Motion to dismiss, again.

[Kingxray]

With one day left on the UST deadline they filed a motion to dismiss again. We dismissed our last case and refiled to adjust our numbers by the UST suggestion and they still filed the motion to dismiss.

We had our 341 on Aug. 13 (which was continued) and they filed the statement of abuse on Aug. 24 and claimed they were within the "10 day statement" and filed the motion to dismiss Sept. 23 and claimed they did it in a timely fashion. Yeah sure.

They also claim we have disposable income because we are surrendering both our houses. What? We are not surrendering both our houses! We have a reaffirmation agreement that has been filed with the court. We are only surrendering the house we could not sell in this market. Are they smoking crack?

They also adjusted some of our expenses on the B22, medical and telecomuncations to make sure we had a few dollars of DI at the end. What ever...

They also are stating that hubby got too much taxes withheld. We claim 2 because there are 2 of us. We got a huge return last year because we still had both houses. We are not likely to see one like that again.

Bad faith and/or Totality of the Circumstances. I guess they are playing this card again. And again they site the cases of Lamanna 153 and Krohn 886. They are stating with "belt-tightening" (yes it says that in the motion), we can fund a chapter 13. Does anyone know about those 2 cases?

Anyway, we aren't surprised. Once my dad's lawyer stepped into our case to cause us grief, our lawyer suggested that if it came to this that we should fight it and he would not charge us that much more. I'll talk to him tomorrow. If we lose we will have to covert to a 13.

Oh well. Sorry so long, just needed to vent. Can you believe we have been going through this since last October? It has been almost a year. Will it ever end? Thanks.

[liz417]

Oh, so sorry to hear you are still having problems with your case. Sounds like you have a great attorney though...

Hang in there...

[Kingxray]

Thanks. I will know more tomorrow. I had some hope when the trustee filed the report of no distribution and satisfied our 341 but I guess you are never safe until you see those infamous words "awaiting discharge". I wonder if we will ever see those words. Ugh.

[shabam]

You're nearly there, I would fight this to the end.

[destitute]

please keep us informed. I have followed your posts with interest for the past few months and I wish you the best! My .02 is to fight!

[killinstinct]

Hang in there...sorry you're having all this aggrivation.

[ohio]

Omg, the frustration! I feel for you both and hope this is finally over soon. Sending good vibes your way.

[2manybills]

I'm glad you have a good attorney who is willing to fight for you. I'm hoping that once he files an opposition to the motion to dismiss, that the UST will withdraw their motion!

Keep us posted!

[Kingxray]

Thank you all for your support. I surely need it. I will let you know what our lawyer said after I talk to him this afternoon. Thanks again.

[fooked]

Good luck... will keep you in my prayers.

[Kingxray]

So I talked to our lawyer this afternoon. He just got back from vacation and had not read the motion to dismiss as of yet. He printed it and we went through it briefly. He thinks the UST made a mistake when she entered that we were surrendering both homes, as we are not. We are only surrendering one and have reaffirmed the other. But he also thinks my dad's lawyer may be behind this as well, trying to get a dismissal from the UST.

Either way he is going to review the motion and call the UST next week. We may go up the UST office and explain our case or our lawyer may try to negotiate a deal for X amount of dollars. If neither work, we are going to trial. I am hoping that we can just make a deal and this will all go away. I'd rather come up with some money now than be in a 5 year plan, dragging this nightmare out even further.

Thanks again for the support. I just thought I'd give ya all an update.

[justbroke]

We had our 341 on Aug. 13 (which was continued) and they filed the statement of abuse on Aug. 24 and claimed they were within the "10 day statement" and filed the motion to dismiss Sept. 23 and claimed they did it in a timely fashion. Yeah sure.

BOth are true. They did file within the 10-days and they did file within 30 days of the 10 day notice!

They also claim we have disposable income because we are surrendering both our houses. What? We are not surrendering both our houses! We have a reaffirmation agreement that has been filed with the court. We are only surrendering the house we could not sell in this market. Are they smoking crack?

Well, then you have a rebuttal now, don't you?

They also adjusted some of our expenses on the B22, medical and telecomuncations to make sure we had a few dollars of DI at the end. What ever...

I don't know if they can touch medical (unless you're abusing the "medical" expense category in which you can plug any number. Also, telecommunications is hard to fight, so if you have a high number there (over $100 or even $150) they can lower it (depends on Jurisdiction). Again you can rebut this if you can prove it's for the health and welfare of you or your family.

They also are stating that hubby got too much taxes withheld. We claim 2 because there are 2 of us. We got a huge return last year because we still had both houses. We are not likely to see one like that again.

Well, if you're getting a REFUND, then that is income! You just said you aren't surrendering the homes, then make a statement that you get a huge REFUND because of the homes, then say that you are not likely to see that again. So, are you surrendering something??? The Trustee can and will use overwithholding as income on their "internal" Form B22A. I wrote about this in another thread. This is one of the most abused categories on the Schedules (taxes withheld).

Bad faith and/or Totality of the Circumstances. I guess they are playing this card again. And again they site the cases of Lamanna 153 and Krohn 886. They are stating with "belt-tightening" (yes it says that in the motion), we can fund a chapter 13. Does anyone know about those 2 cases?

I read Krohn before. It just means that you are not using appropriate values -- as far as the Trustee is concerned -- in different categories. In Krohn BR 886 the Trustee found that the budgets was "attributed the large food bills to his wife's dislike for cooking, and the large clothing allowance to her custom-made clothes". The Trustee is probably not liking your Telecomm bill and saying you could tighten your belt. You don't need premium cable. You don't need all the cool features on your cellular phone... etc. etc.

Oh well. Sorry so long, just needed to vent. Can you believe we have been going through this since last October? It has been almost a year. Will it ever end? Thanks.

Yes I can. So you should fight it this time, if you can rebut the "totality of circumstances". I still see some holes in your review of the case and what I see the Trustee going after.

Don't take me wrong... I do hope you make it through this. You need to work with your lawyer and rebut the Motion. I don't think there's a "deal" to make with money. They are asking for a dismissal because you have too much disposable income.

Again, if you have the rebuttal then I'd rework a Form B22A as if you didn't have that extra home, and tighten down some of the expenses (both on B22A and Schedules I/J) and see if you're still not over the magic $108 and $182 numbers.

[Kingxray]

BOth are true. They did file within the 10-days and they did file within 30 days of the 10 day notice!

Aug. 13 to Aug. 24. Isn't that 11 days? Either way we don't care about that. I was just irked when we received the motion

Well, then you have a rebuttal now, don't you?

Yes, we do!

I don't know if they can touch medical (unless you're abusing the "medical" expense category in which you can plug any number. Also, telecommunications is hard to fight, so if you have a high number there (over $100 or even $150) they can lower it (depends on Jurisdiction). Again you can rebut this if you can prove it's for the health and welfare of you or your family.

We don't care about this much either. If the second home is taken out of the scenario, as it should be, the adjustments they made to medical and telecommunications would put us in such a small C13 that it doesn't matter to us.

Well, if you're getting a REFUND, then that is income! You just said you aren't surrendering the homes, then make a statement that you get a huge REFUND because of the homes, then say that you are not likely to see that again. So, are you surrendering something??? The Trustee can and will use overwithholding as income on their "internal" Form B22A. I wrote about this in another thread. This is one of the most abused categories on the Schedules (taxes withheld).

We are surrendering one of the homes. We still had both homes the last time we filed our return and that is why it was so much. They don't want the return (our district handles tax returns differently than I have seen on these threads). They just used this under the belt-tightening totality of circumstances category. They also mentioned my husband's bonuses in that category and said it was not factored in but the money could be used to pay creditors. But heck bonuses aren't guarenteed.

I read Krohn before. It just means that you are not using appropriate values -- as far as the Trustee is concerned -- in different categories. In Krohn BR 886 the Trustee found that the budgets was "attributed the large food bills to his wife's dislike for cooking, and the large clothing allowance to her custom-made clothes". The Trustee is probably not liking your Telecomm bill and saying you could tighten your belt. You don't need premium cable. You don't need all the cool features on your cellular phone... etc. etc.

They mention Krohn and Lamanna under the bad faith totality circumstances section as to why they use this claim. We aren't disputing it. I just wondered what happened during those cases.

Yes I can. So you should fight it this time, if you can rebut the "totality of circumstances". I still see some holes in your review of the case and what I see the Trustee going after.

Don't take me wrong... I do hope you make it through this. You need to work with your lawyer and rebut the Motion. I don't think there's a "deal" to make with money. They are asking for a dismissal because you have too much disposable income.

My lawyer says that often in cases like ours we sit down and explain our story to the UST and they often will make a deal and if not we will go to trial. I trust him.

Again, if you have the rebuttal then I'd rework a Form B22A as if you didn't have that extra home, and tighten down some of the expenses (both on B22A and Schedules I/J) and see if you're still not over the magic $108 and $182 numbers.

No more reworking numbers or refiling. I am worn down. We dismissed our last case and reworked the numbers and they still don't accept them. It is time to fight or go 13. My dad's lawyer is just too much in the face of the UST. It is time she sees our faces. There is two sides to every story.

Thanks so much for your imput. It is greatly appreciated. I will keep you posted.

[justbroke]

Aug. 13 to Aug. 24. Isn't that 11 days? Either way we don't care about that. I was just irked when we received the motion

No, it's not 11 days. When the 10th day falls on a Saturday, Sunday or Holiday (or other Non-Court day), the date falls on the next weekday. In that case, it was Monday the 24th.

No more reworking numbers or refiling. I am worn down.

I didn't mean it as redo your plan, but know what your battle strategy is. If the only thing you need to "fight" on is the property surrender vs reaffirmation, then make sure that's a winning strategy by "running the numbers".

Thanks so much for your imput. It is greatly appreciated. I will keep you posted.

We are awaiting your results.. and expecting good results!

[momisery]

Our cell phone bill is 119.00 per month. Hubby HAS to have a cell phone, he HAS to have texting and internet hookup, and HAS to have GPS service. He works for a insurance company sort of like AFLAC, and they tell you that your expected to have those so they can contact you on the road. I wonder if they will fight that? We don't have a home phone, so part of the bill is my little cheap flip phone that has nothing on it.