Presumption of Abuse Filed

[mike258]

Mike thats a nightmare for sure. Did you fight the dismissal?

ST

I filed opposition to the dismissal but I could not afford the added legal fees to continue my fight so I filed a motion to convert to chapter 13. Sucks but I had no choice in the matter.

[screentest]

Thanks for pulling this all together in one place. I'm on day 6 since my own 341 concluded... so far not a peep.

Good. I hope it stays that way!

ST

[keptdigging]

There are two deadlines for the UST. The first is to file a presumption of abuse if the UST is going after you for things on your Means Test and/or Schedule I/J related to "disposable income". They must file a statement of presumed abuse within 10 days of the "concluded" 341 Meeting, and then file a motion to dismiss or retract their presumption of abuse within 30 days of the statement of presumed abuse. Once that 30 days has passed, they can't dismiss for a presumption of abuse.

The other tool the UST has in his bag of tricks, is the Totality of Circumstances and Bad Faith reasons. The UST can present these up until Day 60 after the first scheduled 341 Meeting. The UST can also ask for more time.

No news is always good news. Yes, the 60 Days is the meaning behind "welcome to the 60 day club".

Thanks for pulling this all together in one place. I'm on day 6 since my own 341 concluded... so far not a peep.

[screentest]

Mike thats a nightmare for sure. Did you fight the dismissal?

ST

[mike258]

The other tool the UST has in his bag of tricks, is the Totality of Circumstances and Bad Faith reasons. The UST can present these up until Day 60 after the first scheduled 341 Meeting. The UST can also ask for more time.

This is what happened to me. The UST requested a 60 day extension 4 times. On the last day of the 4th extension, I got hit with a 707(b)(3) dismissal. That was 11 months after I filed my case. If you see nothing after day 61, you should be in the clear.

[justbroke]

Justbroke, this is excatly what I was hoping to get cleared up. I could not understand the whole 10 day 30 day 60 day filing/exclusion type processes here. The US Trustee filed the presuption of abuse on day 9 after the 341 and now nothing. We are now 32 days past the presumption deadline and nothing from them. Is it safe to assume the presumption will not be a proibelm under 707(b) anymore and just wait out the last 21 days for a "totality" filing?

The UST, in your particular case, is now time barred from filing a motion to dismiss under the 707(b)(1), (b)(2) "presumption of abuse" cause. The only thing the UST can now do is a 707(b)(3) "totality of circumstances" (or "bad faith") dismissal.

My attorneys were going to contact the US trustees office today for an update; however, we agreed in conference to let a sleeping dog lie at this point. No sence in bringing our file back to the top of the stack right?

Exactly. Let them fall asleep at the wheel and then when it's time, you just tell them... too late!!!

[screentest]

Thalk All,

Justbroke, this is excatly what I was hoping to get cleared up. I could not understand the whole 10 day 30 day 60 day filing/exclusion type processes here. The US Trustee filed the presuption of abuse on day 9 after the 341 and now nothing. We are now 32 days past the presumption deadline and nothing from them. Is it safe to assume the presumption will not be a proibelm under 707(b) anymore and just wait out the last 21 days for a "totality" filing?

My attorneys were going to contact the US trustees office today for an update; however, we agreed in conference to let a sleeping dog lie at this point. No sence in bringing our file back to the top of the stack right?

ST

[justbroke]

But the US Trustee has a deadline to formally object to the filing/discharge, right? 60 days after the original 341?

There are two deadlines for the UST. The first is to file a presumption of abuse if the UST is going after you for things on your Means Test and/or Schedule I/J related to "disposable income". They must file a statement of presumed abuse within 10 days of the "concluded" 341 Meeting, and then file a motion to dismiss or retract their presumption of abuse within 30 days of the statement of presumed abuse. Once that 30 days has passed, they can't dismiss for a presumption of abuse.

The other tool the UST has in his bag of tricks, is the Totality of Circumstances and Bad Faith reasons. The UST can present these up until Day 60 after the first scheduled 341 Meeting. The UST can also ask for more time.

No news is always good news. Yes, the 60 Days is the meaning behind "welcome to the 60 day club".

[keptdigging]

But the US Trustee has a deadline to formally object to the filing/discharge, right? 60 days after the original 341?

My point being (and correct me someone if I'm wrong) that there IS a deadline and no news is good news--if deadline passes you get your discharge.

I have been thinking that this (and objections by creditors) is the meaning of the 60 days in the 60 day club.

screentest--you're half way there. Panel TT is done.

[backtoschool]

The panel trustee filing a report of no distribution does not preclude the US trustee from still examining your case unfortunately. Both operate separately. The US trustee still could look into the presumption of abuse based on your income and expenses and try to kick you into a chap 13. If you end up being dismissed on a "totality of circumstances". If you are above the median and have expenses that could be questioned, that is still an option, although a less likely one than the presumption of abuse. (unless your expenses are way out of line with the norm for your area).

[screentest]

Update

Huge SIGH!

Well today is the 31st day after the presumption of abuse was filed by the US trustee in our case. Our continued 341 was scheduled for this Wednesday so I checked pacer today for an update.

Posted Today:

"Report of no distribution and a request to be excused from the case by the panel trustee. "

Our case status has now been changed to "waiting for discharge." Still nothing from the US trustee on the presumption of abuse filing. No emails to our attorney, no phone calls and no requests. Again we are now 31 days past the presumption of abuse filing. We have 21 left days until discharge.

Do you think the US trustee is finished with us as well or could we expect them to continue after us for the 707(b) flag. Incidentally the 707 (b) was filed one day after we updated our schedules and the means test so we don't believe they had time to consider this new information before filing. We then had a phone conference with the US trustees office to clarify some information on my pay-stubs etc and now nothing.

Don't they have to respond in some way within 30 days of the presumption filing or is this just wishful thinking on my part?

Thanks All
ST

[UghUghUgh]

Opps!

Once again spoke to soon. Just received notice on PACER of a new continued 341...now to September 29th. Guess they weren't "done" with us after all.
I cant wait!

The Chapter 7 nightmare continues.

ST

JEBUS! I wish you the best. I have a feeling that after all this worry you will be ok. I hate getting screwed with!

[screentest]

Opps!

Once again spoke to soon. Just received notice on PACER of a new continued 341...now to September 29th. Guess they weren't "done" with us after all.
I cant wait!

The Chapter 7 nightmare continues.

ST

[neverlearn]

Hi all,

The big 3 credit reporting agencies are a lot more pliable than you might think. My experience with them is to write letters, and keep bugging them. I have removed judgements w/o having them vacated, taken accounts off, had accounts included in a BK changed to 'closed by consumer' etc. The trick seems to be using written correspondence and being persistent. All three said "No" when I first contacted them, but after a year of letters back and forth they all had done what I requested. It sounds like a lot, but it is really just a letter every week or two. If you really need your credit score back it is worth the try.

Just my experience,

Tom in Colo

I agree, after my first BK in '93 I had many accounts still showing charge offs as well as a repo which were all included in the BK7. Even a year after the BK some creditors were monthly updating the charge offs and repo. But after many letters to the big 3 plus to the creditors all accounts showed included in BK. The repo from Nissan Acceptance Corp was taken off the reports completely in less than two years after the BK.

I was writting letters monthly to creditors and the big 3 so I could of course get my FICO back up. So I guess I could be in this mess 17 years later, you know, "neverlearn"...

[ccsjoe]

Fingers crossed here, hope your attorney is right and that things are good to go!!