Means test question

[nc73]

If I'm going to surrender property (two houses, 1 with 38k equity, the other none, and 1 car) I will not be able to put those mortgage and car payments in the expenses on the means test, correct? If that is the case I am SOL for chapter 7. 13 won't help because I will be moving out of the country next year and I won't have a job that pays nearly enough for the expected payments. IF I wait 6 months I will at that time have another child, so there will be 4 of us and that would put me below the median income level, unless I get a large enough raise. In any case I want to owe nothing before I move, besides the student loans of course.

[vernors]

As far as I know, if you have the secured debt at the time of filing, it counts in the means test. But, I would also like to hear a definite answer on your question.

[nc73]

Yeah I'm hoping that's the case since it would allow me to file immediately. Will be talking to a BK lawyer tomorrow morning so will let you guys know.

Starting a new life in Scotland should be fun...I'm planning to come back to the US in 5-7 years. It allows my wife to complete her nursing degree in 1.5 years or less over there. I could always find work in IT.

[lrprn]

Unfortunately there is variation between bankruptcy districts whether a secured asset you will be surrendering in your bankruptcy can be included in your Means Test. The latest bk court case decisions have allowed cars and home costs to be included even if they are to be surrendered because the costs exist on the day of filing. Ask your lawyer how your district and local court are leaning on this issue.

[nc73]

Got an answer. Apparently I can include ALL my mortgages and car loans in the means test. Only one other instance where it was not allowed. Will be doing the test with the lawyer next Tuesday and if it comes out ok I will be doing a 7 in 90 days. Wish me luck!

[jec]

nc73

Since i am in the same situation and it has not been decided in this district, I was curious if they told you what was the reason it was not allowed (secured debt on the means test) was this ruled on by a judge. Thanks

[SinkingFast]

Here's one Case Decision allowing deductions for secured assets even tho the property is being surrendered.

http://www.bkforum.com/showthread.php?t=8093http://www.georgiabankruptcyblog.com...rrendered.html

The "Totality of Circumstances" arguement left the UST an out around allowing the payments.

BK attnys in your area will know if your Court allows contractually liable debt payments to be included even if you're surrendering the property in BK.

[jec]

yeah it leaves them an out but they want it both ways

they want totality but then they want to argue you are not allowed to deduct this or that or your food and clothing allowance is excessive when the whole intent was to take that decision out of their hands.

they want there cake and eat it to

[nc73]

It's just all complete BS in my opinion. No where in the Schedule J does it says you can't include secured property that you are surrendering. I guess there will always be exceptions. Damn I haven't even started the gather of info for the means test yet with the lawyer. So much to do..