Statement and notice of presumed abuse...

[csonly]

I posted about this last week, but I wanted to re-post the exact wording on this statement, which will be below. Also, I'm confused between statement and motion. What exactly is this telling me. We knew we were over median, but our expenses put us in the negative on the means test. Does this mean that the UST is now reviewing income/expenses to make a determination?

STATEMENT AND NOTICE OF PRESUMED ABUSE
As required by 11 U.S.C. § 704(b)(1)(A), the United States Trustee has reviewed the
materials filed by the Debtors. Having considered these materials in reference to the criteria set forth in 11 U.S.C. § 707(b)(2)(A), and pursuant to 11 U.S.C. §. 704(b)(2), the United States Trustee has determined that: (1) the Debtors’ case should be presumed to be an abuse under 11 U.S.C. § 707(b); and (2) the product of the Debtors’ current monthly income, multiplied by 12, is not less than the requirements specified in 11 U.S.C. §§ 704(b)(2)(A) or (B). As required by 11 U.S.C. § 704(b)(2) the United States Trustee shall, not later than 30 days after the date of the filing of this Statement, either file a motion to dismiss or convert under 11 U.S.C. § 707(b) or file a statement setting forth the reasons the United States Trustee does not consider such a motion to be appropriate. Debtors may rebut the presumption of abuse only if
special circumstances can be demonstrated as set forth in 11 U.S.C. § 707(b)(2)(B).

[despritfreya]

It means exactly what it says. The UST has reviewed the information contained in what you filed and thinks you may be abusing the system. The UST has 30 days from the filing of the Notice to file a Motion to Dismiss. During the 30 days the UST will communicate with your attorney or you if you are pro se, request documents, review those documents and make a decision if a Motion to Dismiss is appropriate.

The Notice that was filed was filed because if it is not filed within 14 days of the 341 the UST is out of luck. Filing of the Notice does not mean that a Motion to Dismiss will be filed. It just gives the UST additional time to investigate.

Des.

[justbroke]

When I see the actual text, based on your earlier posts on this topic, this appears to be a catch all for your particular UST when you are over-the-median. This gives the UST, as Des writes about, the time to file a Motion under 707(b)(2) -- the Means Test -- if the UST is able to pick at enough of your expenses so that they bring you over the magic $182.50/month in disposable income (DMI).

The UST can always file a complaint under 707(b)(3) -- Totality of Circumstances and bad faith -- but that requires an adversary proceeding (AP). Why go through an AP if you don't qualify simply because your case is an abuse?

What did your attorney say again?

[clevelandmom]

CSOnly, this is almost exactly verbatim what my Statement of Presumed Abuse said. The UST waited until day 29 to file her notice that a Motion to Dismiss is Inappropriate. I am interested in hearing what your attorney said about this too.

[csonly]

My attorney said to wait and see if the UST files a motion and we will rebut. As Des said, the UST will be in contact with my attorney for documentation, I do have some changes to my schedules (I hope this is allowed to be done), i.e, my medical/dental should be higher, my phone/internet/gas, some of which are for production of income that I didn't know mattered before. The $200 "old car" expense that I didn't know about before, and I know may not be counted as an expense. I don't see anything listed for personal hygiene and paper products. Also, 2 in diapers, which is around $200 a month, I don't see that listed on my schedules. I'm not sure if my attorney combined these in the food section or not, but from what I remember, for a family of 5, that expense food/personal products, etc., shoud be $1633 and I believe on my schedule it is around $100 less than that. If the UST questions these. I'm hoping that the UST uses standards and increases some of my expenses to those standards as one of the other posters showed with her POA case. Since we are so close, I think that would help. I have previously listed my expenses and income from the schedules to get input from this forum, and with those suggestions, I don't think there is a problem with my expenses, but the UST may have a different opinion. Praying for a statement/motion as inappropriate to motion for abuse. If there are any errors on my filings, in my opinion, it is not abuse. In my case, nothing was done was to intentionally abuse the system. If we didn't fit into a ch 7, we woud have filed a 13. I have to thank all the people that do abuse the system (intentionally) to make this such a difficult process for the good faith filers. Thank you in advance for all your additional input and for taking the time to read my long posts.

[justbroke]

Well, with those corrections, I don't see any issues. Also, as I stated before, I think this may be standard procedure for your District for over-the-median income filers.

[csonly]

justbroke, thanks for your response. I also think that seems standard for over median and I hope their numbers correlate with ours and all is good. We do have many special circumstances for our expenses and my husband's place of employment is in foreclosure, so who knows what will happen. I don't want to bounce back and forth between 13 and 7 either (if things turn south with his work). At one point, our health insurance through his employer was cancelled and I think his employer had no intention of getting it paid to reinstate, so there were several weeks that he simply did not deduct the insurance premium from anyone's payroll check, so I also wonder if the UST will question that and could put that toward DMI, although as of now, after 2 months of not knowing if we had health insurance or not, it was reinstated and he started taking the premium out again before we filed. His employer also deducted 401K from my husband's check (and other employees 401K and child support) and did not put it into the 401K acct nor paid their child support, that was over a year ago though and we had that contribution stopped immediately, but we ended up having to take that money out due to hardship, but we never did get the 401K that he never put in. Everyone seems to just sweep these things under the rug, because they/we are happy to still be employed, as we don't know what this foreclosure is going to mean for his employment. As usual, my posts get so long, sorry.

[csonly]

clevelandmom...did the statement and notice of POA also go to your creditors? Pacer does show that it was sent to creditors, just wondering if that is standard also. I overthink everything, but I got the impression that my attorney doesn't expect a problem. He did say this happens a lot and I think he expected it due to being over median, but on the other hand the word "rebut" was mentioned by him. I realize the UST has a job to perform and I totally respect that. How did you handle waiting that "29" days? It was 6 days ago that the notice was filed and I feel like it has been 5 years.