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    Motion to Dismiss

    We are in our 5th year of Chapter 13 and I have been watching Pacer for discharge but this morning I found out that the Trustee put in a motion to dismiss due to non payments. We have the payments coming out my husbands check. They said that we are short about 6k. I don't know how this is possible. I did check NDC and realized that they have 1300 on hand from last month and another 1300 is due to come in this month. I am just venting I will contact the attorney on Monday but I wanted to come here to see if anyone ever experience this

    #2
    Welcome to BKForum.

    I would say that it doesn't happen that often, especially when you have a wage deduction order (WDO) in affect. It reads as though maybe it's a shortfall in the calculation and perhaps no one caught it until now. You'll have to work with your attorney to see if it's a shortfall.

    A shortfall occurs when the Trustee and the debtor's attorney don't realize that the monthly payments (to the Trustee) will never meet the Plan Base amount. The Plan Base is a value calculated at the last confirmed plan and is the minimum amount of money the debtor must pay into the plan.

    However, you wrote that your motion to dismiss says "non payment." Non-payment means something entirely different than a shortfall. I wonder if you have a WDO and your employer hasn't been sending money? The only way to check is for your attorney to go through the motion to dismiss, contact the Trustee, and find out what is the specific issue. Hopefully it's just a misunderstanding and there is no issue.
    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

    Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

    Comment


      #3
      Justbroke, thank you so much for responding.

      I am hoping this is a mistake, because for the 5 years my husband has been at the same job and all the payments are taken out his check. I don't know if they are not sending in the payments but I can see on NDC that money is being received almost every month. So far they have collected over 88k. I don't understand the math though our Monthly is 1464.00 for 60 months, it's not adding up to 94k as they are suggesting as the full payment but closer to the 88k that they already collected. This is so stressful, I can't wait to talk to my attorney on Monday.









      Originally posted by justbroke View Post
      Welcome to BKForum.

      I would say that it doesn't happen that often, especially when you have a wage deduction order (WDO) in affect. It reads as though maybe it's a shortfall in the calculation and perhaps no one caught it until now. You'll have to work with your attorney to see if it's a shortfall.

      A shortfall occurs when the Trustee and the debtor's attorney don't realize that the monthly payments (to the Trustee) will never meet the Plan Base amount. The Plan Base is a value calculated at the last confirmed plan and is the minimum amount of money the debtor must pay into the plan.

      However, you wrote that your motion to dismiss says "non payment." Non-payment means something entirely different than a shortfall. I wonder if you have a WDO and your employer hasn't been sending money? The only way to check is for your attorney to go through the motion to dismiss, contact the Trustee, and find out what is the specific issue. Hopefully it's just a misunderstanding and there is no issue.

      Comment


        #4
        prindia1 look on the NDC and look at what it says for your "Plan Base". If that reads $94K then there is something wrong... or your monthly payment was not calculated correctly. When this happens, it's usually that you have property that -- when your case was filed -- worth more than any exemption. This is known as the "liquidation value" and represents the minimum you must pay in a Chapter 13.

        You should definitely go back to your attorney and review the paperwork. I hope it's a miscalculation in the plan base (the $94K) and you're back to being on track. If it's the other issue -- plan base issue -- a lot of people have some explaining to do (attorney and Chapter 13 Trustee).
        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

        Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

        Comment


          #5
          This was the annual report from 2022 in September.

          TOTAL PAID IN: $78,528.00 ... BASE: $87,840.00 [some things removed by moderator]

          If I am reading that correctly my base is 87840.00 which I have paid above that. Don't understand what the Unsecured Dividend is or the Unsecure Pool.

          Originally posted by justbroke View Post
          prindia1 look on the NDC and look at what it says for your "Plan Base". If that reads $94K then there is something wrong... or your monthly payment was not calculated correctly. When this happens, it's usually that you have property that -- when your case was filed -- worth more than any exemption. This is known as the "liquidation value" and represents the minimum you must pay in a Chapter 13.

          You should definitely go back to your attorney and review the paperwork. I hope it's a miscalculation in the plan base (the $94K) and you're back to being on track. If it's the other issue -- plan base issue -- a lot of people have some explaining to do (attorney and Chapter 13 Trustee).
          Last edited by justbroke; 03-25-2023, 01:56 PM. Reason: [edited by moderator to remove some details]

          Comment


            #6
            Originally posted by prindia1 View Post
            This was the annual report from 2022 in September.

            TOTAL PAID IN: $78,528.00 ... BASE: $87,840.00 [some things removed by moderator]

            If I am reading that correctly my base is 87840.00 which I have paid above that. Don't understand what the Unsecured Dividend is or the Unsecure Pool.
            I agree. Your plan base looks like $87,840. The unsecured pool is your unsecured creditors (like credit cards and "unsecured" personal loans). Looks like you are in a 100% plan and you have appeared to have paid that.

            Just from plain reading of that, your plan base is just shy of $88,000 as you said. Have you completed your plan payments (already made 60 payments)? If the plan base is $94K rather than the $88K it says on the NDC, someone needs to explain that to you.

            ‚Äč
            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

            Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

            Comment


              #7
              Our first payment was filed in January of 2018 , 02/08/2018 first payment confirmed 3/16/2018. From our calculations we have made 61 payments.... I could be wrong

              Comment


                #8
                Originally posted by prindia1 View Post
                Our first payment was filed in January of 2018 , 02/08/2018 first payment confirmed 3/16/2018. From our calculations we have made 61 payments.... I could be wrong
                There is something wrong and maybe that was caught in the audit. That plan base you read on NDC says $88K. It seems that you should be done with plan payments (at 60 payments).

                Something wicked is happening and I will never be able to explain it. Your attorney has the details and this clearly needs someone to take a very close look at this.

                Their is just something seriously wrong or miscalculated somewhere. I just realized your plan base is $87.8K and you only paid in $78.5K. You are off by at least $6K and that's a bad thing if a.) that's your real plan base, and b.) your final payment has already passed. I would be asking how no one caught this. Perhaps you had a step-up plan but no one ever told you that your plan payment needed to increase at a certain point.

                My calculation is that if you had been paying $1,464/month for the 60 months, your plan would be exactly $87,840.00. To me, that makes the $87,840 number seem "plausible" at first glance. But the question is what does your confirmed plan or your last "modified" plan say as to the plan base. I'm hoping someone just keyed it in wrong, or your original plan base was based on $1,464/month but that changed at confirmation (or after confirmation) to the $1,300/month.

                Someone has to figure this out for you. Your attorney is your best resource.



                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

                Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

                Comment


                  #9
                  The 78.5k was from September 2022. I was only able to find the base on the last report on NDC. I went through Pacer and can't find any changes after confirmation to the 1300 a month but that is what has been taken out since 2018. Some months I do see 2028 but I am guess those are the months with 3 pay checks. Also, up to date NDC say 88k just like the motion to dismiss from the trustee. I will be at my attorneys office bright in early tomorrow because I want answers... My life has been on hold for the last 5 years and now this . Thank you for all your help.

                  Comment


                    #10
                    I missed that you wrote "annual" report as of September 2022. I reversed calculated a payment of $1,464/month for 60 months to get to $87,840. I missed that you said, earlier, that your monthly payment was $1,464/month but you started with saying that you're only paying $1,300 a month. There is something wrong.

                    I'm guessing that you're paid bi-weekly?

                    The problem is that your new plan base $94K. The question is where did the Trustee get that number if it's not on the NDC and not in your confirmed (or modified) plan.


                    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

                    Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

                    Comment


                      #11
                      Yes, we paid bi-weekly, I have no idea where he got that number from because it is no where on Pacer. I went through every document. Yes at 1464 it would be 87840.00 and we paid to date. I went back to NDC we had 10 months that we paid 2028.00 and the other months the exact number was 1352.00. To date we have paid a total of 88,668.00 which is higher than the 87840.00. I am all types of confused right now.

                      Comment


                        #12
                        What makes it worse is that according to your original post, your first payment was in January 2018. That mans that your last payment (60th) should have been in December 2022. I wonder what is happening and I too am confused.
                        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

                        Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

                        Comment


                          #13
                          While your lawyer is trying to fix this problem, you might look at plan B and try to borrow your way out of it from a friend/family member, a retirement account, or a bank. It doesn't matter what the interest rate is because the discharge is worth it even with a 100% plan. Don't borrow unless that's the only option. Just line up some potential sources of borrowing for now just in case.

                          Comment


                            #14
                            Just the interest savings alone, on that 100% plan, is worth finding the money.
                            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

                            Any advice provided is not legal advice, but simply the musings of a fellow bankrupt.

                            Comment


                              #15
                              Originally posted by flashoflight View Post
                              While your lawyer is trying to fix this problem, you might look at plan B and try to borrow your way out of it from a friend/family member, a retirement account, or a bank. It doesn't matter what the interest rate is because the discharge is worth it even with a 100% plan. Don't borrow unless that's the only option. Just line up some potential sources of borrowing for now just in case.


                              Thank you! I'm a realtor and closed a property that was able to cover the difference and we paid them. Fast forward today, we just received a refund from the trustee because they also received payment from out payroll. Now NDC says complete... waiting on a discharge.

                              Comment

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