Another Motion to Dismiss case

[z45]

My husband (seperated) and I filed chapter 7 last November and all seemed well until the time of our discharge when the trustee filed a motion to dismiss for substantial abuse.
Our divorce was final in Feb and we have 2 seperate homes, rented, and no assets except my ex's 401K, only about $20000. Our debts, all unsecured, total about $55000. My expenses exceed my income, and my ex has about $500 a month disposable income. That $500 is used to pay for my 2 kids college education.
One kid is 19 and goes away to college and the other is 20 and lives with me. Both are full time students. The trustee doesnt seem to think that we should pay for the kids expenses, and that we should not even pay their car insurance, though insurance laws say that we must include anyone living in our homes.
He says that without paying for those things, we have $1000 disposable income. He has our income listed higher than what it is because my ex was getting overtime, and I had holiday bonuses, and now we don't have either.
He also said that we wanted to continue living an above average lifestyle, but we are so broke that I can barely afford gas from one paycheck to the next. There are no unnecessary expenses.
The hearing is wednesday, and we are considering cancelling because we don't want to do a chapter 13. If we cancel, I will refile seperately and then my ex would only be responsible for the debts in his name (about half).
My question is, is there any chance at all that we would be given a chapter 7 discharge? Or will the judge agree with the US trustee? Do the courts find college expenses for your kids to be a valid expense? We're in VA, if it makes a difference.
If we voluntarily dismiss it, will the creditors start calling again before I refile alone?
Could my ex just pull out and would the trustee go ahead and discharge me?
Our lawyer was recommended by my ex's EOP and doesnt seem very experienced at all, so he can't answer my questions.
If I refile, will my $3300 2005 tax refund matter to anyone? it's spent already.
I get no alomony, no child support.
Thanks for any and all answers!

[HHM]

Well, first the bad news, you CAN'T simply cancel a chapter 7. You can make a Motion to Dismiss your Chapter 7, but generally you have to show cause. You might be able to stipulate to the dismissal with the Chapter 7 trustee.

To bad your attorney is not very helpful and unfortunately, you predicament requires legal advice which this site cannot provide, we provide practical advice and share our experiences.

The judge may agree with you, afterall, the expenses are for educational purposes. You may just want to show up to the hearing and plead your case.

[z45]

Thank you for the reply. I guess the only reasons we are considering a motion to dismiss, is the additional cost for the hearing, and the fact that I will have to wait 6 months to refile seperately. Is that correct? There is so much conflicting info about that on the internet, maybe it varies from state to state?
The way I understand it, if I voluntarily dismiss the case, I can refile right away, and if the judge dismisses it - I must wait 180 days.
The debts are credit card debts and some have been sold to collection agencies. If the case is dismissed and I have to wait 6 months to refile, will the creditors start calling again? Should I tell them I am refiling?

[edwards2]

What a nightmare you are going through...I am so sorry. I have a question about the educational expenses for your children. Did your attorney tell you in advance that that might be an issue for the trustee? It seems like he could have forewarned you so that you could have been prepared with some kind of defense or explanation for those expenses. Instead you were apparently blindsided by the trustee's objection. Did you have any indication at all from the BK trustee that it would be an issue? How close were you to your discharge date when you found out about the trustee's objections? Our attorney did tell my husband and I that a private school expense we claimed might be construed as an unnecessary expense. He advised us to answer only what was asked which we did of course but when it came to the explanation about our medical issues and the tuition I told her why we had medical bills and how they affected our son. The look on her face spoke volumes. I think she was a bit shocked. According to our lawyer, she didnt seem to have a problem with our explanation at least we have not heard to the contrary as of yet. We are only 35 days post 341 so I am still sweating it until our target discharge date of 7/1 and probably even beyond.

[z45]

Thank you for your concern. No, he never told us there may be any issues at all. He said the trustee requested some additional documents, but he didn't think there was a problem. He never mentioned the possibility that the chapter 7 might not go through. He told us we sould get a discharge letter and that would be that.
We were at the end of the time period and expecting the letter saying we were discharged. I opened the letter to find a motion to dismiss the case.
I wish I had another attorney because I have asked him over and over to reinstate my car loan (he says to just keep making payments), and asked him over and over to see the huge stack of lettors that he got back from the creditors, with no results. I can't afford to start over with a new lawyer. I think the worst thing about him is that he forgets who we are from one meeting to the next. Not just our names, but everying about our case. It took him 2 monts to file the initial papers. When we first went to see him nine months ago, I figured this would be all behind me by spring.
Well, it was nice getting that off my chest.

[tinroofrusted]

I would encourage your children to help with their college education. There is no reason that they shouldn't be at least helping to supplement if you are in this predicament.

I could go on about this topic, but I would probably step on some toes, so that's all I will say!

[z45]

Thank you for the input. However my question is not how to pay for college. My questions concern what will happen if we let the court dismiss the case, and how soon I can refile, and whether I have a chance of winning tomorrow.
I would still like to know about the time frame for refiling if the court dismisses my case, so if anyone knows the answer, I would love to hear from you. I am also really wondering if the creditors will start calling again after the dismissal.

[HHM]

How long you have to refile depends on why exactly your case is dismissed, you may be able to refile right away, or you may have to wait 6 months. If you stipulate to the dismissal with the trustee, they ususually have you sign something saying you won't re-file for 6 months.

[z45]

Forgive Us Our Debts as We Forgive Our Debtors

I would like to thank God for being my bosom buddy the last few weeks and I am sorry no one else could get a prayer in edgewise. Thank you to HHM for suggesting that I go ahead and show up at court and plead my case when I was ready to pull out with a major case of cold feet. Thanks to my mom for showing me how to behave in public. Thanks to my brilliant lawyer, and I take back all of the bad things I said about you in my previous post. And most of all - thanks to the extremely handsom and nice judge who ruled in my favor and granted our chapter 7 discharge.
After a 1 and 1/2 hour hearing followed by a one hour recess (only the judge had recess), it was just like in a movie. First he raised my hopes by saying that he had observed the demeanor of the debtors, then he smashed them to the ground saying that he believed we had the ability to repay some of our debt in a chapter 13, then he raised them again saying that he needed to prove 3 things to dismiss a case due to substantial abuse. One, that we had disposable income, 2 that we had attempted to fraud the court by underestimating our income or overestimating our expenses, and I think the third was whether we had spent money lavishly in anticipation of filing chapter 7. He could only prove the first one, and so he granted our discharge!
The trustee pretty much told our attorney that he would not appeal.
My attorney had referenced a high profile case similar to ours and the judge had his secretary come to my lawyer to get that case number, I assume so he could research it while making his decision.
Thanks to all of you for the support and replies. Even tinroofrusted - lets have lunch, your kids can pay.