341 Hearing part 2 today!

[JRScott]

Here's hoping the judge sides with you

[diviaruba]

Unfortunately, I think you're grasping at straws here. No attorney will take on objections pro bono - your fee schedule likely has an hourly rate for any adversarial proceedings. In spite of any incompetence, you'll not get an admission of same by threatening sanctions under 707(B)(4). This provision of BAPCPA was really directed towards inaccurate, incomplete or frivolous filings.

Unless a debtor's bankruptcy case is plainly not permitted under the jurisdiction's interpretation of the "bad faith" and "totality of the circumstances" tests, an attorney should not be required to anticipate the various arguments parties might put forth in post-petition challenges to the debtor's motivation in seeking bankruptcy relief.

Probably not the answer you want to hear, but you need to be aware of the challenges ahead of you.

[Help!]

Help, Sorry to hear things have gone so poorly for you. I lurk here often as I wait for the "right" time to file Ch7, and have followed your story. May I suggest someone else for some very excellent advice? On CreditBoards.com there is a Bankruptcy Forum (I know many others who post here have posted there as well), and there is a woman named "SaveManatees" who clearly worked at one time within the BK courts, although I don't know in what capacity. She does extensive research on prior case law and has outstanding knowledge of BK procedure. If you decide to continue your current case, perhaps a post over there asking her opinion/advice would be helpful.

Regardless, all the best to you and your family. I sincerely hope it works out for you.

Yes, I'm absolutely open to any suggestions at this point! Thank you for your reply and I'll definitely look into this if we move forward. Good luck w/ your future filing - you will be so much better prepared than we were.

[sivuh5]

Help, Sorry to hear things have gone so poorly for you. I lurk here often as I wait for the "right" time to file Ch7, and have followed your story. May I suggest someone else for some very excellent advice? On CreditBoards.com there is a Bankruptcy Forum (I know many others who post here have posted there as well), and there is a woman named "SaveManatees" who clearly worked at one time within the BK courts, although I don't know in what capacity. She does extensive research on prior case law and has outstanding knowledge of BK procedure. If you decide to continue your current case, perhaps a post over there asking her opinion/advice would be helpful.

Regardless, all the best to you and your family. I sincerely hope it works out for you.

[Help!]

Help...

While I understand why you want to pursue challenging the Presumption of Abuse, make sure you understand what that will involve and how much $$ it will cost!

While our circumstances were a bit different, we too challenged the UST on Presumption of Abuse. Our attorney and the UST agreed on the facts of the case and asked the judge to rule on two points of law. Our attorney was required to research case law and submit a brief. This alone cost almost $4,000. Then we had to wait for the judge to issue a ruling. That took 6 months!

In the end, the judge ruled in our favor on one issue, and against us on another issue. The result was that we spent a total of $10,000, 1 year of our life, only to have the whole thing dismissed (without prejudice).

While our attorney was upfront with us the entire time, we feel like we wasted alot of time and money for nothing! Now we're back to square one - $10,000 poorer, a Chapter 7 filing on our credit report, and NO discharge.

Just make sure you're prepared for the worst case scenario. I know your attorney does not seem very competent, so unless you think you have a slam dunk, you may not be any better off fighting it, just to waste money and be right back where you are now.

[Yankeegirl]

Help...

While I understand why you want to pursue challenging the Presumption of Abuse, make sure you understand what that will involve and how much $$ it will cost!

While our circumstances were a bit different, we too challenged the UST on Presumption of Abuse. Our attorney and the UST agreed on the facts of the case and asked the judge to rule on two points of law. Our attorney was required to research case law and submit a brief. This alone cost almost $4,000. Then we had to wait for the judge to issue a ruling. That took 6 months!

In the end, the judge ruled in our favor on one issue, and against us on another issue. The result was that we spent a total of $10,000, 1 year of our life, only to have the whole thing dismissed (without prejudice).

While our attorney was upfront with us the entire time, we feel like we wasted alot of time and money for nothing! Now we're back to square one - $10,000 poorer, a Chapter 7 filing on our credit report, and NO discharge.

Just make sure you're prepared for the worst case scenario. I know your attorney does not seem very competent, so unless you think you have a slam dunk, you may not be any better off fighting it, just to waste money and be right back where you are now.

[Help!]

Thanks all... I have been doing more reading and it sounds to me that once the statement of presumed abuse is filed and there is a disagreement about the means test, the only way to solve it is to take it all the way to the judge. I would guess that once the motion to dismiss is filed, 99% of filers will allow dismissal out of fear. I think I'm in that 1%, because I know we have not done anything in bad faith or committed any kind of fraud. Besides, I am not a quitter.

The next step is to file an objection to the motion to dismiss and allow the judge to decide whether or not one-time income such as a relocation bonus constitutes "special circumstances". I think it does, and there are plenty of other courts that have agreed and overruled the motion to dismiss. If it is not overruled, there is no reason why it would be dismissed with prejudice as we have not committed perjury or fraud.

After each of these knock-downs (the first 341 hearing, the statement of presumed abuse, the second 341 hearing) I've posted right away, usually in the middle of a mushroom cloud of emotion. The replies from those who are having a "normal" day (whatever that is in BK) calm me down and bring me back to reality. I hope to get through this and eventually be a person with a lot of "normal" days who can return the favor!

[JRScott]

Sorry to hear Help , I hope it is dismissed without prejudice.

However You might consider writing the your state's bar association as this lawyer seems to have very badly represented you. If I'm not mistaken in most jurisdictions 401ks are exempt . (Maybe not yours though).

If its dismissed without prejudice could you possibly file in 6 months to a year to get below median?

[danaf]

I'm sorry about your situation -

I can't believe they would want to include tax returns on the means when the means is the six month lookback and tax returns are an amount totaling a year period.

If your case gets dismissed, when is the soonest you can refile? Is it 6 months?

[rfassett]

OK, Help! You stated that the UST does not give a wahoo about anything other than the numbers. You then state that you do not want to upset the apple cart because the UST might become vindictive. It will not be both ways. Case of point, unless you took "personal" shots at the UST, he/she has no ax to grind. It is strictly business and the law for him/her. I do not agree that non-income money always gets counted as income for the means test. I was able to show that I had used personal credit card advances to fund the operating expenses for my business. When I repaid the credit cards I did it by writing a business check to myself and depositing it in my personal account and then writing a personal check to the credit card company (the old "paper trail" routine). None of that money was treated as income on our means test. The UST tried, but I was able to show in detail, in black and white, what happened - and the UST accepted it, in the end. Such should be the case for your moving reimbursement. The stock options? I don't know any way around that. This is a classic example of "timing is everything". The 401k, well, that was just plain bad advice. So if you wait for those three things to be past the six month window, does that put you in the proper parameters? If so, most of that six months is past by now. If your current case gets dismissed, wait the requisite time to make it work and re-file "pro-se". You know the system now and you should be able to do that.

[AngelinaCat]

P.S. I'm a Mrs.

Funny how posts and emails give you an impression of a person...

How right you are about posts and emails. I am 'Hub's wife, AC, and somehow all along I thought you were a lady. In fact, it seems like I addressed a post to 'Ms Help!'.....

I am likewise distressed to hear all your news. Perhaps it will turn out to be not quite as bad as you fear.

Our best wishes go to you~~~

[Help!]

We won't know what the basis for dismissal is until the UST files the official motion to dismiss (the deadline is Monday). We'll have to see what the grounds are for dismissal and then decide how to proceed. Based on what was said, it sounds like it will be dismissed because of the means test. We exercised stock options, cashed out our 401K and received a relocation reimbursement. All of this was counted against us as income, but there was no way to add in the expenses this money went to (e.g., moving expenses, rent, hotel, gas, etc.). This seems very unfair.

'Hub, I'll think about it. I worry that the almighty UST will dismiss us with prejudice if we object to the dismissal. Then we might not be able to discharge any of this debt in the future.

P.S. I'm a Mrs.

Funny how posts and emails give you an impression of a person...

[AngelinaCatHub]

Mr. ‘Help’: Thank you, however, as much as you have aided me, I wish to return this favor. A suggestion, perhaps, draw a document in form of Court Paper, that you are releasing your Council for “irreconcilable differences and misfeasance in your ‘immediate’ case”. Then also state you are “Pro se” at this time, and wish to ask the Court for a reconsideration of a new hearing. Check the Court as to form. I am doing this and so far, with my AP it is going well. As I said before, what do you have to lose? Attempt to keep this file open rather than re-file. ‘Hub

[laurannm]

1) No. Even without tuition, charitable contributions we are -$1200/mo. on schedule J because of medical expenses.

2) My lawyer included the same work-around. If the means test is anything but black and white, the UST has the power to turn any grey areas into anything they want.

3) Actually, every over-median income Ch. 7 in my district was required to provide 12 months of bank statements. It is the norm here.

4) Tuition came to $1000/mo. but this was not part of the basis for dismissal.

What exactly was their basis for dismissal...were they trying to say that you didn't pass the means test?

[Help!]

Thanks 'Hub. I will definitely be filing complaints with every organization I can as soon as our case is formally dismissed. Can't quite do that just yet because there's always the chance there's some negotiation taking place between the local trustee, the UST and the attorney. We have assets, we're willing to surrender them and we're hoping this is taken into account in any "negotiations" after the hearing. Of course, negotiations would require effort on our attorney's part. Laugh. So much for that idea.

I have my fingers crossed for you and ACat. Hang in there.