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11 USC 704 (b)(1) US Trustee 10 day deadline

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  • 11 USC 704 (b)(1) US Trustee 10 day deadline

    According to what I read:

    the US Trustee shall review all materials filed by the debtor and, not
    later than 10 days after the date of the first meeting of
    creditors, file with the court a statement as to whether the
    debtor's case would be presumed to be an abuse under section
    707(b)

    If you have your first meeting of creditors on say a Thursday, then, 10 days would be on a Sunday. Can they file with the court the requisite statement on a Sunday (or on a Saturday), or would they have to file on the prior Friday, and therefore, they would really only have 8 days or so?

    Does this mean that if there is nothing posted on PACER by Friday evening that you have made it past this 10 day hurdle, or must you actually wait for Sunday night to pass?

  • #2
    When the deadline falls on a Holiday or weekend day, then it moves to the next business day (where court is open). If the court fails to open on that business day for weather or disaster, then the date moves again.

    So, if you had your 341 Meeting concluded on a Thursday, then the UST has until the Monday following. Typically nothing happens after 5PM so it would be 5PM the Monday following the immediate Monday.

    Remember, this is just for an Abuse under the Means Test. 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. Typically you would know if the UST doesn't like your numbers by the 341 Meeting or shortly thereafter. I can't define "shortly thereafter" but they may make some noise within the 10 days. Don't let that 10-day period to claim abuse be confused with the UST's "Ace" card -- totality of circumstances.

    Again, if the UST isn't requesting documentation or hounding your attorney for more information or threatening a debtor's exam (Rule 2004), the UST isn't that interested in the case. Also remember that over-the-median income cases do receive more scrutiny than others.
    Last edited by justbroke; 12-13-2011, 06:15 PM.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      JB explained it perfectly. it is 10 calender days, but if the last day of the deadline falls on a weekend or holiday, the deadline is not until the next business day.

      Also, some US Trustees file the presumption in many cases just to give the time to review the file. So if you get a presumption notice, it is not the end of the world, it most likely is the US trustee buying themselves time to review you case and request additional documents.

      Comment


      • #4
        Originally posted by justbroke View Post
        When the deadline falls on a Holiday or weekend day, then it moves to the next business day (where court is open). If the court fails to open on that business day for weather or disaster, then the date moves again.

        So, if you had your 341 Meeting concluded on a Thursday, then the UST has until the Monday following. Typically nothing happens after 5PM so it would be 5PM the Monday following the immediate Monday.

        Remember, this is just for an Abuse under the Means Test. 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. Typically you would know if the UST doesn't like your numbers by the 341 Meeting or shortly thereafter. I can't define "shortly thereafter" but they may make some noise within the 10 days. Don't let that 10-day period to claim abuse be confused with the UST's "Ace" card -- totality of circumstances.

        Again, if the UST isn't requesting documentation or hounding your attorney for more information or threatening a debtor's exam (Rule 2004), the UST isn't that interested in the case. Also remember that over-the-median income cases do receive more scrutiny than others.
        OK, so, yesterday passed without any filing on PACER from the US Trustee, ie, they did not file a Notice of POA (No news is good news, right?). Yesterday was the 10th day (11th, actually, after a Thursday Dec 8th 341 meeting) and so, my question is, is there any actual significance of this 10 day deadline, or is it basically meaningless? To refresh, the US Trustee requested documents (tax returns and bank statements) be delivered to him at the 341, and he came to the 341 and asked questions. He said all questions were answered and allowed the 341 to be concluded. In your experience, is the passing of the 10 days significant, or is it a meaningless timeframe since they still have 707(b)(3) for the full 60 days? If the Panel Trustee is waiting for the US Trustee to make a determination, do they usually wait the full 60 days before they issue a determination of asset or no asset in one's case?

        Comment


        • #5
          Originally posted by filed View Post
          OK, so, yesterday passed without any filing on PACER from the US Trustee, ie, they did not file a Notice of POA (No news is good news, right?). Yesterday was the 10th day (11th, actually, after a Thursday Dec 8th 341 meeting) and so, my question is, is there any actual significance of this 10 day deadline, or is it basically meaningless? To refresh, the US Trustee requested documents (tax returns and bank statements) be delivered to him at the 341, and he came to the 341 and asked questions. He said all questions were answered and allowed the 341 to be concluded. In your experience, is the passing of the 10 days significant, or is it a meaningless timeframe since they still have 707(b)(3) for the full 60 days? If the Panel Trustee is waiting for the US Trustee to make a determination, do they usually wait the full 60 days before they issue a determination of asset or no asset in one's case?
          Yes. It is one of those little "loop holes" we have all heard about. As HHM stated, they can throw you that stalling act, just because they haven't had time to review your paperwork. As HHM implied, it is meaningless. 'Hub
          If I knew it all, would I be here?? Hang in there = Retained attorney 8-06, Filed 12-28-07, Discharge 8-13-08, Finally CLOSED 11-3-09, 3-31-10 AP Dismissed, Informed by incompetent lawyer of CLOSED status, October 14, 2010.

          Comment


          • #6
            Originally posted by AngelinaCatHub View Post
            Yes. It is one of those little "loop holes" we have all heard about. As HHM stated, they can throw you that stalling act, just because they haven't had time to review your paperwork. As HHM implied, it is meaningless. 'Hub
            OK, so, if the 10 day deadline is meaningless, and the Panel Trustee is waiting for the US Trustee to make a decision, then, will the Panel Trustee wait the full 60 days before they file the actual determination as to whether the case is an asset case or a no asset case? I may be incorrect, but, it does not seem to me that people are having to wait the full 60 days for the Panel Trustee to wait for the US Trustee before they file the asset/no asset determination.

            Comment


            • #7
              Originally posted by filed View Post
              OK, so, if the 10 day deadline is meaningless, and the Panel Trustee is waiting for the US Trustee to make a decision, then, will the Panel Trustee wait the full 60 days before they file the actual determination as to whether the case is an asset case or a no asset case? I may be incorrect, but, it does not seem to me that people are having to wait the full 60 days for the Panel Trustee to wait for the US Trustee before they file the asset/no asset determination.
              Then Panel Trustee does not need to wait for the United States Trustee (UST). In fact, in the cases where the UST move for dismissal for Abuse or Totality of Circumstances, I've seen the Panel Trustee already issue their "No Distribution" Report.

              One has nothing to do with the other. The Panel Trustee should be able to proceed with a "no asset" determination without consideration of what the UST is doing. However, if there are assets, then the Panel Trustee will have probably already asked the UST if they are "interested" so that the Panel Trustee doesn't waste his/her time with a case that is going to be dismissed anyhow.

              If you actually look at the cases in my area (Florida), you'll find that "No Asset" determinations are predominantly issued and filed within a day or two of the 341 Meeting!
              Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
              Status: (Auto) Discharged and Closed! 5/10
              Visit My BKForum Blog: justbroke's Blog


              I am not an attorney. Any advice provided is not legal advice.

              Comment


              • #8
                Originally posted by AngelinaCatHub View Post
                Yes. It is one of those little "loop holes" we have all heard about. As HHM stated, they can throw you that stalling act, just because they haven't had time to review your paperwork. As HHM implied, it is meaningless. 'Hub
                By the way, 'Hub, not to try to put words in HHM's mouth, but, I think he was saying that the US Trustee sometimes files the notice of POA just to buy time, and in that context it may be meaningless if he DOES file the POA...My situation is that no POA was filed within the 10 days, and I am asking for opinions as to whether this is a significant positive in my favor, or if the 10 days without a POA is meaningless and I really need to worry fully for the full 60 days.

                Also, my attorney says the Panel Trustee is not saying "no asset" yet because they are waiting for the US Trustee to do their review of my answers and the documents I provided. If this is true, and if the 10 days is meaningless, then, it would seem to follow that the Panel Trustee will not make a determination of No Assets until the full 60 days for the US Trustee's 707(b)(3) review have concluded, and this does not seem to be common or correct given what I have read on this forum.

                Comment


                • #9
                  Originally posted by justbroke View Post
                  Then Panel Trustee does not need to wait for the United States Trustee (UST). In fact, in the cases where the UST move for dismissal for Abuse or Totality of Circumstances, I've seen the Panel Trustee already issue their "No Distribution" Report.

                  One has nothing to do with the other. The Panel Trustee should be able to proceed with a "no asset" determination without consideration of what the UST is doing. However, if there are assets, then the Panel Trustee will have probably already asked the UST if they are "interested" so that the Panel Trustee doesn't waste his/her time with a case that is going to be dismissed anyhow.

                  If you actually look at the cases in my area (Florida), you'll find that "No Asset" determinations are predominantly issued and filed within a day or two of the 341 Meeting!
                  Thanks, justbroke...I also thought they were unrelated, but, my attorney said that the US Trustee was the boss, and since they requested documents and had questions that they Panel Trustee would wait before they filed the notice of no assets/no distribution.

                  Since I also thought they were unrelated, I did not understand why my attorney would say this, and it seems you are confirming my "worries" that there is something in my petition that the Panel Trustee is concerned about asset-wise, and this is why they are not yet filing no asset/no distribution, and it has nothing to do with waiting to see what the US Trustee is going to do or not do.

                  Comment


                  • #10
                    filed,

                    All I can offer is... Don't sweat it. It will work itself out... In fact, not much you can do to change things at this point. Let it ride and respond when something comes up.

                    Remember, things will pass very quickly and you will be standing on the other side of it...

                    Comment


                    • #11
                      lichteda, Thank you, I am sure that is great advice. Unfortunately, one of my "assets" is a 14 year old SUV which I have fully exempted, but, it has just broken down and needs a $550 repair. I need to get this fixed, but, I do not want to spend $550 and then find out that the Panel Trustee (for whatever reason) decides to challenge my exemption on this asset, and so....I kinda need to know. I cannot wait 60 days to find out if I am "no asset/no distribution" before I get this vehicle fixed or make some other arrangement. I just feel trapped while the clock ticks and I wait for the panel trustee to determine no distribution.

                      Comment


                      • #12
                        filed,

                        I completely understand, been there myself...

                        Brighter people then me can chime in... i expect there is a way to address your situation.

                        Comment


                        • #13
                          Aah, so now we understand your stress.
                          There's a bit of a rock and a hard place.
                          Crossing fingers for you that you hear something very soon. Does your atty have any thoughts on the subject?
                          I'm guessing you can buy back the vehicle if necessary.

                          Keep On Smilin'

                          Comment


                          • #14
                            I also feel like I should be going out to try to find a second job, but, with the US Trustee reviewing the case for 707(b), well, that kind of creates the incentive to do nothing for at least the next 60 days, and I just do not like being the person who has to sit and do nothing. If I get a second job and earn money, then, that jeopardizes the case on totality of the circumstances....sitting and doing nothing is very difficult.

                            Comment


                            • #15
                              Originally posted by keepsmiling View Post
                              Aah, so now we understand your stress.
                              There's a bit of a rock and a hard place.
                              Crossing fingers for you that you hear something very soon. Does your atty have any thoughts on the subject?
                              I'm guessing you can buy back the vehicle if necessary.
                              keepsmiling, My attorney says not to worry, I am clearly a "no asset", the SUV is worth perhaps $1,500 (less now that its broken down, LOL!) and its more than exempted, but, I can't spend any money on it until I KNOW there won't be any challenge to it - I don't want to waste the money fixing a car that is not even mine at the moment (until its abandoned).

                              My attorney says the Panel Trustee is waiting for the US Trustee to review my case for 707(b), but, justbroke helped me to conclude that there is no reason for the Panel trustee to wait for the US Trustee before they file me a no distribution. Now I am wondering why my attorney told me the Panel trustee was waiting for the US Trustee, when they are unrelated as to assets versus income.

                              Comment

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