secured debt on means test

[jec]

We are waiting to go before the judge to decide if we can list our secured debt on the means test (that we are surrendering) Does anyone know how long this takes or if there is a time line they have to stick to ?????


it sure is hard just waiting to find out what is going to happen

[Yankeegirl]

Where are you in the process? Has the UST filed a motion to dismiss?

We are in the same place - our case is before the judge waiting for a decision. However, it took a long time to get there (7 months). We went back and forth with the UST before it got to the judge. The UST filed a motion to dismiss for abuse. We filed a rebuttal.

My attorney and the UST agree on the facts and circumstances of the case - they disagree on two points of law. A pre-trial hearing was held in early Sept with the Judge. The judge agreed to rule on the points of law only. He required formal briefs from both the UST and my attorney. The judge took everything under advisement on 9/20/07. We originally filed Chapter 7 on 3/01/07. So we're now over 7 months with no official resolution!

BTW - the judge is ruling on whether or not we can use secrured debt (that we surrendered) on the means test and whether or not we can deduct costs for a second car that has no lien.

My attorney feels that if the judge rules in our favor on the issue of being able to deduct the secured debt that he'll drop the motion the dismiss. But there are no guarantees!

[jec]

unable to determine abuse

Instead of going one way or the other our trustee said unable to determine abuse. and now we are just waiting

Dont have any clue what is going to happen

[Yankeegirl]

Ours said unable to determine abuse first. We had a 2004 exam where we had to go over all of records again. Then he filed the motion to dismiss for abuse.

[jec]

in my research i have found that the majority of the courts allow you to deduct secured payments even if you are surrendering. But on the other hand the consensus is that if you have no lien you cannot take the ownership cost. You get the transportation allowance but you cannot take a deduction for a secured payment that does not exist

But as we know they can go either way

what is a 2004 exam

[Yankeegirl]

According to the case law our attorney presented in her brief, the courts are split on the issue of deducting ownership costs without a lien. The majority of recent cases (about 12)have actually favored allowing it. It's not a deduction for a secured payment, it's a deduction for ownership costs.

A 2004 exam was a formal "deposition" type meeting with the UST where they asked more detailed questions about our records.

[jec]

i hope all goes well for you. It seems quite unfair that we have all these timelines to meet but when something like this happens we are stuck in limbo

[Yankeegirl]

When did your UST file the "unable to determine abuse" motion?

I thought there was a time period, 30 days maybe, that they had to actually decide whether or not to file the motion to dismiss.

[jec]

they filed unable to determine abuse within the 10 day window

(the us trustee said she had 10 days at the 341 meeting)

I dont know of any other timeframe we are just waiting waiting waiting

I dont think we have to do another reveiw of records because they already made us jump thru hoops on that.

I think that they were going to try to rebut our tithing but we provided them all the proof plus an extra year so they could not say we made it up (we have been doing that since 2000)

[Yankeegirl]

I went back and checked our case and my emails from our attorney; the UST has 30 days from the filing of the "unable to determine abuse" motion to file an actual motion to dismiss for abuse.

What date did your UST file the "unable to determine abuse" motion?

Have you checked PACER?

[Yankeegirl]

In our case, the UST filed their "unable to determine abuse" motion on 5/4/07. UST requested a 2004 exam, to gather more information, on 5/16/07. Then filed the motion to dismiss for abuse on 6/4/07.

From what I remember our attorney telling us, for the most part, there are deadlines for these sorts of things. It's only the judge who gets to take his time deciding things!

[jec]

UST Filed unable to determine on 9/18/07. If your info is correct that means that they have just 8 more days to file a motion. You make a stand or sit down and shut up. I think the original motion was just to buy some time.


Thanks for the info and i will give you a heads up. My attorny told me a while back that it was no longer matter of fact but a legal issue in this district on which way to go.

Did your attorney happen to tell you if there where any cases in which a the courts ruled against allowing secured debt that they intend to surrender?? I have not been able to find anay

[UpACreek]

Yes. I WAS able to include payment on secured debt in calculation for my means test. It was a second home which I included in my BK. My attorny said that because those payments were a part of what got me to this point, they are a part of the calculation, so "the presumption of abuse does not arise".

UAC