Car/401K

[puddykat]

Husband filed Chapter 7 in January 2004. Motion to dismiss was filed and hearing was held November 2004. Briefs submitted to Judge Feb. 2005. Still waiting for decision.

1. Truck is 13 years old/190,000 miles. His commute is 70 miles round trip. Simply can't wait any longer. Has broken down 3 times this year. Must have something reliable. He has $1000 (bonus/overtime) and his mother will loan him (with interest) $3500. They plan on getting a contract -- signed and notarized. If he has to go to a Chapter 13, will the court recognize this contract?

2.Still has 4% (about $100/month) going into 401K to get employer's match. Should he discontinue this and put that $100/month toward car loan? I believe he has to discontinue it anyway if he goes to Chapter 13.

3. He does get overtime -- seasonal -- during tax season only. Will that be included in his disposable income in a Chapter 13? He doesn't have to work overtime, but he chooses to.

[puddykat]

Is there anyone out there who can advise me? I'd really appreciate it! Thank you.

[HHM]

Well, I assume no one has responded because no one knows exactly what you are asking.

Let's get some more background first, ok...

1. On what grounds (i.e. what were the reasons) was the Motion to Dimiss filed.
2. Do you have an attorney...

I am little surprised there has been no decision yet, these Motions generarlly don't take this long to resolve.

[puddykat]

Thank you so much for responding. Any advice is much appreciated.

Motion to dismiss was based on substantial abuse and he has a lawyer who said from the beginning it should be cut and dry! The trustee is way off base -- he based it on a paycheck that included overtime and annualized it. Even though husband clearly explained the situation in the deposition and showed other paystubs, he had to go to a hearing. He had husband's tax returns from the past 7 years which supported my husband's testimony but ignored them. The trustee is out for blood per the lawyer. My husband was not able to come up with his share of the mortgage payment 3 times in one year. I paid his share and he reimbursed me with the tax refund he later received. The trustee is saying that I obviously can therefore make the entire house payments and that husband's share should go towards a Chapter 13. Husband explained that I used the money that was put away for annual taxes and insurance since we knew the tax return would come before they were due.

Yes, he has been waiting since the brief was submitted in February (judge asked for briefs from both lawyers after the hearing). The wait is killing us.