Announcement

Collapse
No announcement yet.

Hard case - having a hard time finding an attorney to take it

Collapse

Unconfigured Ad Widget

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

    Hard case - having a hard time finding an attorney to take it

    This is going to be long and complicated. I'm running out of attorneys to contact who are willing to take this.

    100% disabled veteran (temporary award due to cancer diagnosis) but high wage earner. Most of my debt was incurred on active duty. I'm in an area where few attorneys deal with this. I'm trying to file a 7 under 11 USC 707 2 D (i) I am being told that due to being a high wage earner, they will file a presumption of abuse anyhow and move to dismiss or convert, and that my Ch 13 expenses aren't going to be ok to use, even with receipts. However, the statute states "...the court may not dismiss or convert based on any form of means testing." "Any form" for me includes schedule J, and while reading In Re Smale (DE court) I feel I could argue noscitur a sociis (https://www.deb.uscourts.gov/sites/d...7-11396opi.pdf ) with regards to "any form of means test" including Schedule J.

    Has anyone dealt with this issue? The case is being filed in good faith - I have large attorney expenses, medical bills etc. The "frivolous" things they may see is boarding my young daughter's pony - but I am able to get medical documentation from her therapist stating he has helped and continues to help in her anger management therapy; and the fact I had to liquidate a $20K 401(k) in 2016 to pay living expenses and legal fees. Now, I want to "catch up" on 401(k) input due to the fact I will likely not get a military retirement. I have not been in long enough on active duty to receive a medical retirement. My truck is not new, and has 145k miles and needs about $4k of work done. I'm doing it myself to save money. My house is average for where we live, and my day to day expenses are all within the norm.

    I'm about to do this pro se if I cannot find representation. My debt was incurred due to a massive child custody modification case, along with medical bills, and said case is still open. I have not paid attorneys fees lately, but to date have paid in the neighborhood of $43,000 since mid 2015. Those fees might be $100 one month, then $10K the next as my attorney prepares and goes to trial. This is likely something that will stay open at least as long as I am still in the military. There is case law stating that I can use future expenses on my schedule J (and some cases where it can be used on the means test) so I am averaging the fees since 2015 and adding that in to my Schedule J.

    Medical expenses in the past year were $795/month (receipts available.)

    My second income could stop at any time (right now facing a security clearance renewal that - if I don't file - is going to flag me as a security risk due to financial concerns,) and my contract is up in 2022 (reservist.) I am asking that the average income be calculated as annual pay until 2022, and then divided by 60 to account for my contract ending and the potential I do not continue due to medical issues.

    Insurance is going to skyrocket if my military career stops because I am currently purchasing insurance at a big discount through the military. I'm asking that this be used, as a similar plan is going to be about $500/month (or more) through my civilian job.

    My disability percentage will go down once the VA schedules a re-examination. When that will happen - ?? Read the news on the "future calendar" they use and how often they use it correctly. It could go to $0 (unlikely, but a possibility based on my experience to date) AND I could not have a second source of income.

    Any ideas from the board would be welcome. I realize this is an unusual case. I need to file, and file soon. If I have to go it alone with a firm looking over my forms for me, I will, but that's a last resort.

    #2
    See:

    In re Green, 431 B.R. 187 (Bankr. S.D. Ohio, 2010)

    https://www.courtlistener.com/opinio...2/in-re-green/

    In re Rowell, 526 B.R. 300 (Bankr. E.D. WI 2015)

    https://www.leagle.com/decision/inbco20150109430

    Des.



    Comment


      #3
      So what you're showing, despritfreya, is that the Means Test may not be required, but the Trustee can still file a motion under the "totality of circumstances" under 707(a)(3)(B)?

      Does this mean that the totality of circumstances objection is the trump card, and everyone is subject to the exceptions in 707(a)(3) (bad faith and totality of circumstances)?
      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


        #4
        Right - totality is going to likely come into play, unless the "special circumstances" I list offset any grievance the UST is going to have. Cancer and associated costs; massive child custody modification attorneys fees, circumstances surrounding the increase of insurance costs due to a loss of a clearance etc. I'm hoping to mitigate as much concern as possible. I have a feeling I MAY be forced into a 13, but based on what I'm seeing in cases in this district, I may not be paying much. If the Ch 7 is filed in "bad faith" I'd have a harder time. However, I was reading a case earlier where the earner was grossing over $500K, just bought a home for $955K, went on vacations and overcame the presumption of abuse. It was like reading the Little Engine That Could.

        I guess it's going to depend. I've been on PACER, and have found an attorney who deals with difficult cases and has been fairly successful. I'm going to give them a buzz Monday and see what can be done. Will update after I get a consult.

        Comment


          #5
          707(b) deals with consumer cases. A "consumer" being exempt from taking the means test only means the presumption does not come into play. A case can be thrown out if an abuse is proven. In non consumer cases we look at 707(a) - for cause. The items listed under 707(a) are not exhaustive and the totality of the circumstances and other factors can be "cause".

          For OP, he may have to litigate the issue. The attorney would first try to persuade the UST that the ability to pay (Schedule I and J), under the totality of the circumstances, is not "cause" to find an abuse. OP would put his cards all on the table and let the UST make its decision. Did this in one case. It took the UST 6 months, going back-and-forth with documents, medical records ect., to decide to let the case go through and no AP was filed. The client was not very patient and a complainer but, after all was said and done, was very pleased with the outcome. We did this on a fixed fee but if the issue were to come up again, we would require an hourly retainer post filing.

          Des.

          Comment


            #6
            Thanks for the data point, Des.

            My hope is that we go in to this with heavy documentation. I'm not opposed to a 13 if we can convince the UST to allow legal fees in my expense calculations.

            If I didn't have the security clearance issue, I'd likely wait. However, my fault, I waited until the last minute and now am going to have to pay the price.

            Comment


              #7
              Found an attorney. He didn't seem phased by my concerns. But then again, I have a ton of stuff paperwork wise to get to him. He's been practicing in this area since I was born, so knows the trustees well. Gave me a military discount to boot!

              Going to try and have all paperwork to them by Monday. More to come.

              Comment


                #8
                Originally posted by Garciaa06 View Post
                Found an attorney. He didn't seem phased by my concerns. . . Gave me a military discount to boot! Going to try and have all paperwork to them by Monday. More to come.
                Glad to read this. And, I did not say this before - my bad - Thank you for your service.

                Des.

                Comment


                  #9
                  Garciaa06 Please keep us up to date on your case. I myself am in the boat and wanting to be excluded from the means test. But very few attorneys are familar with it. Let me know if they (the Trustee) require any documentation as proof. Huge thanks!

                  Comment


                    #10
                    No updates yet. Retained attorney, waiting on them to go through all my paperwork to tell me what I still need and what I don't. Also have a change in that I expect a decrease in pay within the next year. Not enough to get me under the median, but a significant pay cut. Waiting on the conditional job offer paperwork, but may not get it prior to filing.

                    Comment


                      #11
                      Looks like I'm going to be forced into a 13 mainly due to time. I don't have time before a security clearance reinvestigation to go with the 7. It would require pulling years of statements. Attorney has drug feet for a month and I'm trying to self report before my clearance is due (2.5 months!)

                      justbroke - with your BK did you self report for your clearances? Who other than your security manager had to know?

                      Comment

                      Unconfigured Ad Widget

                      Collapse
                      Working...
                      X