Announcement

Collapse

Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

Welcome to the Bankruptcy Forum. Bankruptcy (BK) Forum is known as BKForum.com and will be referred to as BKF hereinafter. In order to ensure a long term success of our vibrant community, we have established certain rules and guidelines to which everyone must adhere to. Please take your time to carefully read our rules, before you start to participate in the community.

Things you agree to do:
BKFORUM.com (BKF) users agree to use the search function before starting a new thread. This prevents duplicate discussions and allows for better organized topics.

All BKF users agree to read the sticky posts which may be available at the top of a forum page. These Sticky posts often contain valuable information. They may also outline more rules and guidelines specific for that particular forum, stickies are put in place by that forums moderator(s) or admin(s).

Things you agree not to do:

All BKF users agree not to call people names or write a post simply to make a personal attack, or get a negative reaction; this behavior is not allowed on our forum. The use of derogatory language aimed at anyone will be severely dealt with. There is no need to agree with each other, or to even like each other. However, by signing onto BKForum.com you agree to treat each member and guest with the respect they deserve. No threats or personal attacks will be allowed.

All BKF users agree not to discuss, engage, or encourage any behavior or activity which violates the law. Discussion of drugs, violence, murder, theft, vandalism, fraud or any other issue which could be used to help individuals break the law is strictly forbidden.

All BKF users agree not to "bump" old threads, unless there is a specific benefit to the community by doing so. But in most cases, please don't post in very old threads, instead start new threads.

All BKF users agree not to attempt/use another members account. It is against BKF rules to use any account other than your own. Impersonating another member will result in an immediate ban. It is also against the rules to open more than one account in your own name without permission from a moderator or administrator. If you have been banned for any reason, it is against the rules to open another account. If you were banned temporarily and you are caught using another account you will be banned permanently. Choosing a moniker which is similar in either sound or spelling as a moderator or administrator is strictly forbidden.

All BKF users agree not to private message any moderator, admin, or other member with questions related to their personal circumstances (Questions about the forum or issues with the forum are ok). This forum only works when members share their experience and insights with everyone.

Things you agree not to post:
All BKF users agree not to post any derogatory/racist/or sexist remarks. This includes attachments, links and all information contained within posts, signatures, and avatars, failure to comply with this rule will result in a permanent ban.

All BKF users agree not to post any copyrighted or trademarked information without the express written permission of the owner(s) / proper citation of source.

All BKF users agree not to post any real names, addresses, telephone numbers, email addresses, social security numbers, or any other personal details (their own or other people's).

All BKF users agree not to post links, pictures, attachments, videos, or the like of pornographic content, objectionable material or extreme violence, whether cartoon or real.

All BKF users agree not to use BKF for advertising purposes without a written contract between yourself/company/agent and the administration of BKF. Blatant advertising will result in a ban.

All BKF users agree not to spam the forums. Spam includes but is not limited to posting erroneous, non-relevant-useless, off-topic, or meaningless posts. Spam may also include posts which contain no text, or large areas of blank space between lines. Simply posting emoticons without text is considered spam. BKF is the largest bankruptcy message board and all the content is intended to help other users. Please help us improve the quality of our forum by making sure that your posts are well-worded, spell checked, grammatically correct and syntaxed.

Regarding actions of moderators and administrators:

The forum is no place to air out your opinion or be judgmental of our staff and its capabilities.

All BKF users agree not to abuse or mistreat moderators or administrators. It is against BKF rules to post any information regarding bans or any other action taken by a member of the moderating or administrative team. If you wish to discuss bans or warnings please do so via PM. To place a complaint against a moderator, send a PM to a super moderator. All Moderators are equal, any decision made by a moderator must be adhered to. If a moderator tells you something you do not like, do not go to another moderator looking for a different answer. If you are caught doing this you will be banned. The moderators work as a team and respect the decisions made by their peers and will help enforce them unless an administrator tells them differently.
If you have an issue with how the forum is run, then notify one of our administrator and we will look into the situation. We have in the past and still do appreciate any input that you offer this forum. But critical input and/or judgmental postings towards the staff will result in you getting banned.


Should you find a thread offensive or out of line, then notify a Mod in a PM so they can evaluate the situation and do the action deemed necessary.

All moderators do have active "other" lives outside of the forum and help moderate this forum in their spare time throughout the days and weeks.

If you have a problem with a member or Mod follow the proper channels of reporting it.

BKF reserves the right to delete any posts which contain anti-BKF comments or discussion. Any bashing of moderators or administrators, or any of their discussion or actions will also be deleted, and the responsible posting party(s) will be banned. Any public anti-BKF advertising, communication, or posts on another forum will result in permanent bans as well.

All warnings and bans are decided by individual moderators and administrators. Warnings are preferable to bans however, for serious offenses and repeat abusers bans will go into effect. The length of the bans can vary from several hours to permanent.

All messages posted or sent including through PM are the property of BKforum.com.

All BKF users agree not to advertiser on the forum (Niether by posting, private messaging or using your signature). If you are a company/attorney/legal adviser wishing to advertise on the site or sell a product, you must contact the head administrator and inquire about our advertising packages.

All bankruptcy related opinions expressed on BKForum.com are those of their authors and not necessarily of BKF, its staff or representatives.

You agree not to copy any material/post/content from BKF without written permission from our head administrator .

By posting on this forum you agree to these terms and conditions, including any punishment deemed appropriate by moderators or administrators in the event of an offense.

Administrators/Moderators can change these rules at any time without prior notice.
See more
See less

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

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

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

    Here is my pacer schedule after my 341 meeting

    -
    Filed: 06/06/2011
    Entered: 06/13/2011
    Docket Text Meeting of Creditors Held and Concluded
    Filed & Entered: 06/08/2011
    Docket Text Order on Motion to Avoid Lien
    Filed: 06/10/2011
    Entered: 06/11/2011
    Docket Text Certificate of Mailing by BNC of Order on Motion to Avoid Lien

    Filed & Entered: 06/13/2011
    Docket Text Chapter 7 Trustee's Report of No Distribution - No Funds
    Filed & Entered: 06/14/2011
    Docket Text Order that this case is not subject to dismissal under 521(i)(1)
    Filed & Entered: 06/15/2011
    [B]Docket Text U.S. Trustee's Statement of Inability to Determine Presumed Abuse

    Anyone have any idea what the Statement of Inability to Determine Presumed Abuse means:
    Here is what the paper that is filed says:
    Clerk's Notice Re: United States Trustee's Statement of Insufficient Information
    Necessary to Make Presumption of Abuse Determination
    You are hereby notified that:
    The United States Trustee has determined that the debtor has not filed nor transmitted all of the required means testing documents and that without these documents, the United States Trustee cannot make a determination as to whether debtor's case is presumed to be an abuse under 11U.S.C. § 707(b)(2).

  • kphipps34
    replied
    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.

    Leave a comment:


  • justbroke
    replied
    Originally posted by kphipps34 View Post
    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.

    Originally posted by kphipps34 View Post
    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).

    Leave a comment:


  • kphipps34
    replied
    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

    Leave a comment:


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

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

    Leave a comment:


  • kphipps34
    replied
    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

    Leave a comment:


  • justbroke
    replied
    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.

    Leave a comment:


  • kphipps34
    replied
    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????

    Leave a comment:


  • justbroke
    replied
    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.

    Leave a comment:


  • IamOld
    replied
    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...


    Originally posted by kphipps34 View Post
    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.

    Leave a comment:


  • kphipps34
    replied
    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.

    Leave a comment:


  • IamOld
    replied
    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!

    Originally posted by kphipps34 View Post
    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???

    Leave a comment:


  • kphipps34
    replied
    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???

    Leave a comment:


  • justbroke
    replied
    Originally posted by kphipps34 View Post
    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.

    Leave a comment:


  • sunshinepa
    replied
    Originally posted by kphipps34 View Post
    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.

    Leave a comment:

Unconfigured Ad Widget

Collapse
Working...
X