After presumption of abuse issued can it be withdrawn by trustee?

[kimba251]

Trustee entered presumption of abuse in my Chapter 7 case. CAn she withdraw it if she is given new info that would support my Chapter 7 without having to have a court hearing?

THe U>S. Trustee was unaware we stopped contributing to our ING which to her looked like 800 dollars we had in surplus. Since we decided to keep th house we use that 800 to pay our bills. Once she has this new info can she withdraw the presumption or is it going to take a long court process?

Thanks.

[JRScott]

There is another hearing involved in the presumption of abuse, but yes after the hearing and a review of all information the trustee can withdraw the presumption. Several folks here have had that happen before

[kimba251]

Another hearing? Like another creditors meeting? What does this other meeting entail and who is it before, a judge?

[Help!]

Within 30 days from the filing of the statement of presumed abuse, the UST must file (a) motion to dismiss/convert (b) statement of no presumed abuse or (c) declination. If you're in this predicament and have an attorney, the attorney needs to communicate with the UST ASAP on your behalf. How much time do you have?

[kimba251]

Great! I called today and they told me there are NO deadlines. I thought it was 30 days but the secretary said no. The UST is on vacation until next week. She filed the presumption on the 10th day (6/27) and the Pacer lists Statement of Abuse on 6/30.

What happens if nothing is filed by UST by 7/30? She is suppossed to be back on Tuesday the 29th or Wednesday the 30th.

My laywer is trying to keep us in a 7 but he said she wanted a 13 because of the ING (800 a month) she thought we were still contributing too. (we aren't we use it for bills)
He called her to talk again but she's away until next week. I check daily but nothing has ben filed.

If I wasn't nervous before (I was lol) I am now. So something needs to/is going to be decideid within the next few days?

Is the 30 days from the 27th or th 30th??

[Help!]

Called who... your attorney? The UST is required by law (and it's right there in Title 11) to file that statement within 30 days of the presumption of abuse statement. So, the UST must make their decision to dismiss/convert or allow your case to proceed by about next Wednesday. In our case, it took about two additional days for the declination statement to appear (but it was filed on the 30th day). If the attorney for the UST files a motion to dismiss/convert, it is very unlikely that they will strike that motion once it's filed. The key is to find out what the UST plans to do ahead of the 30 day mark.

By the way, the 30 day deadline is not something that appears on PACER or in the schedule. A secretary who looks up your case in PACER is going to be clueless about it, but I can guarantee that the attorney for the UST is well aware of that deadline. If the UST attorney handling your case is not available then your attorney needs to find out where your case stands. No one leaves on vacation without having someone cover for them.

I did some digging on PACER and looked at cases with presumed abuse statements. I did not see any where the UST didn't file something 30 days later. Now is the time to really be proactive!

[kimba251]

Here is what Pacer says

Clerk's Notice of U.S. Trustee Statement that the Presumption of Abuse has Arisen Under 11 U.S.C. 707(b)(2) (ADI) (Entered: 06/30/2008)

06/27/2008 The United States Trustee has reviewed the materials filed by the debtor and has determined that the debtor's case is presumed to be an abuse under Section 707(b)..

Which date is the 30 days going by? When it was first entered on the 27th or the 30th?

[Help!]

Technically it would be the date of the statement, 6/27. Some of the 30 day statements I saw were dated 2-3 days after the actual deadline.

[kimba251]

THanks "Help" I will call in the morning and see what is going on. I always feel like a pain because I call so much, especially when I see things in Pacer. I can't wait for the whole process to be done.

You go into a bankruptcy already emotionally drained from creditors and whatever brought you here- then whole bankruptcy process just drains you and takes it to a whole other level.

[HHM]

Short answer, yes. The trustee can withdraw the persumption.

[Help!]

Short answer, yes. The trustee can withdraw the persumption.

As you can see, HHM is much better with short answers than I am.

[kimba251]

OK thanks They open at 9 so I'll call then and let you know what my lawyer says.

[kimba251]

Still waiting. No response from lawyer and nothing on Pacer yet. I guess if it's the 30th and not the 27th then the trustee will be back in time and my lawyer has no new info for me.

In a few days I will know which way it goes. My lawyer thought she wanted me in a Chapter 13 but he's still pushing for the 7. This really is so stressful. I;m the kind of person who has to know what's going on, I'll deal with whatever but i can't stand not knowing

[Help!]

Hang in there... I'm the same way and during those periods of uncertainty I hardly slept, barely ate and was a basket case. Maybe your attorney has been communicating with the UST attorney behind the scenes - think positive and try not to worry. The very worst possible outcome is a Ch. 13 (or you can try to refile), and that's not the end of the world either. My fingers are crossed for you!

[kimba251]

THanks "Help" I sent you a pm.