day 58 and no report of no distribuetion

[justbroke]

I spoke with my lawyer and he told me the trustee has been calling his office over the last several days trying to get him to dismiss my case. I don't understand that at all. Also, the trustee threatened to depose me. I don't know if the trustee is badgering within the limits of the law or what.

You are dealing with the United States Trustee (UST) who is responsible for administering the entire Bankruptcy program. The court doesn't administer the bankruptcy program, they are just used as a powerful "finder of fact" with the full powers of the U.S. District Court behind them. Many USTs call and tell attorneys to dismiss the case on their own. It saves time.

About a week ago the trustee requested, and I provided, forward looking documents...ie: paycheck stubs from my filing date to the present. I thought Chapter 7 always looked 6 months back.

Seems like they are looking at totality of circumstances under 11 USC 707(b)(3)(B). A Chapter 7 is not just a look backwards. It can also be up to the point ot discharge (or the hearing on the dismissal).

My lawyer said he expected the trustee to file a motion to dismiss for the totality of circumstances.

Exactly. Also, the UST may just file a Motion to Extend the Time to File a Complaint to Determine Dischargeability.

So as you can see I am concerned as to how accurate and up to date PACER really is. Hopefully, because there are no significant changes on pacer, I can relax. There is still not a report of no distribution or an interim report on pacer either.

I think everyone thinks that PACER is some sort of "log" of all events. PACER is not such a thing. PACER is an electronic Court Docket system. It only has things on there related to items "filed" with the Court for purposes of notice. You won't see anything from the UST until they actually file a Complaint or Motion to Dismiss.

Hey, it's Day 60, and if the UST doesn't file anything by midnight, you should be good!

[garyp15]

You are dealing with the United States Trustee (UST) who is responsible for administering the entire Bankruptcy program. The court doesn't administer the bankruptcy program, they are just used as a powerful "finder of fact" with the full powers of the U.S. District Court behind them. Many USTs call and tell attorneys to dismiss the case on their own. It saves time.

Seems like they are looking at totality of circumstances under 11 USC 707(b)(3)(B). A Chapter 7 is not just a look backwards. It can also be up to the point ot discharge (or the hearing on the dismissal).

Exactly. Also, the UST may just file a Motion to Extend the Time to File a Complaint to Determine Dischargeability.

I think everyone thinks that PACER is some sort of "log" of all events. PACER is not such a thing. PACER is an electronic Court Docket system. It only has things on there related to items "filed" with the Court for purposes of notice. You won't see anything from the UST until they actually file a Complaint or Motion to Dismiss.

Hey, it's Day 60, and if the UST doesn't file anything by midnight, you should be good!

Justbroke...thanks again for the input. I have one last question...Are you absolutely sure that the 60 days is based on the first 341 meeting and not the date of the continuance of creditors meeting? If it is the firs 341 then I am good. If it is based on the continuance date, then I have 10 more days till 60 days are up. My pacer status shows 60 days starting from the continuance.

[justbroke]

Justbroke...thanks again for the input. I have one last question...Are you absolutely sure that the 60 days is based on the first 341 meeting and not the date of the continuance of creditors meeting? If it is the firs 341 then I am good. If it is based on the continuance date, then I have 10 more days till 60 days are up. My pacer status shows 60 days starting from the continuance.

Yes, the deadline to determine dischargeability, by law, is set as 60 days from the first scheduled 341 Meeting. However, some District Judges have opined that a meeting can be continued, but the law is clear that it's based on "scheduling" and not "conclusion" like the other parts of the code.

If this is the case, then your attorney (and you) may have an argument that the UST is time barred because the last date to determine dischargeability has passed. If you're unsure when that date is, just look at your Notice of Bankruptcy. The last date is clearly indicated on that notice. That date can only move if a party in interest (creditor or UST or Trustee) has cause and asks the court to move it.

[garyp15]

Yes, the deadline to determine dischargeability, by law, is set as 60 days from the first scheduled 341 Meeting. However, some District Judges have opined that a meeting can be continued, but the law is clear that it's based on "scheduling" and not "conclusion" like the other parts of the code.

If this is the case, then your attorney (and you) may have an argument that the UST is time barred because the last date to determine dischargeability has passed. If you're unsure when that date is, just look at your Notice of Bankruptcy. The last date is clearly indicated on that notice. That date can only move if a party in interest (creditor or UST or Trustee) has cause and asks the court to move it.

It shows last day to object to discharge as 9/27. However, pacer shows days in status as 50.

[justbroke]

It shows last day to object to discharge as 9/27. However, pacer shows days in status as 50.

You go by the Notice, not PACER. PACER is notoriously wrong because the dates in PACER are all based on events that already happened. The Notice of Bankruptcy is the definitive source for the Last Date to File a Complaint to Determine Dischargeability since that date is set based on the first scheduled 341 Meeting of Creditors. Since it shows 9/27, your 60 days is over and done... yesterday.

Congratulations.

Now, the UST might try to bother you and your attorney, but the last date to file a complaint is clearly indicated by the Notice of Bankruptcy and it shows that the last date was 9/27/2010. With the exception of any fraud, you have a perfectly good offense and defense to any UST motions to dismiss or complaints on dischargeability.

This is where you find out if your attorney is worth the money. If the UST tries to file anything at this time, short of a complaint of fraud, your attorney should pounce and declare that the UST is time barred from any of the actions that they are attempting.

(As a matter of fact, you might want to check PACER today and see if the Discharge Order is there. It's probably not, because the darned Clerks are using the wrong tickle date. But it would be cool!)

[garyp15]

You go by the Notice, not PACER. PACER is notoriously wrong because the dates in PACER are all based on events that already happened. The Notice of Bankruptcy is the definitive source for the Last Date to File a Complaint to Determine Dischargeability since that date is set based on the first scheduled 341 Meeting of Creditors. Since it shows 9/27, your 60 days is over and done... yesterday.

Congratulations.

Now, the UST might try to bother you and your attorney, but the last date to file a complaint is clearly indicated by the Notice of Bankruptcy and it shows that the last date was 9/27/2010. With the exception of any fraud, you have a perfectly good offense and defense to any UST motions to dismiss or complaints on dischargeability.

This is where you find out if your attorney is worth the money. If the UST tries to file anything at this time, short of a complaint of fraud, your attorney should pounce and declare that the UST is time barred from any of the actions that they are attempting.

(As a matter of fact, you might want to check PACER today and see if the Discharge Order is there. It's probably not, because the darned Clerks are using the wrong tickle date. But it would be cool!)

Justbroke...I can't thank you enough for listening and most of all for sharing you expertise. I'll keep you posted with any changes.

[garyp15]

Justbroke...I can't thank you enough for listening and most of all for sharing you expertise. I'll keep you posted with any changes.

well I guess this isn't over. The UST is saying that going forward I have too much disposable income( I was over the median), even though I am negative on the means. The UST will try to show abuse and push for a 13. My attorney said the UST will file a motion to dismiss based on that fact, and the 60 day time limit really doesn't apply because the UST will file whenever they feel like it and that you are never out of the woods until you are discharged....and that isn't always true either. However, the 60 day time bar might be a good defense should it get that far. ...........This sucks!!!

[justbroke]

Sure, the UST can file "whenever" but they are barred from filing! So, let them file and then your objection is quite simple. The UST is time barred from filing a Complaint because the deadline to file a complaint to determine dischargeability has passed. At this point, TIME is truly on YOUR SIDE. I have NEVER EVER read any case where the UST was able to skirt a time bar. Specifically I read one case where the Debtor and Trustee filed a joint motion to extend the deadline... but filed this AFTER the deadline expired. Even though the Debtor agreed to the extension, the Judge very astutely recognized that the timeline passed and that it was jurisdictional in nature. Other courts disagree on this but the majority is that once the timeline passes, it passes.

Good luck. I hope that your attorney is not becoming a wimp. It sounds like he is becoming a wimp.

[garyp15]

Sure, the UST can file "whenever" but they are barred from filing! So, let them file and then your objection is quite simple. The UST is time barred from filing a Complaint because the deadline to file a complaint to determine dischargeability has passed. At this point, TIME is truly on YOUR SIDE. I have NEVER EVER read any case where the UST was able to skirt a time bar. Specifically I read one case where the Debtor and Trustee filed a joint motion to extend the deadline... but filed this AFTER the deadline expired. Even though the Debtor agreed to the extension, the Judge very astutely recognized that the timeline passed and that it was jurisdictional in nature. Other courts disagree on this but the majority is that once the timeline passes, it passes.



Good luck. I hope that your attorney is not becoming a wimp. It sounds like he is becoming a wimp.

Thanks for the encouragement justbroke...My attorney said the continuation of the meeting of creditors may have given the UST extra time beyond the 60 day timeline...which is why they file for a continuation. He said the 60 day timeline doesn't apply in regards to abuse.It can even be filed after discharge to put you into a 13. Basically, my attorney supposedly got into a argument with the UST over trying to get us to file a motion to dismiss, and at this point we are in a holding pattern with the ball being in the UST court. The USt said they have some type of evidence showing that we can do a 13. My attorney asked them to share it and they said no. My attorney said they may stop short of deposing or going before a judge, but there is no way to tell. If the 60 day rule would hold up, it would be a beautiful thing. I hope my attorney isn't getting wimpish too. Right now, down looks like up to me.

[justbroke]

T He said the 60 day timeline doesn't apply in regards to abuse.It can even be filed after discharge to put you into a 13.

Where did your attorney read that? The only thing that can vacate a discharge or go pass that date, is for fraud and abuse of process. I feel that abuse of process is fraud anyhow. While "abuse" can be a reason, the abuse in 707(b)(1) is not the type they are talking about. I think it is res when the bar date passes and a Trustee/UST attempts to dismiss for a totality of circumstances after the date has passed.

Abuse would mean those things in 707(a) which are: (11 USC 707(a))

1) unreasonable delay by the debtor that is prejudicial to creditors;

(2) nonpayment of any fees or charges required under chapter 123 of title 28; and

(3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) [sic--reference to previous paragraph number; now paragraph (a)(1)] of section 521, but only on a motion by the United States trustee.

Even in those cases of revoking a discharge, the Trustee/UST or other party, can only do so under the provisions in 11 USC 727(d). None of those speak of "totality of circumstances" or "abuse".

Here's a great case, In re Claude EMERY, v CITIBANK, N.A., 132 F.3d 892, 2nd DCA, 1998, in a complaint to vacate the discharge after the bar date has passed but before the discharge was entered. This goes to the heart of "my" argument although it's a creditor and not the UST. (The UST is also bound by the same language in 11 USC 727(d).)

First, the Court concedes that they impute the discharge date as being the date after the bar date has passed. So, for all intents and purposes, you have a discharge. It then says...

Once a discharge has been granted, a creditor may obtain revocation under § 727(d) if a creditor can prove both that the discharge was obtained through fraud and that the creditor had no knowledge of the fraud until after the discharge was granted. See, e.g., In re Ginsberg, 164 B.R. 870, 876 (Bankr.S.D.N.Y.1994).

The Bankruptcy Code and the Bankruptcy Rules obviously contemplate a unitary concept: If a creditor knows of a debtor's fraud before a bar date, the creditor should object to discharge. If there are no objections to discharge by the bar date, the bankruptcy court should grant discharge forthwith. A creditor then has a year to bring an action to revoke the discharge based upon knowledge of fraud obtained after the discharge date. In other words, Congress has provided the remedy of denying discharge to a fraudulent debtor from the beginning of a case until one year after discharge.

(emphasis added is mine.) So, if the UST didn't know of this "totality of circumstances" until today (after the bar date passed), then he might have a case. However, the UST knew "before" the bar date. He losses, at least in my book.

I might also read In re Molitor,2008 WL 4155283, Bankr. .S.D.Ga. Sep. 5, 2008.

Your case will certainly be interesting and I hope your attorney doesn't play possum by lying down for the UST.

(Note: I looked into this for my own case, because I was worried about the UST coming after me "after the fact".)

[garyp15]

Where did your attorney read that? The only thing that can vacate a discharge or go pass that date, is for fraud and abuse of process. I feel that abuse of process is fraud anyhow. While "abuse" can be a reason, the abuse in 707(b)(1) is not the type they are talking about. I think it is res when the bar date passes and a Trustee/UST attempts to dismiss for a totality of circumstances after the date has passed.

Abuse would mean those things in 707(a) which are: (11 USC 707(a))



Even in those cases of revoking a discharge, the Trustee/UST or other party, can only do so under the provisions in 11 USC 727(d). None of those speak of "totality of circumstances" or "abuse".

Here's a great case, In re Claude EMERY, v CITIBANK, N.A., 132 F.3d 892, 2nd DCA, 1998, in a complaint to vacate the discharge after the bar date has passed but before the discharge was entered. This goes to the heart of "my" argument although it's a creditor and not the UST. (The UST is also bound by the same language in 11 USC 727(d).)

First, the Court concedes that they impute the discharge date as being the date after the bar date has passed. So, for all intents and purposes, you have a discharge. It then says...

(emphasis added is mine.) So, if the UST didn't know of this "totality of circumstances" until today (after the bar date passed), then he might have a case. However, the UST knew "before" the bar date. He losses, at least in my book.

I might also read In re Molitor,2008 WL 4155283, Bankr. .S.D.Ga. Sep. 5, 2008.

Your case will certainly be interesting and I hope your attorney doesn't play possum by lying down for the UST.

(Note: I looked into this for my own case, because I was worried about the UST coming after me "after the fact".)

Justbroke......I AM DISCHARGED!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!

I had just finished reading your in depth case studies and I was going to relay it to my attorney. I thought I would check pacer to if the UST had filed the motion to dismiss and I see.." Discharge of Joint Debtors, It appearing that the debtors are entitled to a discharge, IT IS ORDERED: The debtors are granted a discharge under section 727 of title 11, United States Code, (the Bankruptcy Code).
I can't believe it. The only thing that makes sense is that they missed the 60 day deadline...as you said. Like I mentioned earlier, on Pacer they show me as 50 days in status from the date of the continuation of creditors meeting.
I called my attorney and he said they can still come after me but it would be very rare.
I just can't believe this ...What a roller coaster!
I want you to know how much your help has meant to me through this. You know how emotionally draining this process can be. Your ability to get me info that and support when I needed has meant the world to me.
Thank you for everything.
Now I can get on with my life!

[pathfinders]

Garyp15

Congrats!!!!!!! I have been following this thread.... WOW..... that is Great news.... Enjoy your new start

Justbroke is the best, and knows more than most attorneys

[cowgirlup289]

Justbroke - great research for all, and thank you. I have a question relating to the "closing" issue being a different animal all together, that you commented about 1st. My boyfriend (Texas) has a no asset 7, his attorney didn't file for the LLC which is literally broke, but he did add the business debt (which I'm reading a lot about here too). He filed on 3/31/10, the 341 was 5/10/10, continued by Trustee to 5/21/10 because attorney needed to file amendment to Schedules, and discharge was 7/12/10. However, still in "awaiting closing" status. Trustee did file a motion to appoint counsel (albeit 2 weeks after letter from separate counsel requesting statements, checks, etc.), and it was granted by the Judge, a month after said letter; and this information provided (more than they asked for actually) clearly indicates no luxuries and all business transactions, etc., even writing more checks than money in business account. His lawyer, who IS a wimp, hasn't heard anything since, but the only asset he truly has from the business (didn't reaffirm anything, let go of employees a year before filing), is a trailer worth about 4K that the IRS has a lien on. We are doing the "wait and see" game, but it's getting a little nerve racking. I'm trying to find relative case law regarding cases such as this, but what is your opinion if you don't mind me asking and Garyp15 - CONGRATS!!!!!

[justbroke]

Justbroke......I AM DISCHARGED!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!!!!

I am so happy for you! That's why I asked you to just check PACER because the discharge should be there. No sense in my pontificating about the elaborate discharge mechanisms, if you already had one. But hey, we all got to learn something today!

I want you to know how much your help has meant to me through this. You know how emotionally draining this process can be. Your ability to get me info that and support when I needed has meant the world to me.

Again, congratulations. I think your attorney is being very... conservative. Yes, the UST could come back, but at this point, I think you have more arrows in your quiver than they do. They were too lazy to just file a motion to extend the deadline... that's their fault!

[justbroke]

J I'm trying to find relative case law regarding cases such as this, but what is your opinion if you don't mind me asking and Garyp15 - CONGRATS!!!!!

There really isn't in. The case is in an "administrative" phase and that's up to the Trustee to prosecute any avoidable/fraudulent transfers or to recover property. The discharge was issued. The only thing you can do is wait. The administration of the case can take 1 year, easily and could go to 2 years! Most attorneys don't "sign up" to be on a Chapter 7 case for a year or two, so expect some pushback or request for additional retainer and payment of fees.

An asset case doesn't close quickly, so you'll have to be patient.