Urgently need some sound advice, filing monday and very worried.Please read!

[worriedbker]

I am brand new on here but i am filing for ch7 mon and am very concerned about the manner in which i passed the means test. Id really like to talk to someone who is knowledgable and can hopefully put my mind at ease asap. Thanks a bunch!

[aljohnson007]

I'm sure someone would be happy to assist and advise but first, you have to let everyone know what is the problem. Are you filing pro se are do you have an attorney? How did you pass the means test? Please give some details.

[worriedbker]

I have an attorney filing for me. Initially the means test came back that I made too much money in the last six mos to qualify for ch 7. I then informed my Attny that I am living with and supporting my fiance and her child. My attny then had my fiance sign an afidavit that I support her and that she hasn't had any income during last six mos. My main concern is how hard will they scrutinize the fact that Im claiming her and her son even though we aren't married and are they going to accept just that affidavit as proof she has no income. Thanks for your help! I really appreciate it!

[aljohnson007]

The trustee will ask for the last two years tax returns and if you did not claim them as dependents, I don't believe the expenses will be allowed but your attorney may have a way around it and if so, pls let us know.

[music12]

well, is it true that your fiance hasn't had any income in the last 6 months? if somebody checked based on fiance's social security number, would they find employment/income?

[worriedbker]

The trustee will ask for the last two years tax returns and if you did not claim them as dependents, I don't believe the expenses will be allowed but your attorney may have a way around it and if so, pls let us know.

My attorney is "supposed" to be one of the best around here and he says the affidavit she signed shows that i alone support her and her son. we also discussed that I will be claiming them on this years taxes as dependents. That may come up at hearing I don't know.

[worriedbker]

well, is it true that your fiance hasn't had any income in the last 6 months? if somebody checked based on fiance's social security number, would they find employment/income?

Thats what i was wondering, was how in depth will they look into that? My attny hasn't asked for her ID or SS# or anything. Im really deperate to get this done due to a lot of old debts and taxes, and should of filed it in may right when I started making good income again and could afford to pay the attny, but I really was helping my fiance pay for private school for her kid and support her so I put it off and now I m right on the borderline and have to claim them. So if anyone has any knowledge or insite on how much they wouldverify this I would appreciate the input.

[OhioFiler]

Thats what i was wondering, was how in depth will they look into that? My attny hasn't asked for her ID or SS# or anything. Im really deperate to get this done due to a lot of old debts and taxes, and should of filed it in may right when I started making good income again and could afford to pay the attny, but I really was helping my fiance pay for private school for her kid and support her so I put it off and now I m right on the borderline and have to claim them. So if anyone has any knowledge or insite on how much they wouldverify this I would appreciate the input.

Giant RED FLAG!

[StartingOver08]

The Trustee has an entire staff of people to verify information. It is up to you to provide proof - and if you can not prove it, the Trustee will probably not allow it.

OhioFiler says it best: "Giant RED FLAG"

[music12]

if the affidavit is false, take it back from your atty RIGHT NOW. you could both end up in prison. ohiofiler hit the nail on the head.

if you think your life is hard now, just see how much worse it can get.

[hereforinfo]

Did she actually have any income the past 6 months? You haven't really answered that question. Maybe I'm wrong, but the way I'm reading this is that she really did have income but you helped pay for private school for her child. If that's the case you should be worried. At the very worst, you committed fraud by lying about her income. At the very least, the trustee won't allow private school tuition as an expense because many consider it a luxury, not a necessity and your bankruptcy could be dismissed.

I find it hard to believe that she had no income. Because if my child was in private school and we couldn't afford to pay our bills let alone tuition, I would be out working anywhere I could find a job - retail, fast food, anything to make ends meet or pay the tuition.

[backtoschool]

Thats what i was wondering, was how in depth will they look into that? My attny hasn't asked for her ID or SS# or anything. Im really deperate to get this done due to a lot of old debts and taxes, and should of filed it in may right when I started making good income again and could afford to pay the attny, but I really was helping my fiance pay for private school for her kid and support her so I put it off and now I m right on the borderline and have to claim them. So if anyone has any knowledge or insite on how much they wouldverify this I would appreciate the input.

The trustee will most likely ask for receipts and documented proof of just how much money has gone to supporting your fiance and her child. Your trustee can also request proof beyond a signed piece of paper that your fiance had no income. Your fiance will be required to provide income tax returns possibly. Your attorney should have told you this. The trustee can subpoena your fiance's finacial records because by signing that affidavit, your fiance has put financial information into the petition. Your fiance signed that affidavit under oath. If her tax returns and bank statements (which will probably be subpoenaed by the trustee) show that she had income, the trustee will probably find presumption of abuse, if not outright fraud. Lying under oath in a bankruptcy petition is a crime.

You would be far better off to amend the petition with the correct numbers. Either don't claim your fiance and her child, or add the fiance's income into your schedules.

[justbroke]

I have an attorney filing for me. Initially the means test came back that I made too much money in the last six mos to qualify for ch 7. I then informed my Attny that I am living with and supporting my fiance and her child. My attny then had my fiance sign an afidavit that I support her and that she hasn't had any income during last six mos. My main concern is how hard will they scrutinize the fact that Im claiming her and her son even though we aren't married and are they going to accept just that affidavit as proof she has no income. Thanks for your help! I really appreciate it!

There is some caselaw where Trustees have come down hard on those supporting people that they have no legal obligation (or lineage) to do so. There was one case where the Trustee basically stated that the unsecured creditors shouldn't suffer because of the Debtor's life choices. Harsh but true.

Now, let's just fast forward to your case...

Now, you could claim them as household members, for purposes of the Means Test and being over/under median. however, for other purposes, this will probably be scrutinized. While I got married before confirmation (after filing), I was never asked for my certified marriage license, but it was brought up a few times, even by a creditor. You may get questions from the Trustee, and they may seek to dismiss your case because you don't qualify to receive a discharge under Chapter 7.

I'm going to be blunt. I don't see how you can claim your fiance and fiance's child as dependents if you have no evidence of the same (prior tax returns). Even with that, Trustees have been very keen on this. To quote one case "[t]o grant such voluntary expenditures priority over existing legal obligations [to creditors] would be to permit [the debtor] unilaterally to subordinate his creditors to his personal lifestyle choices." In Re Mastromarino, 197 B.R. at 178

The major case on this was the BAP's In Re. Meler in 2002 (BK-02-2944 Arizona 2002).

I'm not going to say that the Trustee will use Meler and Mastromarino cases against you, but it's possible.

For example... who is the biological father of the minor child? Doe the biological father provide support in the form of child support payments? Is the biological mother (your fiance) even attempting to have the biological father pay? Why not? If there are contributions from the biological father, did you include them as contributions (income) from the biological mother (your fiance)? Why or why not?

(I pose these questions and response only in the hopes of learning more, and preparing you for possible Trustee questions and objections. They will ask you who those people are that you are supporting -- they did for me!)

[justbroke]

... but I really was helping my fiance pay for private school for her kid and support her so I put it off and now I m right on the borderline and have to claim them. So if anyone has any knowledge or insite on how much they would verify this I would appreciate the input.

I totally missed that admission (underlined).

Not only are they not legal dependents, you have been paying for private school tuition? Also, the way you word it concerns me. You wrote "helping her pay for private school". Does that mean that she was paying part of it? With what income?

Then you ask if how much they verify the facts in the case.

Do you see how quickly the questions start coming up?

[music12]

just to be clear, as long as you have not filed a false affidavit or false forms, you have not committed any fraud. you so far only gave them to your attorney. but if your attorney then files it and its false, you'll have to be very lucky not to get in trouble. please don't do this to yourself. not worth it.