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Modification - when is there a hearing?

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    Modification - when is there a hearing?

    My attorney filed a modification to my plan due to the whole 'VA benefits are no longer income' case law. I also lost child support for a while due to my ex just deciding not to pay.

    We filed a modification based on those grounds. Tuesday marks day 21 of filing a timely response. If nobody has filed an objection - INCLDUING the trustee - is the modification automatically granted?

    #2
    That depends on whether your court does "negative noticing" (a/k/a judicial noticing) which allows the judge to rule on the merits of the motion without a response from anyone. Typically the Trustee would at least file a response consenting if they have no objection.

    Too tough to guess as that's a procedural question.
    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
      Originally posted by justbroke View Post
      That depends on whether your court does "negative noticing" (a/k/a judicial noticing) which allows the judge to rule on the merits of the motion without a response from anyone. Typically the Trustee would at least file a response consenting if they have no objection.

      Too tough to guess as that's a procedural question.
      I hate the word "may" when it comes to the legal system. The verbiage that is "necessary" for a negative notice was used in my attorney's motion to the court, so I would assume that he would push for a summary judgement if nothing has been filed by tomorrow. T

      L. Rule 7056. SUMMARY JUDGMENT Motions under FRCP 56 do not require negative notice. However, responses and responsive affidavits must be filed no later than 21 days after the date of service, unless the Court, for cause, extends or shortens the time. The Court may rule on the motion with or without a hearing.

      Comment


        #4
        The usual procedure is that once the time period, in the negative noticing, expires, the movant (your attorney) would file a proposed order and a motion . I don't know if 7056 applies in your motion to modify, but the "may" just means that the court could consider the motion, as filed,without a hearing. This actually works in most cases! The entire purpose of negative noticing is specifically to avoid a hearing or wasting the court's time.
        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


          #5
          Well, she filed an objection on the last day.

          Trustee is disputing allowable expenses for food! We used the IRS allowable expenses. Are they allowed to dispute that? IRS guidelines said allowable expenses are just that regardless if I spend that much or not.

          Comment


            #6
            Do you travel for work? My Trustee complained that on some days, travel days, my employer paid my meals.

            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


              #7
              Started adding up expenses, and with truck repairs my auto expenses are more than covered; extra child school and extra curricular (tutoring, swim lessons) are more than what I had put down. Medical is TBD based on a recent surgery. Worst case she says no and that's only about $200 difference in expenses.

              Food - it's short of the allowable expenses, but she approved it when I was in a 100% repayment plan, but wants to gripe now? Attorney expenses were not even on my old budget - my mother paid the last $4k. She griped about that, but now it's documented as expenses. So I'm sitting even worse off than what I showed on my budget. Not sure what gripe she will have now.

              Comment


                #8
                If you're going from a 100% plan to anything short of 100%, the Trustee is going to question many expenses. Think of it this way, when you were 100% you could live on X food, but now that you're not in a 100% plan, you want X food to be X+Y in food. The Trustee sees that at padding.

                Whenever going through a motion to modify a confirmed plan, expect push back and scrutiny especially where a.) you were in a 100% plan, or b.) your new plan proposes to pay less to the unsecured creditors.

                With a 100% plan, no one even cares about your expenses. In a less than 100% plan (or a modification of a 100% plan to one that no longer will pay 100%), expect the expenses to be reviewed. Expect the most scrutiny when you're also over the median income.

                Good luck.
                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


                  #9
                  So we filed a response to the trustees objection. Original hearing was for the 15th. Last week she said she didn’t have enough time to look over things and asked us to push a month. We said two weeks. Right now she’s stuck on the VA disability income under the HAVEN Act. Everything else she left alone after submitting proof.

                  My attorney thinks we have a good case. She proposed a $1k reduction. We said $2k. No response. If it goes to court and a judge says I don’t have to pay anything into it, it is a $3200 decrease.

                  Quick update - ill
                  continue to do so as I remember.

                  Comment


                    #10
                    I hope this all goes well. There is no caselaw with the Haven Act yet, especially when it comes to retroactively applying the statute. I'm sure this is happening to many veterans across bankruptcy districts until we get some synergy in how the Office of the United States Trustee (OUST) responds. Typically, the OUST sends out guidelines to Trustees (across all bankruptcy chapters) and at least we'd know the baseline.

                    I'm sure you'll keep us up to date.
                    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

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