Going in front of a judge...has anyone been at this point and won?

[IamOld]

mylife CONGRATULATIONS!!!!!!!!!!!!!!!!!!!!!!!! and best wishes!!!!

[mylife]

FINALLY FINALLY FINALLY CONFIRMED!!! We agreed to a payment of $850/month and the Trustee approved. This was before we went in front of the judge. Thanks to all of you who answered my questions and for all of the information you provide as I also learned from your responses to others. We actually only have about four more years left since we filed in January and is doable.

[mylife]

So glad the site is back up and running!!!

Thanks for that information on reporting the atty because I looked into that today. All of the information I have provided thus far has been fact. Whether important facts have been omitted it's hard to say as I don't know what else would be relevant.

Here is where we are. The Ttee came back today and suggested a new payment of $985 which the atty said is the $400ish disposable income and $500ish truck payment that we no longer have because we have crammed down the payment and is paying it in the plan. Told him we are struggling to make the $750 payment and the $985 is unrealistic unless we surrender our home and move into a 1 bedroom apartment. We asked atty what will happen next year when my income is reduced while on maternity leave and when we're paying close to 1k month in childcare and he said he'll have to amend the plan but it's no way the payment can go down because secureds are only receiving 2 or 4% I can't remember.

I need some ammunition to go to court with. Is there anything we should or should not say? What might help our case? If not confirmed, we considered cancelling (not sure of correct terminology) the 13 and going with another atty. Any advice is appreciated as we go to court Wednesday. The atty said the judge usually sides with the ttee, is this true?

[lrprn]

To me, this sounds like your attorney just doesnt want to actually do his/her job...

I agree. No one, including the trustee, can prevent you from modifying a Ch 13 plan when your financial circumstances have changed for the long-term.

If what you've shared with us is 100% true and hasn't been exaggerated or had other important facts omitted, then I were you I would seriously consider reporting your attorney to your state's bar association for misrepresentation. Here's how to do it:
- Report a Lawyer to the Bar - http://ezinearticles.com/?Report-Law...ved&id=2326899
- Reporting a Lawyer for Ethics Violations - http://legal-malpractice.lawyers.com...iolations.html

And here's the appropriate agencies to contact by state:
Directory of Lawyer Disciplinary Agencies 2011/12 - http://www.americanbar.org/content/d...thcheckdam.pdf (scroll down to your state)

[mylife]

It sounds as if our atty is spineless or ignorant of the law. All of this is why I want to go in front of the judge so both sides (atty & ttee) can be exposed. If it were possible, I would get out of it now and get another atty, but that's no guarantee of a different ttee.

[Pandora]

As far as modifying the plan the atty said no. They will not allow us to skip any payments, make lower payments or modify because the unsecureds are already getting very little. We'll basically have to deal with it.

This bothers me immensely - under what law are they saying your plan cannot be modified due to "unsecureds getting very little" ? There are Ch. 13 plans that have 0% being paid to unsecured creditors, moreover BK law specifically states otherwise:

Section 1329: http://www.law.cornell.edu/uscode/us...9----000-.html

To me, this sounds like your attorney just doesnt want to actually do his/her job...

[IamOld]

I'm so sorry to hear that mylife...but like karm43 said - once you have the baby you have an additional person so would that allow you to change your plan by definition???

[mylife]

As far as modifying the plan the atty said no. They will not allow us to skip any payments, make lower payments or modify because the unsecureds are already getting very little. We'll basically have to deal with it.

I live in MD and I don't know if it's the ttee or atty who is being most difficult.

[karm43]

If your having a baby, you could probaly remodify the plan. Your allowance will be bigger. Just have to stick it out until Mar.

[lrprn]

In looking at income is it more involved than what we're doing by just looking at our ytd earnings?

It can be. The lookback for six months to calculate "income" can include many types of income (from http://www.mwortmanlaw.com/chapter7-means-test.htm):
- Gross (before tax and deductions) wages, salary, tips bonuses, overtime, and commissions (my emphasis)
- Business income (net of expenses)
- Rental and other real property income
- Interest, dividends, and royalties
- Pension and retirement income
- Any amount paid by another person for the household expenses of the debtor, including child or spousal support
- Unemployment compensation that is not a social security benefit
- Any other income" as defined by your local court and/or other case law decisions in other districts around income

Note the first bullet point includes commissions. This is why working with your lawyer to figure out how your commission is going to count *in your local court* matters so much. Recent case law decisions are pointing courts toward not counting temporary income like commisions and bonuses when calculating total income for the Means Test, but some courts still count them.

[mylife]

Update. I finally spoke with my attorney about this option of not including my commission and was advised that he did not want to open that can of worms yet, he wanted to keep it as an ace in the hole for when we go to court. But, he does not see our payment going down, he wants to prove why it should not increase. This I do not understand when my husband's income is about $600 less per month now than when we filed. How can he say my income increased, due to the commission, by $800 per month when neither the amount nor frequency increased? He's supposed to call me Monday to discuss but does this make any sense? In looking at income is it more involved than what we're doing by just looking at our ytd earnings?

[mylife]

Hi BK Lawyer,

Thank you for the useful information here. Our lawyer said the same thing that the 13 will be more beneficial financially in the end. We have a lot to consider even with giving up our home. We're expecting a baby in March so we need some stability. We're in the midst of a modification so once we find out about that we'll see.

[BnkrptcyLwyr]

A 13 can indeed be more beneficial long term than a 7. If your normal expenses exceed your normal income, then a Chapter 7 doesn't necessarily help because you're in the red each month, and you'll be struggling even with all your other debt discharged. A 13 will allow you to get rid of the second mortgage and modify your car payment. At the end, you're finances should be better. I have had some clients where it turned out to make better sense to do a 13 than a 7 - because of the monthly cash flow, they needed to restructure.

Of course, with the housing market as it is (especially here in Michigan), I advise ALL clients to seriously consider dumping their existing home, and to rent and ride it out and purchase a much cheaper home in the future. The housing deals are too good to pass up around here ... and it will be like this for a long time I think. Live rent free in your current house for about a year around here (or more) and save your money for a potential down payment.

[mylife]

Thanks Des, I'll mention to my husband first. Sounds like a good idea.

I just sent an e-mail to the atty so we'll see!

[despritfreya]

The atty is going along with whatever the trustee is suggesting, why I don't know. . . As for not including the commission and turning over anything in the future, I did not know that was an option.

Your attorney needs to think "outside the box". If this suggestion is something you would like to explore, mention it to him.

The lien strip and cram down may be reasons to stay in the 13 if you can get to a monthly payment you are ok with.

Des.