10 days after 341 - Insufficient Information Necessary to Make Presumption of Abuse

[kphipps34]

The lawyer also put in the objection a cost comparison between me paying my sister to take care of my parents or putting them in a nursing home. That is the big objection the trustee has is that my sister doesn't work.

[justbroke]

A Statement of No Determination does not satisfy the 10 day limitation of Section
704(b)(1)(A). (In re Ansar, 383 B.R. 344, 347 (Bankr. D. Minn. 2008) (Chapter 7); In re
Perotta, 378 B.R. 434, 438 (Bankr. D.N.H. 2007 (Chapter 7); In re Robertson, 370 B.R. 804
(Bankr. D. Minn. 2007)(Chapter 7).

This is exctly the strategy that I pointed to earlier. The UST has no grounds for "this' type of dismissal.

The United States Trustee did not file the required statement as to whether the Debtor’s
case would be presumed to be an abuse under section 707(b) within the required time. WHEREFORE, the Debtor respectfully requests that the United States Trustee’s Motion To Dismiss be dismissed

This is good, but remember that the UST's trump card is the 707(b)(3) Totality of Circumstances dismissal. Your attorney played this exactly as I would have... challenge the motion under 707(b)(2).

[kphipps34]

Abuse was filed because I'm a higher income and the trustee is questioning that my sister lives with me and ibpay her to take care of my parents who live with me

[IamOld]

Sounds like your lawyer is on the ball!!!!!!!!! BEST OF GOOD LUCK!!!!!!

(do you know why the "abuse" was filed?)

[kphipps34]

Wow still going through this nightmare. My lawyer filed objections to dismiss. And this:

A Statement of No Determination does not satisfy the 10 day limitation of Section
704(b)(1)(A). (In re Ansar, 383 B.R. 344, 347 (Bankr. D. Minn. 2008) (Chapter 7); In re
Perotta, 378 B.R. 434, 438 (Bankr. D.N.H. 2007 (Chapter 7); In re Robertson, 370 B.R. 804
(Bankr. D. Minn. 2007)(Chapter 7).
12.
The United States Trustee’s failure to satisfy the 10 day rule bars a Motion To Dismiss
under Section 707(b)(2). (In re Draisey, 395 B.R. 79 (BAP 8th Cir. 2008) (Chapter 7); In re
Perotta, 378 B.R. 434, 438 (Bankr. D.N.H. 2007) ( Chapter 7); In re Robertson, 370 B.R. 804
(Bankr. D. Minn. 2007) (Chapter 7).
13.
The United States Trustee did not file the required statement as to whether the Debtor’s
case would be presumed to be an abuse under section 707(b) within the required time.
WHEREFORE, the Debtor respectfully requests that the United States Trustee’s Motion To
Dismiss be dismissed

[justbroke]

The garnisher doesn't need a new garnishment order since the Bankruptcy only "stayed" any current legal action. The only other way to stop a garnishment is a Temporary Restraining Order (TRO) and that would be difficult unless you can prove fraud -- including, but not limited to improper service -- on the part of the garnisher.

If you REALLY have that many dependents, then it probably would be a close call, but with your parents on SSA, any income that they have that pays for something (even the electricity), offsets your expense! (Yes, even though SSA income is "protected" from creditors.) The key would be, just how much it "costs" you directly to take care of your parents, even though they have medicare and SSA insurance.

Just go back and do a Chapter 13 at least! You may be surprised at how much your DMI is.

[kphipps34]

Yes someone really messed up! The lawyers office I believe had a paralegal enter the info. She told me yesterday that they were meeting about it today and she would get back to me. Guess what. I haven't heard from them. Looks like a lot of disposable income but really isn't as I support 8 dependents. Including my 2 parents. Long story short I was being garnished 1300 a month on a HELOC from a for kosher in 09. Guess I'm kinda screwed at this point. So if I let this case get dismissed does the company that was garnishing me have to obtain another default judgement or as soon as the stay is lifted can they start garnishment immediately? Any other way to stop a garnishment other than bankruptcy????

[justbroke]

Two observations. First, the UST won't win under a "presumption of abuse" since they didn't file such within the 10 days. However, the UST can (and probably will) win on a "totality of circumstances" under 707(b)(3)(B). A technicality, but worth mentioning.

Yes, your attorney messed up your numbers! I would see if you could get a refund of "sum" of the fees or, should you choose to go into a Chapter 13, not charge for conversion. You do have money available and it appears to be a LOT OF DISPOSABLE INCOME! I don't know how your attorney thought that you could both claim a marital adjustment (to pay a secured debt) AND the full payment on a secured debt at the same time. Just doesn't make any sense at all, unless the attorney uses a paralegal and the paralegal messed up. Well, the attorney should have reviewed everything anyhow, so it's still his/her mess-up.

I'm sorry to read all this, but it does seem like the UST has valid cause to have your case dismissed. I think you paid WAY TOO MUCH for a Chapter 7. You could possibly get a fee review -- depending on your District. Unless you had some really intricate business related items and some tricky assets, I don't see that fee.

I had to look back at the math errors and they are just EGREGIOUS. Taking a $912 deduction for the vehicle "operating" allowance (on B22A line 22A) does not even make sense! Are you sure line 22A was $912? It should have been $512 for the South Census Region, and specifically for Atlanta. However, if you did put $912... that is WAY too much.

[IamOld]

Good grief again - sounds like form/math problems for the $FIVE thousand you paid...I think your atty needs to get his/her act together FAST and she what he can do...and/or tell you what kind of 13 you'd be looking at...

Here's the two things on the motion to dismiss. Guess the attorney messed up some lines on the means test. Which really sucks because I paid him 5000 to file this. UGH. Yes I was thinking that too about the chapter 13 payment probably wouldn't be as much as the garnishment.

On line 17 of the means test form (“marital adjustment”), the debtor deducted $1,831
from the $12,020 current monthly income figure. The $1,831 figure consists of: $633 for
taxes; $37 for HOA dues; $588 for “husband’s mortgage payment;” and $573 for student
loans. The debtor later clarified that the $588 figure is the difference between the husband’s
monthly mortgage payment and the IRS housing standard (as shown on line 20B of the
means test form).
20.
In this case, amounts the debtor’s husband pays for the couple’s residence are paid on
a regular basis for the household expenses of the debtor and her dependents. Accordingly,
it is improper to deducted these amounts on line 17 of the means test form.
On line 42, the debtor calculated that the average monthly payment on the loan
secured by the Chevrolet Suburban is $320.67.
28.
On line 23, the debtor calculated and deducted the difference between the IRS
standard of $496 and the debtor’s average monthly payment of $320.67: $175.33.
29.
Line 22A directs the debtor to indicate the number of vehicles for which she pays the
operating expenses or for which the operating expense are included as a contribution to her
household expenses on line 8 of the means test. The debtor checked the box indicating she
pays operating for two or more vehicles.
30.
The applicable vehicle operating expense for two or more vehicles is $468.
31.
The debtor deducted $912 on line 22A of her means test form.
32.
When the improper deductions on lines 17 and 22A are eliminated from the debtor’s
means test form, the form shows the presumption of abuse arises
5The United States Trustee continues to investigate the propriety of other items on the
debtor’s means test form and may amend this motion to include those items.

[kphipps34]

Here's the two things on the motion to dismiss. Guess the attorney messed up some lines on the means test. Which really sucks because I paid him 5000 to file this. UGH. Yes I was thinking that too about the chapter 13 payment probably wouldn't be as much as the garnishment.

On line 17 of the means test form (“marital adjustment”), the debtor deducted $1,831
from the $12,020 current monthly income figure. The $1,831 figure consists of: $633 for
taxes; $37 for HOA dues; $588 for “husband’s mortgage payment;” and $573 for student
loans. The debtor later clarified that the $588 figure is the difference between the husband’s
monthly mortgage payment and the IRS housing standard (as shown on line 20B of the
means test form).
20.
In this case, amounts the debtor’s husband pays for the couple’s residence are paid on
a regular basis for the household expenses of the debtor and her dependents. Accordingly,
it is improper to deducted these amounts on line 17 of the means test form.
On line 42, the debtor calculated that the average monthly payment on the loan
secured by the Chevrolet Suburban is $320.67.
28.
On line 23, the debtor calculated and deducted the difference between the IRS
standard of $496 and the debtor’s average monthly payment of $320.67: $175.33.
29.
Line 22A directs the debtor to indicate the number of vehicles for which she pays the
operating expenses or for which the operating expense are included as a contribution to her
household expenses on line 8 of the means test. The debtor checked the box indicating she
pays operating for two or more vehicles.
30.
The applicable vehicle operating expense for two or more vehicles is $468.
31.
The debtor deducted $912 on line 22A of her means test form.
32.
When the improper deductions on lines 17 and 22A are eliminated from the debtor’s
means test form, the form shows the presumption of abuse arises
5The United States Trustee continues to investigate the propriety of other items on the
debtor’s means test form and may amend this motion to include those items.

[IamOld]

Good grief, so sorry to hear this!!! First, get the lawyer on the phone - not paralegal the atty - yell if need be!

What do they mean by "double-dipping?" Atty didn't fill out form correctly????

And, you may really want to find out what the 13 payment would be...maybe it would be manageable or even less!

Well here is an ugly update. After providing more documentation to the US Trustee. (another check stub, bank statement and more proof of tithing) I got a letter stating it has determined that the debtor's case is presumed to be abuse under 11 USC 707 (b)(2). I read the information posted under pacer and it says that there a couple things on the means test were double dipping. e.g mortgage and car expenses. Kinda angry because it looks like my lawyer was aware of this on the 15th and today it the 18th and I haven't even heard from him. Have a call into his office now. Scared to be put in a 13 because the payment will probably be high and scared to let the case be dismissed because I was being garnished prior to filing. (1200 a month) Just sick right now!!!! WHAT NOW???

[kphipps34]

Well here is an ugly update. After providing more documentation to the US Trustee. (another check stub, bank statement and more proof of tithing) I got a letter stating it has determined that the debtor's case is presumed to be abuse under 11 USC 707 (b)(2). I read the information posted under pacer and it says that there a couple things on the means test were double dipping. e.g mortgage and car expenses. Kinda angry because it looks like my lawyer was aware of this on the 15th and today it the 18th and I haven't even heard from him. Have a call into his office now. Scared to be put in a 13 because the payment will probably be high and scared to let the case be dismissed because I was being garnished prior to filing. (1200 a month) Just sick right now!!!! WHAT NOW???

[justbroke]

Update. The lawyers office says I have to submit my parents social security monthly income and their expenses. I didn't get to talk to the lawyer but the question is how can the trustee ask for that when social security income is exempt income?

This is not a question about whether the Trustee being allowed to ask for anything. There are limits to what they can ask for, but you just give it to them anyhow.

First, your parents social security income IS income if your parents pay any of your expense. Remember, that the definition of CMI (current monthly income) is income received from all sources, exclusive of SSA benefits. You don't personally receive SSA benefits, so any money that your parents give you or pay towards the household expenses, including food, is an offset to you since it's "regular" and used for support.

This is why I say that you have to just defend anything should the UST decide to file an 11 USC 707(b)(2) or (b)(3) motion to dismiss.

sunshinepa is right on the money (pun intended). The UST is looking to what extent your parents are contributing to the upkeep of the household. How many did you claim as dependents? Since you claimed your parents, and you claim that they feed themselves and provide all their own necessities, then this is an offset that the UST may want to explore. If I'm reading the UST's actions correctly, this is exactly what they are looking at.

justbroke's study guide: Garnishment of SSA is prohibited by other sections of the United States Code. The amendments to the Bankruptcy Act in 1995 (BAPCPA) only clarified that SSA income was not subject to the Bankruptcy Code by excluding SSA income from the definition of "current monthly income". The problem, in this particular case, is that it is not the debtor that is receiving SSA income. So, while the parent's SSA income is protected, the offset of the parent's contribution to the household is "income" for purposes of the debtor. Otherwise, anytime an SSA recipient spent money then the person receiving it could claim that it's an SSA benefit and it would be protected from garnishment. The law just does not work that way.

[sunshinepa]

Update. The lawyers office says I have to submit my parents social security monthly income and their expenses. I didn't get to talk to the lawyer but the question is how can the trustee ask for that when social security income is exempt income?

The trustee can ask for anything he wants, you must provide it. He is looking to see if you parents have any income left over would be my guess. If they do, he probably thinks they may be giving you some of that. Just provide what he wants so things can proceed. Let your attorney do the worrying, it's why you pay him.

Good luck.

[catleg]

It could be that the UST simply hasn't had time to review the case and yet is "interested" in doing do, thus the mysterious statement.