20/20 Hindsight and Misrepresented Income

[debee]

yes, i think that's the point here...

Well, in my post to the OP I said I didn't know because I don't. I read a few articles looking for info and kept running into the "doesn't count on means test, might count on schedules I/J" comment.

As for the ch13 case, it's just interesting (to me at least) that the trustee would expect the debtor to be paying the creditors with exempt income. Not the OP's state, so I didn't mention it for her sake. That tidbit was for you.

[tobee43]

I agree. That's why I encouraged Peeps to get into her lawyer.

BTW: I just read about a Florida case this morning ... In re: Rodgers

Summary: A Chapter 13 plan that provided for payment of only $100.00 per month by debtors whose schedules disclosed net disposable income of $2,056.16 per month was not proposed in good faith, though this surplus resulted from exempt income that the debtors received, in the amount of $2,128.00 per month, in Social Security disability benefits. A bankruptcy judge in Florida held that the exempt nature of this income did not alter the fact that it was disposable income available to fund the debtors' plan.

yes, i think that's the point here...also that's a 13...so the courts are looking to apply every single dime one has or had in that case example.

what is even scary here, for example, is many times it depends on which trustee you get, they can and have the right to use their own discretion, many times..what about the LAW i ask?? but i have leaned better...law is NOT justice and justice is certainly NOT law, ain't that the sad truth of it...

i think it may be "easier" in a 7 just as applied in respect to the means test and when applied to the sch j. it's a tough one to call for certain.

[debee]

deb...i think that may depend on where you file...

I agree. That's why I encouraged Peeps to get into her lawyer.

BTW: I just read about a Florida case this morning ... In re: Rodgers

Summary: A Chapter 13 plan that provided for payment of only $100.00 per month by debtors whose schedules disclosed net disposable income of $2,056.16 per month was not proposed in good faith, though this surplus resulted from exempt income that the debtors received, in the amount of $2,128.00 per month, in Social Security disability benefits. A bankruptcy judge in Florida held that the exempt nature of this income did not alter the fact that it was disposable income available to fund the debtors' plan.

[tobee43]

The only thing I read anywhere that gave me pause was that while exempt from garnishment, bankruptcy law, etc your ssdi is still income and you will need your schedules I/J to work out right for a chapter 7. Not positive about that, but I read it in a few different places. Have you run some numbers on those yet? You're under median, so no presumption of abuse, but you may still be a candidate for a 13. Not sure what your position is on that.

Also, if it were me, I would be in the lawyer's office yesterday. Why not just find out for sure and bring an end to the stress and worry. Just an idea.

deb...i think that may depend on where you file...our pension and ss...(because the pension was police, firemen) was in fact exempt as income??..wow...right? personally, i was in shock about the pension...now we are not talking about a wage garnish here..i'm talking about our means test and sch j...

was i scared??? YES!! i thought this atty was maybe nuts, i'm thinking...this firm is going to throw us into a 13...the trustee was going to turn us into an asset case...but i'm telling you, it went fine in the court we were in.

that's what makes this so darn difficult...what may apply to ONE does not apply to another...what a MESS!

[BKlooker]

I agree with what debee and others have said. This is ultimately going to be totally tied up with whatever local precedence and case law and recent rulings have been made regarding this.

Fish around and see if there are lawyer in your area who claim to work specifically with veteran affairs and BK. Do some sniffing and make sure it's a good, reputable lawyer too, and not just a BK mill, as it sounds like your case is going to need some kid-glove treatment. There may also be other ways to protect that money to be extra safe, particularly if you are willing to wait a year to file.

[debee]

....but the fraud here is the abuse prior to filing your bankruptcy......

Tobee has a point here. Plus you have an undisputed, bona fide mental illness for which you receive SSDI. Your judgment was impaired.

[debee]

The only thing I read anywhere that gave me pause was that while exempt from garnishment, bankruptcy law, etc your ssdi is still income and you will need your schedules I/J to work out right for a chapter 7. Not positive about that, but I read it in a few different places. Have you run some numbers on those yet? You're under median, so no presumption of abuse, but you may still be a candidate for a 13. Not sure what your position is on that.

Also, if it were me, I would be in the lawyer's office yesterday. Why not just find out for sure and bring an end to the stress and worry. Just an idea.

[Peeps]

Thanks Debee. I know... it's really a mess. That's, of course, why all the insight from everyone on the forum is so appreciated.

[debee]

Carpenter v. Ries, which ultimately landed in the Eighth Circuit Court of Appeals was decided in Aug 2010.

In that case, Carpenter was trying to protect his lump sum using federal exemptions. He was in the 8th circuit. You're in the 10th and you can use Colorado Revised Statute 26-2-131 which contains specific language exempting your SSDI from the operation of any bankruptcy law.

When I saw the amount of cash you were sitting on, I thought you would have a definite problem too. Now I'm not so sure. I would run it by a few local lawyers in free consults and if they all give you the thumbs up, I'd trust that.

[Peeps]

Carpenter v. Ries, which ultimately landed in the Eighth Circuit Court of Appeals was decided in Aug 2010. I wouldn't know a case number if it jumped up and bit me on the butt, but I have a feeling I'll know it soon enough because it citing it would be important, I agree. I hope others on the forum can make use of it too if it is applicable to their cases.

[tobee43]

Pretty sure SSDI is exempt in CO, since we use the federal statute for social security and disability. I still think it'll garner some attention, though, which is not good.

The same issue was recently tested up in MN when a BK trustee went after a lump sum SSDI payment of a BKer. The court agreed with the trustee but the decision was later reversed on appeal... in large part to the interpretation of the federal statute. Anyway, I'm not quite ready to trust the whole thing and am still doing lots of research.

when was the most current appeal?? one would be hopeful, that decision could or would be cited in your case...i really understand about not wanting to trust it all, even with researching it's difficult. one finds all these cases and they are point on to the situation..they are cited and the judge still turns a blind side ...even to the written law. it's a tough one...but really, i truly believe, and want to believe, you will be fine with the ssdi money. at least i really hope you are!

[Peeps]

Pretty sure SSDI is exempt in CO, since we use the federal statute for social security and disability. I still think it'll garner some attention, though, which is not good.

The same issue was recently tested up in MN when a BK trustee went after a lump sum SSDI payment of a BKer. The court agreed with the trustee but the decision was later reversed on appeal... in large part to the interpretation of the federal statute. Anyway, I'm not quite ready to trust the whole thing and am still doing lots of research.

[tobee43]

your big problem is there is no way you're going to be able to protect the 43K unless you wait a year to file to spend it down.

ssi is exempt income...so they can't touch it...

actually in some districts...ui is exempt as well and protected under the ss act...so if peeps money was from ssdi...they are not entitled to that money.

however, if someone knows were ss is not exempt please chime in..

[tobee43]

I have a question about Google voice...if your creditors have your home phone and your cell #, how can you use google voice to avoid calls?

also depending on your home phone and your cell company, you can put "BLOCKS" on the creditors numbers and or exchange the pickup to google voice mail. i don't know how to "set" it up, but i have known many that have done it...we just used the blocks and that was it.

[debee]

your big problem is there is no way you're going to be able to protect the 43K unless you wait a year to file to spend it down.

ya, i second that.