Do the majority of Ch 7 filers get pushed into Ch 13? Trustees make it up as they go?

[TheDouble]

From what I have read on these forums it sounds to me like the trustee just pretty much does whatever he wants with a BK case. He can ignore the median income stipulation, force Chap 7 filers into Chap 13 and then force that into the longest possible plan of 60 months. How is this in keeping with the intended purpose of the bankruptcy laws?

Has anyone here litigated their case - say when the trustee decides he's having a bad day and needs to fill his coffers with your money, so he decides to curtail your rights and bend the already ambiguous/vague BK laws in his favor?

Both the trustee and the attorney will make more money by forcing the filer into a 13 - what is the motivation for the attorney to fight for the filer?

[lrprn]

From what I have read on these forums it sounds to me like the trustee just pretty much does whatever he wants with a BK case.

Not true. The bk law is open to judicial interpretation just like every other law in the US - that's why it can seem so 'loosey-goosey'. But there are some areas of the law that are not as open to interpretation - the new bk law BAPCPA that went into effect in Oct 2005 made some feeble attempts to create more certainty when they forced the use of the Means Test...unfortunately they opened up a big can of worms which the bk courts are just starting to deal with now.

He can ignore the median income stipulation, force Chap 7 filers into Chap 13 and then force that into the longest possible plan of 60 months. How is this in keeping with the intended purpose of the bankruptcy laws?

The trustee can only push a Ch 7 filer into a 13 if they show at least $100/month disposable income on the Means Test. Also there are still 36 month Ch 13s - typically those filers who are very close to the median or between $100 and $166/month disposable income.

Has anyone here litigated their case - say when the trustee decides he's having a bad day and needs to fill his coffers with your money, so he decides to curtail your rights and bend the already ambiguous/vague BK laws in his favor?

Do a search for Minnymouth's posts on her experience with her Ch 7 trustee - very shady stuff around her foreclosure. She does plan to sue once her case is finally closed - it's been more than two years while her trustee drags his feet.

Both the trustee and the attorney will make more money by forcing the filer into a 13 - what is the motivation for the attorney to fight for the filer?

The fact that it's a violation the law if the filer really doesn't qualify for a Ch 13 according to BAPCPA. I'm not saying there aren't shady trustees and shady lawyers - there are - but thankfully it's rare.

[SinkingFast]

There is no wrangling the Means Test. The numbers there are hard and fast. Your real life Secureds and Priority payments mixed with the Schedules Allowables.

On Schedule J, there are certain areas where you won't use your real life expenses, if that's what you're referring to. That's a common theme from everyone who's posted here.

For areas like rent/mortgage, utilities, insurances, and such,........ Expenses where you have hard and fast bills and numbers for,........... Attnys use the real figures.

For "gray" areas,............ Food, clothes, Entertainment, and such,......... A lot of those Expenses are area and Court dependent.

You may spend $1500/mo on food for your family of 6 but the Court is used to seeing $800-$850/mo for a family your size. Your attny is gonna enter $800-$850 on Schedule J.

Many areas of the Country, $100/mo is acceptable for Entertainment. Even if you don't spend a penny/mo on Entertainment, your attny is gonna enter $100 in that slot.

You may not have bought a new scrap of clothes for yourself and your spouse for several years. Maybe only the bare necessities for your kids. So your actual Clothing Expenses are $50/mo. But in your area, the Court is used to seeing $150/mo. Your attny will enter $150 on Schedule J.

Is it right??!! No. But it's the way the game is played. BK attnys know it. Trustees know it. The Judge knows it. Informed BK Filers know it.

[Walnut]

I once thought this too, but after my 341 I realized it is not the case. Our atty was very creative in adding into the means test the secured interests in our refrigerator, furniture, and HDTV by saying our intention was to keep them. Those payments helped us get under $100. Granted, he could have easily pushed us to a 13. We were over the median by $6-7000.