Help!!!

[colleawson]

Our Chapter 7 will be filed with the courts this week. Due to the lost of my job and my husband just lost his job, we have fallen behind in our mortgage and second mortgage. How does this effect the filing of chapter 7?

[edwards2]

It is my understanding that if you are behind in your bills you have to file a Chapter 13 but I am sure the moderator of this forum can better answer your question. I am so sorry. It has to be difficult with both of you losing your jobs. Obviously, you should seek legal advice. All of us will sure do what we can do to help; we are in some shape or form in the same boat.

[tinroofrusted]

It is my understanding that if you are behind in your bills you have to file a Chapter 13 but I am sure the moderator of this forum can better answer your question. I am so sorry. It has to be difficult with both of you losing your jobs. Obviously, you should seek legal advice. All of us will sure do what we can do to help; we are in some shape or form in the same boat.

Not true at all. Depending on a lot of different variables the court will decide whether Chapter 7 or 13 is best for you.

The best thing that this person can do is get advice from thier lawyer ASAP.

[edwards2]

We were told by our attorney that if we were behind in our bills, i.e., house note, car note we would have to file a Chapter 13. That's kind of scary that it is not a foregone conclusion, and in fact, some people who have posted on this forum said they were told by an attorney their case was a "slam dunk" but the trustee ended up recommending they convert to a 13. Obviously, I do not have unlimited confidence in my attorney. I have learned more from this forum than from him. Based on some of the attorney fees others are paying I guess we are getting what we paid for. He has done other work for us...now I am wondering.

[tinroofrusted]

We were told by our attorney that if we were behind in our bills, i.e., house note, car note we would have to file a Chapter 13. That's kind of scary that it is not a foregone conclusion, and in fact, some people who have posted on this forum said they were told by an attorney their case was a "slam dunk" but the trustee ended up recommending they convert to a 13. Obviously, I do not have unlimited confidence in my attorney. I have learned more from this forum than from him. Based on some of the attorney fees others are paying I guess we are getting what we paid for. He has done other work for us...now I am wondering.

Wow, sounds to me like you got scammed. You can file for a Chapter 7, as long as you have no real assets or anything, and are willing to give things up.

There are so many different requirements for a Chapter 13 or a Chapter 7... it honestly depends on each separate case.

In my case I had no assets, nothing to my name except a lot of debt, and I was able to wipe it all out with a Chapter 7 Bankruptcy!

[HHM]

Tin, I think what edwards is saying is that IF YOU WANT TO KEEP YOUR HOUSE, then you will need to file a chapter 13.

There is one caveat to that, it depends on how behind you are. If you can get caught up while your chapter 7 is pending or work something out with the mortgage company (its called loss mitigation), you still file for a chapter 7.

Given your job loss, you could't file a chapter 13 anyway because you need regular monthly income, which you don't have.

Your in a real bind here, because in order to keep your house through a chapter 7, you need to be current on the payments, if not, its likely the mortgage company will file a motion to lift the automatic stay and begin foreclosure.

About the only advice I have is to beg, borrow, and steal (figuratively of course) to get your mortgage payment caught up. Also, mention this to your attorney before he/she actually files your case.

[edwards2]

I apologize in advance for this question because I know it is trite comparatively speaking but....if the U.S. Trustee decides you should convert to a Chapter 13 does he/she typically write or call your attorney? Also, if heaven forbid that happened to us, what is your best guess about the success rate of an attorney overturning a Trustee's recommendation before the judge? I know this is the worst case scenario but I am trying to hope for the best and be prepared for the worst.

[HHM]

It depends on why the trustee recommends a chapter 13. A trustee only demands a chapter 13 if he thinks you have disposable income, meaning your income exceeds your necessary living expenses. This happens one of two ways, on your petition you either (1) understate you income, or (2) overstate your expenses. Usually the trustee recommends a 13 because the petitioner has over-stated their expeses or are claiming expenses that are not reasonably necessary living expenses. For example, a membership to a counrty club would not be considered a reasonably necessary living expense, therefore the Trustee would object to that expense, and if after removing that expense from your budget, it showes you have a surplus, then you are put in a chapter 13.

Whether you are in a chapter 13 is wholly dependent on your budget (schedules I and J of the bankruptcy petition). In order stay in a chapter 7, you must show that income is less than or equal to your "living" expenses. If you income exceeds your living expenses enough (more than $100.00) then the trustee will object and move for conversion of your chapter 7 to a chapter 13.