I am in complete shock......

[justbroke]

...I don't think the UST knows what the heck he is doing regarding SLs. I mean, he said to me "well you do not have the two reasons Congress gives to allow the SLs: miliary leave or disability. Well, if you read the code it says "such as" not "limited to" in regards to SLs being allowed as an expense. Those are EXAMPLES not specific and limiting!

Now you're talking like a defense attorney! I dont' think he knows what he's talking about either... remember he said you could do a Chapter 13! I have also read that section of the code, and there are many cases you can cite where the Court stated that the reasons listed in 707(b) as "special circumstances" are just examples, and in no way are specific conditions or some sort of bar.

And also, it says that the debtor does not have "any other alternative than to pay"....welll I don't, none of us with SLs do! I told him that and he said "that is a very good point - we just don't have that going on in this area". Not like I want to be the first - but I guess my point is that it cannot HURT me at this point. Right?

Nope, it can't hurt you to find them. You can always convert in the end, even if they were to have this dismissal granted.

I thinking that if you really want to do this -- fight -- then go ahead. You have some caselaw already and there's a ton more in which you can attack each of the Trustee's specific complaints/facts.

[TeacherMomma]

What other case law? How do you find this stuff justbroke? And are they just betting that people won't fight? Why the heck are they not more knowledgeable about case law? I guess cause they really work for the creditor huh?

[justbroke]

What other case law?

Don't know, but thought I read some on the "special circumstances" not merely being military service or medical. I think the case I posted earlier basically made that argument in its rebuttal.

How do you find this stuff justbroke? And are they just betting that people won't fight? Why the heck are they not more knowledgeable about case law? I guess cause they really work for the creditor huh?

Too much work to find just using internet. Findlaw has a bunch of cases, but WestLaw is probably good along with Bankruptcy Review. Unfortunately the 2 latter resources cost $$$. You can always go to your local Law Library which are usually run by the local court system and provide access to WestLaw or Lexis. You could spend the day in the Law Library to look up cases.

In the legal system, I've found, it's almost always about who will give up first before going to "trial". The cost is why most people don't fight the Trustee. The UST isn't knowledgeable about caselaw outside his District, because it doesn't really matter to him. The UST knows the local court and judge and feels good.

[TeacherMomma]

I have access to Westlaw and Lexis through my job......

[bkmaggster]

I have access to Westlaw and Lexis through my job......

DUN DUN DUNNNNNNNNNNN!

Go get 'em!

[walkthaplank]

Clearly you have done your homework and you probably have an overall working knowledge of BK as it applies to your situation on par (perhaps even better) with the UST you've been dealing with. He may have knowledge specific to your court, but that can be as big of a handicap as it is an advantage. He has an expectation of how the judge will rule and will play towards that expectation, but if you give the judge an "out" that has been used in other courts, he/she MAY just take it especially if they have an underlying sympathy. If you go in with all of your ducks in a row, able to cite relevant case law and explain the totality of your circumstances (can work both ways you know) then you may just get your CH7. At worst, you'll still have to convert to a CH11, but you're already there right?

Good luck, we're all pulling for you!

[dingdong]

What district are you in TM?
Sadly, I love this kind of stuff (research), I can do a little searchin' for ya if you like?

Oops,edited cause I saw your location.

[dingdong]

courtordered
payments, dependent care, education, health care, involuntary deductions, life insurance,
secured or legally perfected debts, and unsecured debts, taxes, telephone services, internet/Email,
and repayment of loans made for payment of federal taxes

What if you defaulted on your SL, they were reduced to garnishment, which would make them an invountary deduction, and then allowed as an expense on the means test?

You would probably have to wait 270 days until they went into default, but it might be a weird workaround to get the payments into the plan and qualify for a 13?
I could be way, way off, just kinda throwing it out there if all else fails, and I really don't know much about CH 13, and this post may actually prove that, but it just kind of occured to me after reading a case.

Here is the case I read, in case you are wondering.

http://74.125.155.132/search?q=cache:vHHr-Jw9Xq4J:www.wieb.uscourts.gov/index.php%3Foption%3Dcom_docman%26task%3Ddoc_download%26gid%3D804+Delbecq+decision+student+loans&cd=4&hl=en&ct=clnk&gl=us

[TeacherMomma]

I have a co signer on the SLs that are really old....so letting them get that bad is not an option for me, at least for those loans (currently the only ones I am paying, the others are at like 70 days behind).

[music12]

i didn't know someone could cosign for student loans. and i thought they were non-dischargeable because it is assumed that the person who took them out will be able to use their education to make money to pay them off. that doesn't really apply to a co-signer. it's very confusing to me.

[TeacherMomma]

No, for private ed loans you sure can have a co-signer, or two as I have seen. And I am really not sure what the thinking is behind the lending practices.....I am guilty for my borrowing, but there was not rhyme or reason to the lending, it just kept coming and coming. The only time a co-signer came into play was when I was like 20 and in my undergrad with no job, and that was a long time ago.

[shabam]

The UST is responsible for making sure debtors are entitled to a discharge. It's their duty to find issues and to stop you from getting a Chapter 7 discharge, when you don't fit the formula or an abuse is apparent.

Can you believe that we the people are paying for this? Looking for fraud is one thing but giving us the Spanish Inquisition, while assuming (by default) that the creditors played by the rules, were ethical and did absolutely nothing to entice people to accumulate debt is ridiculous.

That is why our entire financial system is almost bankrupt. When they make billion dollar mistakes, they get TARPs. When we make a mistake, we face USTs, trustees, AP, motions to dismiss and so on. Even prison time.

[justbroke]

Can you believe that we the people are paying for this? Looking for fraud is one thing but giving us the Spanish Inquisition, while assuming (by default) that the creditors played by the rules, were ethical and did absolutely nothing to entice people to accumulate debt is ridiculous.

While I wholeheartedly agree with you on the emotional side, the legal side is that the U.S. Trustee technically represents the Bankruptcy Program, and acts as Trustee for distribution to the creditors. The filing of a Bankruptcy does allow the debtor to question and even open a complaint on the creditor, if you think they played unfairly. However, what does opening an AP (complaint) against a creditor do, if you're discharging all that debt anyhow?

That is why our entire financial system is almost bankrupt. When they make billion dollar mistakes, they get TARPs. When we make a mistake, we face USTs, trustees, AP, motions to dismiss and so on. Even prison time.

I see them as too different issues (however related). Now, many of them (corporations, think GM, USAirways, United Airlines, Target, Chrysler, Nortel, Eddie Bauer, Circuit City, Six Flags, and so on) are facing USTs, trustees, AP, claims out the ying-yang, motions to dismiss, motions to convert, and so on. Some execs in banking are even getting prison time. I don't believe the system pits one over the other, but the appearnce is always that "big corporations" are evil.

It's a vicious circle, but we -- the people -- are complicit. Yes, we are. We work for the large corporations and we feed our 401(k)s. These 401(k)s invest in... yep... the market. These 401(k) Plans are really really large institutional funds and they move the market. I know that my 401(k) was heavily invested in.... yep... the real estate secondary market. I made lots of money. Many of the same debtors on this site, took advantage as well. Not just from the spending what we haven't earned yet mentality (I'm guilty as charged), but also from the aspect of being dazzled by all the equity. The problem was always equity and value.

You personally may not be in either of those investment camps (equity and 401(k) investments in the stock market), but a great majority of We The People have been and/or still are.

The cure for all of it is what I'd call absurd. That would be, foreclose on the 4+ million homes out there in default -- kicking all the families out. Let the banks fail... taking with them the People's money, earnings, and 401(k)s. (Noting that FDIC only insures the first $250K), and that many investment accounts (401(k)s, IRA, Keough, etc.) have no insurance!

We would immediately become, uncivilized.

(Well, I need to stop talking. )

[shabam]

While I wholeheartedly agree with you on the emotional side, the legal side is that the U.S. Trustee technically represents the Bankruptcy Program, and acts as Trustee for distribution to the creditors. The filing of a Bankruptcy does allow the debtor to question and even open a complaint on the creditor, if you think they played unfairly. However, what does opening an AP (complaint) against a creditor do, if you're discharging all that debt anyhow?

I understand the legality of the Trustee / UST but their representation is the issue I have. Why should any private company receive government representation while 'we the people' have nothing? Nothing as in zero. President Jackson's prediction was right on the money. We escaped a monarchy only to be enslaved by financial corporations.

Rather than working for the creditor, they should be a mediator in the process. They should be objective. Why should anyone have to explain their debt while the creditor does not have to explain why the issued it? Or whether they used due diligence to see if the person could actually afford it. UST do not investigate that, they simply look at shaking down those that are on their radar. Maybe they can squeeze a dime or a dismissal out of them.

Here is an example. A creditor could loan you $1 million. On top of that, they actively encourage you used it; which you do for a while. Unfortunately due to unforeseen circumstances, you are unable to pay. Under the present system, you are guilty until proven innocent. Liable to the point that if they can get an AP and win, you're stuck with the debt forever.

What sort of a system allows that? The rest of the developed world surely does not. I lived in the UK and saw a friend file. Completely different process to that if ours. The creditor offered the money, the creditor bears the risk.

[justbroke]

I understand what the legality of the Trustee / UST but their representation is the issue I have. Why should any private company receive government representation while 'we the people' have nothing? Nothing as in zero. President Jackson's prediction was right on the money. We escaped a monarchy only to be enslaved by financial corporations.

I think the system was good and subjective until the BAPCPA amendments to the Code in 2005. There were people actually abusing the system. The system use to care about the individual case, but Congress took that all away. I don't think its representation, but the Trustee is overseeing the system which basically tells the Creditor... you get nothing.

What sort of a system allows that? The rest of the developed world surely does not. I lived in the UK and saw a friend file. Completely different process to that if ours. The creditor offered the money, the creditor bears the risk.

I think the creditor still bears the risk. Look at a Chapter7 bankruptcy (or the superdischarge in Chapter 13). The creditor usually loses.

In these cases, the Trustee (UST) isn't the attacking the debtor on any sort of fraud. The UST is looking at whether you can afford to pay something in a Chapter 13. His job is to look at whether you are needy and that you haven't lied on your petition (in order to hide or shield assets). The UST is also looking for things you may have, unknowingly, transferred improperly. I don't think there is anything wrong with that at all! (The reason for all these rules are that people have actually done all this stuff to circumvent the system, to hide assets from creditors, and to make out like a bandit.)

Just look to people like Bernard Madoff. Would we rather than people like that be able to hide assets and not be subject to the UST looking at transfers and other fraud (false statements)? Then, I would say, you must treat everyone the same. There shouldn't be any difference in a case based on someone's social or financial status.

Now, the creditors are who (generally) bring up discharge complaints... that something is non-dischargeable. The Trustee could really care less about that and it's actually something that the Trustee isn't involved in.

I guess I just don't see the Trustee the same as you do. I seem them as administrator. The UST's job is to make sure you're not abusing the system. The creditors, that you didn't obtain credit by fraud or otherwise aren't entitled to discharge what you charged. There's enough separation of duties there to satisfy me.

I think the old system may have been too easy, and now the new system may seem too harsh. But, blame it on those who came before us and abused the system. One of my favorite movies is called "What's the Worst That Can Happen?" (Danny DeVito, Martin Lawrence). They make so much fun of the (pre-BAPCPA) Bankruptcy system, it's not even funny (but it is a comedy).