Including house in means test but giving it up

[elster]

Has anyone qualified for the means test by using the mortgage payments in the means test, but given up the house? In my case the Trustee is arguing I am giving up the house and have extra income, but I've read many cases where folks can include the mortgage payment in the means test if the mortgage was due on the date of the BK filing.

Anyone have any comments on this? I am trying to stay Ch7 but need to factor in my mortgage payment to pass the means test. I've already moved out, but the foreclosure process is very slow and I am still liable for the house (taxes, insurance, mortgage, HOA dues, etc.)

Elster

[Yankeegirl]

It all depends upon the district you live in. In my district (Southern Texas) you cannot. In other districts you can. If you filed with an attorney, he/she should be able to tell you.

There are many cases throughout the country that have come down on both sides of this issue. If there is no definite opinion issued in your district, then you will have to fight to try and get one. Most trustees (and USTs) seem to argue that you can't include the payment if you are surrendering. They won't change their mind unless a Judge issues an opinion otherwise. This will cost you time and money.

In our case, there was no "official opinion" in our district. We choose to take it to the judge and get an opinion. It took an extra 6 months and almost $7,000 in legal fees to get our opinion. However, in our case, the judge ruled that we can't!!

[screwedupbyRE]

there's a trick to handle it... per my attorney:

include your mortgage payment in the plan and tell ust that you plan to keep the house. after 341, file an amendment (just before final judgment) that you are unwilling to keep the house... (do not re-aff)

the only catch is you have to be current on your payments.

[cool33097]

We did the same thing and the Trustee did not allowed so we include rent's payment and he allowed. We are in FL.