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Trustee filed motion to modify, objection submitted, awaiting response. Have a ??

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    Trustee filed motion to modify, objection submitted, awaiting response. Have a ??

    Hi everyone.
    Ok; so, our attorney has submitted the objection to the motion to modify our confirmed plan.
    The objection deadline is this Thursday, September 03.
    The attorney said, to assume, to make the normal, standard payment for this month, which is due Sep. 10.

    My question:
    if we do not hear anything from the trustee by Thursday Sep. 10, then what is the course of action?
    I would contact our attorney at that point. But, for now, I am just thinking ahead.
    I doubt we will get into this scenario, but it's worth considering nonetheless.

    Thanks!

    #2
    It depends on whether or not your court uses "negative noticing" (sometimes called "judicial" noticing) and whether or not your attorney did such. It reads as though your court uses negative noticing because you used the language "deadline" in your post). Regardless of the negative noticing, your attorney may seek a hearing or seek an order of the court to grant your motion. Negative noticing allows the movant -- you in this case -- to ask the court to make a default judgement based on the lack of response from the other part (the trustee in this case). The judge could also demand that the trustee actually response in a court issues motion to compel answer. Your attorney might, also, submit a proposed order on Friday (September 4) which includes language that the motion was on negative/judicial noticing and the trustee failed to respond. The judge could accept that and rule in your favor or set it for hearing.

    I assume that your attorney and the trustee's office talk about matters somewhat and that your attorney already knows what the trustee wants to do.
    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
      Thanks Justbroke.
      In the Notice of Motion, Part I states:
      OBJECTION DEADLINE: SEPTEMBER 3, 2020

      So, at this point, we wait.

      Comment


        #4
        Yes, we wait. Trustees are notoriously slow and love to file last minute. So I will wait with you. Let us know on Thursday.
        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
          There is a bit of a disconnect here.

          1. Trustee files a Motion to Modify.

          2. The Motion states that any responses/objections to the Motion are to be filed by 9/3.

          3. Attorney files a timely Objection to the Motion to Modify.

          Is this not what happened? If so. . .

          The next thing that should happen is the setting of a Hearing on the Motion. This, depending upon local procedure, will be done either by the Court or by the Trustee. So, you should be receiving a Notice of Hearing within the next week. The Hearing will be sometime thereafter.

          Des.






          Comment


            #6
            Yup, I missed that the trustee filed the motion. Looks like I only read the body of the post. So, read what des posted, and ignore my post. The objection to the motion will certainly result in a hearing. Hopefully your attorney is working with the trustee to come to some agreement before the hearing and may be able to file a stipulated order.

            I need more sleep.
            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
              Originally posted by justbroke View Post
              I need more sleep.
              Me too. . . and that's where I am headed now.

              Be safe my friend.

              Des.

              Comment


                #8
                Thank you despritfreya and jb for your responses.
                If there is a hearing are we required to attend and provide bank statements to back up what our attorney has objected to? (a $643 monthly increase PRIOR to my husband being informed of his about $400 net pay increase effective 9/11/20. )
                Do we even need to prepare for a court appearance?

                Comment


                  #9
                  Thank you despritfreya, and justbroke.
                  And justbroke: thank you for "waiting with us" - that does help, much appreciated.
                  Below, is the Part 2 snippet of the formal letter. I left this out earlier, since I reasoned, it may be T.M.I. (Too Much Information).
                  The attorney did say, this could end up going to a hearing.
                  I echo Barbisi's question: will we need to attend the hearing? I will follow up with the attorney if necessary, on Friday September 04.

                  Part 2
                  NOTICE IS HEREBY GIVEN that the Standing Chapter 13 Trustee has
                  filed a Motion to Modify Confirmed Chapter 13 Plan with the Court and requests the following
                  relief: Trustee requests that Debtors’ Confirmed Plan be Modified to increase plan payments
                  and increase distribution to Class IV creditors.
                  If you oppose the motion or object to the requested relief your objection and request for
                  hearing must be filed with the Bankruptcy Court on or
                  before the objection deadline stated above, served on the movant at the address indicated below,
                  and must state clearly all objections and any legal basis for the objections. The court will not
                  consider general objections.
                  In the absence of a timely, substantiated objection and request for hearing by an interested
                  party, the court may approve or grant the requested relief without any further notice to creditors or
                  other interested parties.

                  Thank you again, and have a great night!

                  Comment


                    #10
                    As I attempted to allude, your attorney should be working with the Trustee to iron out and come to an agreement. If no agreement can be formulated, then it will go to a hearing. The first hearing is likely not an evidentiary hearing so they may just continue to argue. If your attorney requires additional documentation, at the request of either your attorney or the trustee, I'm sure you'll be told.

                    The debtor typically doesn't need to attend this type of hearing unless it's an evidentiary hearing and the attorney (or Trustee) wants testimony from the debtor.
                    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


                      #11
                      Yes, I understand... you 'eluded just fine'.
                      Your comments reflect those of our attorney.
                      Good to know... we would simply prefer to not attend a hearing, since, honestly, we're tired of this same old song and dance. Same ol drama, different day.

                      Comment


                        #12
                        Well, now we understand that a hearing will be mandatory (unless the trustee is willing to negotiate an amount we can afford).
                        It looks like we will lose big time if a judge oversees the decision (we were warned about this during the confirmation proceedings by our attorney.)
                        I definitely feel like some one is working over time to rook us out of a discharge -just how hard is it supposed to be to get to the end of a 5 year plan?

                        Comment


                          #13
                          Barbisi what I am learning, have learned, is that judges act more like referees in the bankruptcy court. They will make a decision to override the trustee or find the the trustee's assertions are correct. In the end it comes down to the evidence presented. I have seen my judge override the Chapter 13 more times than I expected -- although it's a small percentage. I have seen my judge give people more time when the Chapter 13 Trustee wanted to dismiss the case (a month to two months). There is a balance there somewhere because most Chapter 13 debtors actually need the protections of the Chapter 13 in order to "reorganize" their debts and make some attempt at paying back something to the unsecured creditors.

                          Your case is unique, as are most. You just happen to be in that spectrum of Chapter 13s that are too fluid, unpredictable, and with changing needs. While the process allows for modification to deal with these things, it's never to be on the side where the Trustee is asking for more money.

                          As always, wishing you the best.
                          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


                            #14
                            Thank you jb for your kind words!
                            I know you're right that this process is definitely only on the side of the court and the trustee - others have seconded that on these forums.
                            The only way a debtor will make it to discharge easily is : no medical issues (i.e. no chronic conditions or major surgeries ) no major gross pay raises that don't translate into big net pay increases, no life changes (i.e. no job loss, debtor deaths,no forced relocation,etc.)
                            If only my husband had worked for a company that rewarded him with job market increases and better benefits (like this current company) for fifteen years instead of a tight- fisted firm that finally gave him the boot, we wouldn't have ever had to file in the first place. Working for R. was like taking early SS benefits where you permanently lose 20% of your monthly check forever. What a rip off!

                            Comment


                              #15
                              Originally posted by Barbisi View Post
                              The only way a debtor will make it to discharge easily is : no medical issues (i.e. no chronic conditions or major surgeries ) no major gross pay raises that don't translate into big net pay increases, no life changes (i.e. no job loss, debtor deaths,no forced relocation,etc.)
                              I say this all the time and I sometimes quote one of the best bankruptcy judges that I have had the privilege to read. He wrote, in an opinion that showed that the means test is arbitrary and mechanical, looking at the past (this was before Lanning), and that debtor's plan were aspirational. That means that the debtor proposes a plan which doesn't allow for any deviation. Blue sky, as I call it. While flexible, it doesn't mean that it can bend enough to deal with issues.

                              Originally posted by Barbisi View Post
                              If only my husband had worked for a company that rewarded...
                              I say that to myself all the time. I should have stayed in my DoD job and I would now be retiring.

                              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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