motion to dimiss

[italiana66]

Ok..we filed in feb 2010 went to 341 meeting and everything went well..one week later we got a letter about presume of abuse...we responded and then we got a certification of service where we had to answer a bunch of questions and provide more documentation...which some we couldn't..such as cc statements, checks register..also we had a letter from my doctor explaining my medical condition...well it has been 2 weeks and no word from the trustee...how much longer do we have to wait? Does anyone know if we are going to end up in court???? Please help!!!!!!

[italiana66]

anyone???????

[Meatstick]

If you supplied the UST with everything they asked for then you just need to sit tight and wait. If you sent incomplete paperwork you will probably have problems. With what has been posted on these forums most people who are contacted by the UST must provide extra documentation but for a large majority the UST then withdrawls their motion.

You need to give more info if you want better feedback. Did you file with a lawyer or did you do it all yourself ?

[justbroke]

I think I answered this before in another thread. In the other thread, you asked about the flags and I responded with...

SS if your Judge's designation (in Santa Fe). MDISMISS and a Motion to Dismiss is pending. That MDISMISS is not a good thing. You should be speaking with your attorney about that motion to dismiss.

As for the reasons you're getting such a Motion, no one can answer without the specifics of the motion to dismiss and the exact Title 11 sections that the UST is dismissing for. Those could be 11 USC 727, 11 USC 707(b)(2) and/or 11 USC 707(b)(3). If you filed with an attorney, work with your attorney.

If you didn't file with an attorney, you'll need to provide more information if you would like us to give you some suggestions on how to proceed.

[italiana66]

we are working with an attorney....that presumption of abuse was 11usc707...i was just wondering what they could do because we didn't have cc statements from the past year or the check copies....that's all the doc we didnt have in our possession...our income is higher than the average for NM...but our DMI is negative 800.00....my question is..how long does the trustee have to make a decision or can he take his sweet time?

[backtoschool]

If you didn't supply the US Trustee with the required checks and credit card statements, then you are not in a good position. The US trustee is questioning your expenses, and if you do not provide what is asked for, you are going to have your case dismissed.

You cannot pick and choose what documentation to send the US Trustee. You have to send everything asked for, no exceptions.

[italiana66]

thank you for your response....we gave him 2 yrs of bank accounts where all the checks we wrote are in there, as far as the cc statements i dont have them...call the cc company but the want to charge us a lot of money to obtain them...i just don't know what to do, the lawyer said not to worry about it...if i dont have them i dont have them...the trustee can always obtain them himself...true?

[backtoschool]

thank you for your response....we gave him 2 yrs of bank accounts where all the checks we wrote are in there, as far as the cc statements i dont have them...call the cc company but the want to charge us a lot of money to obtain them...i just don't know what to do, the lawyer said not to worry about it...if i dont have them i dont have them...the trustee can always obtain them himself...true?

Yes the trustee can obtain them, but it will make your case go easier if you obtain them yourself.

If they are asking for that much documentation, I think you are probably being dismissed for a totality of circumstances. Here are some questions to ask yourself as to why the US trustee might have flagged your case for abuse:

1 Are you surrendering secured collateral that will lower your monthly expenses by a great deal?

2. Did you have a lot of large purchases on your credit cards in the last year that were for discretionary items such as trips, luxury items, etc.?

3. Are your car payments, housing payments or schooling payments, etc way above the irs allowed norms?

4. Are you trying to claim student loans as an expense?

5. Did you receive a lot of cash/check "gifts" from family members in the last year?

I think you would be better off paying to have the credit card statements printed out and then send them to the US Trustee rather than have the US Trustee have to subpoena them.

[italiana66]

yes, we gave up our second home but it was a rental and without our rent we couldnt afford the mortage payment...and for the other questions the answer is no...some cc company want to charge us up to 75.00 per statements which i cannot afford

[justbroke]

Hopefully, your attorney can work through this, but the UST sees something that they don't like. Surrendering property while claiming it as an expense (on Schedule J) will almost always draw a "totality of circumstances" objection. Also, you are probably over-the-median, and that certainly draws increased scrutiny on the debt.

[blockhead]

"I think you would be better off paying to have the credit card statements printed out and then send them to the US Trustee rather than have the US Trustee have to subpoena them"

In my case the UST 'asked' to get the CC records themselves right upfront - they had a standard letter I signed and had notarized by my atty and sent back to them which they then sent on to the CC companies. It wasn't a subpoena as I had approved their release.

I doubt (having seen the wording) that the CC companies would be likely to try to charge the UST $75. Then there is the question as to whether $75 would get all the statements requested - in my case it was 2 years.

$75 for 8 credit cards or so is $600! That is more than it cost me to get the bank to get copies of all cancelled checks and deposit slips for a year.

Maybe the UST can indeed do something similar here..

[justbroke]

The US Trustee issues subpoenas. They get whatever they want. Usually it's the "panel" Trustee who asks for a release by having you sign something, since they are nothing more than an attorney appointed to the case.

[italiana66]

Thank you guys...all the info helped....keeping my fingers crossed

[blockhead]

The US Trustee issues subpoenas. They get whatever they want. Usually it's the "panel" Trustee who asks for a release by having you sign something, since they are nothing more than an attorney appointed to the case.

Maybe mine was the exception then, as it was the UST that asked me to sign the release, and it was not a subpoena. Maybe varies district to district.

[italiana66]

Hi Blockhead...it seems like this happened to you as well...how long did the whole process take? Did you have to go to court?