, and he said that the statement of intentions is what matters, which is similar to what the others have said--essentially, you can use it on the means test--BUT you should be current on your payments. One attorney told me being behind on payments won't matter, but I'm sure any trustee would look at our income and say that it is NOT in our best interest to retain our mortgages.

Lady--I'm going to look at both of those cases you posted. Thank you for finding them! It sounds like they are in line with what the attorneys are saying.

I'm not a big risk-taker, so I'm looking to cover ALL my bases on this. Don't want to stop making mortgage payments until I'm SURE we are safe to do so, but I can't pay the attorneys unless I stop making them. A bit of a catch-22 there...LOL!

[onwards]

I wouldn't worry about 1 missed payment - at all, whatsoever. Many people fall behind on their mortgages. Go ahead, use the money to pay the lawyer, file, tick "retain and pay", and then change your mind. IMO anyway.

To be considered abusive needs something much more significant.

[Okieblue]

I'm going to drop off this thread now. I just don't feel right about helping you anymore.

Hmm, where was the help?

[Wantmypeace]

Okie--LOL! You're funny!

Onwards, we're thinking more like four months, but after looking at the numbers with my husband last night, there's no way we CAN pay the mortgage without my income, so a trustee may not allow it anyway. I'm feeling okay about it, though, because our healthcare costs are high enough to help us pass the means test. I *think* we'll be okay.

[NowImDownInIt]

I just wanted to say good luck and from what I've read your attorney seems to be headed the right direction. You'll get more details as you proceed and I hope you share the income. I also want to lend my support of you. I think Debee was completely out of line and unhelpful. Her posts went against everything that makes this place a sanctuary for all of us related through our own financial hardships. I wish your family more blessings than you can dream of in the future, you'll see better years ahead.

[Wantmypeace]

Here's a funny coincidence! The lawyer that represented the case that debee referenced that was dismissed is the SAME lawyer I interviewed in May/June of 2009 who took our $300.00 and then told us we couldn't do a 7 or 13...$300.00 for 30 minutes of "advice." SO GLAD he DIDN'T help us. LOL!

[NowImDownInIt]

Here's a funny coincidence! The lawyer that represented the case that debee referenced that was dismissed is the SAME lawyer I interviewed in May/June of 2009 who took our $300.00 and then told us we couldn't do a 7 or 13...$300.00 for 30 minutes of "advice." SO GLAD he DIDN'T help us. LOL!

Um, WOW! Now, this might be my lack of attention speaking, but I don't think I've ever heard of someone paying for a consultation and I've been on here over 2 years. I would be livid. My retainer was $500 and that included my filing fee, albeit I am in a 13.

[Wantmypeace]

Yah, we were VERY new to the process, just checking the waters, and he's the first guy we met. The 300 would have counted toward the bk if we had filed with him, but he basically told us we couldn't and the money was non-refundable. I didn't know any better at the time. Lesson learned!

[NowImDownInIt]

That is a shady attorney and totally not your fault. He knew that you didn't know what to expect and took advantage of that. I wish that there weren't such a negative stigma attached to BK, because I am sure that you know someone that has filed (even if you didn't know they did) that could have helped you out in the beginning. I got lucky that I didn't have any money for a consultation and so when I called for appointments and made that point clear I was informed that standard operating procedure for bankruptcy consults is no fee. I suppose he could have counted that as the $295 filing fee but since you didn't file it's reprehensible that he would keep that money. Have you rated/reviewed him on Avvo? I definitely would.

[Wantmypeace]

No, I haven't, but I think I will, along with the other two attorneys I have interviewed. The last two have been very nice.