Presumption of Abuse

[TRfromillino]

Oh my gosh, girl, what a kick in the rear! I'm so sorry!

[Floridagail]

Me too, It is laughable , To put him thru all this and on 60th day say, it cannot go thru. It is mumble jumble, trying to understand the wording on the motion. At one point the Trustee says our net monthly income is 6450.00 , which is incorrect, actually is the gross income. Then talks about some deposits in checking account. It sound like to me they think we are hiding money. Which we are not.

Oh well, Our plan B is to just retire in January and let the creditors go at it.

[paulsk]

I hope you sort everything out with the UST, it is not in the best interest for anyone when they file a motion to dismiss on the last day.

[jst4f]

Based on what you have said regarding the accuracy of the US TT filing, i strongly suggest that you contact you attorney and fight it.

[pamkev]

I'm so sorry to hear this

[Floridagail]

Just talked with the attorney a few minutes ago. He is setting up appointment to discuss fighting the motion. He feels we might have a chance of winning the discharge. He, however has sold his practice last month to law firm he is semi retiring. So he wants Hubby to meet with the new attorney. Of course it will cost 1500.00 more. So we will see.

[LadyInTheRed]

Just talked with the attorney a few minutes ago. He is setting up appointment to discuss fighting the motion. He feels we might have a chance of winning the discharge. He, however has sold his practice last month to law firm he is semi retiring. So he wants Hubby to meet with the new attorney. Of course it will cost 1500.00 more. So we will see.

Yep, it cost money to fight a motion to dismiss. Unless your fee agreement says otherwise, you would have had to pay your attorney addittional fees even if he hadn't retired. If your agreement does cover opposing a motion to dismiss, then your attorney should honor that or make sure the new firm does. I know $1500 is a lot of money, but think of the amount of debt that will be discharged if you are successful. If the U.S. Trustee is relying on inaccurate information as a basis for his motion, opposing the motion sounds like a no-brainer.

ETA: Before you sign any new fee agreeement or pay an additional fee, make sure you meet with the attorney from the new firm that will be handling your case. You are free to choose another attorney if you are not comfortable with the new firm. But, find the new attorney before you turn them down.

[Floridagail]

In case anyone is following this, Hubby went to see the new attorney ( who our attorney went to work for) Our old attorney was late of course, The new attorney said no point in fighting the motion to dismiss, the Trustee will win due to the bankruptcy laws. The means test shows -1700 disposable income. This includes the errearages of the mortgage. Even with this the Trustee feels We can afford to pay a chptr 13 payment. As Florida allows these on means test, they can still object that we cannot afford to keep house with the balance owed. So letting the house go would give us a disposable income.

So we are back to square one. The new attorney asked the old attorney for our file, and looking it over discovered he has given him a different persons file. what a idiot. HE knows this old attorney is incompetent. He should of told us to file 13 to begin with, instead of taking our 1800 and letting it flop, or at least warned us.

I have great respect for attorneys I have used in past, This was just a total failure.

Now Hubby is not sure what to do, They are suppose to call him with what a projected 13 payment would be. He said Hubby could convert to 13 and then in January retire and then convert to 7 . Or let the case be dismissed now. If any cc come after him ( 3 yrs since paid any ) We could hire him to defend the cc company in court. then when retire after 6mos file new chpt 7 . Not sure what to do.

[alorth]

As one who has been through this whole circus (read my sig), I wish you luck Floridagail.

We were also over-median filers and pursued a 7 on atty advice that turned out to be somewhat faulty, thus we were forced to convert to 13.

We also had a rather high house payment, but are still in the house.

Truth be told, I wish we would have just let the house go to foreclosure back when they were happening all the time in '07 and '08, and then maybe we could have avoided BK.

[Floridagail]

Thanks, It has been a real roller coaster ride for Hubby, the stress is bad for both of us. We do want to let the house go into forclosure by the end of the year. This was the worse mistake we made buying this house in 2005. We wanted to sell in 2 yrs and retire.

He could of retired in January and collected SS, but the attorney said no, file chpt 7 and keep working. Now He has made too much this year to collect SS benefits. So we are stuck trying to make it until January working to draw SS and reduce hours . ( By June then could pass means test for 7.) SS rules for drawing are wacky. Your year you turn 65 you can only Make 14K and draw SS. Next year He could make 40K and still collect because it is his 66 year.

[Floridagail]

No word back from the new attorney (since meeting was may 22) he was suppose to get back with Hubby to see if he could get a decent chptr 13 payment figured out by running the numbers.

We do not plan to file 13 due to reason his job is not secure at the moment ,the new company took over June 1, He will be lucky to have his job until January.

Today received notice of hearing July 15 for motion to dismiss. We assumed the Trustee would just dismiss the chptr 7 , now they want a hearing. We do not want to pay a attorney to attend this. Will they automatically just dismiss?

[LadyInTheRed]

No word back from the new attorney (since meeting was may 22) he was suppose to get back with Hubby to see if he could get a decent chptr 13 payment figured out by running the numbers.

We do not plan to file 13 due to reason his job is not secure at the moment ,the new company took over June 1, He will be lucky to have his job until January.

Today received notice of hearing July 15 for motion to dismiss. We assumed the Trustee would just dismiss the chptr 7 , now they want a hearing. We do not want to pay a attorney to attend this. Will they automatically just dismiss?

The Trustee does not have the power to dismiss. They have to petition for dismissal so that the judge can determine whether it is appropriate to dismiss. If you don't oppose the motion, the judge will most likely dismiss.

[Floridagail]

Update.
The case was dismissed with Hubby consent yesterday. So we will see how many creditors will come after him b4 he retires in Jan. The attorney wanted to file a 13, ( which he would get most of the payment for 6mos until retirement) He felt waste of time to fight, We were able to stay in the house a little longer , so I guess it was not a wasted effort totally. We found a new place and paid cash. He will retire in January. After that a new chaptr 7 may or may not be in the future.

[tobee43]

what an ordeal you have been going thru . your story could have been close to us, but we waited until we were no longer working before we filed. my dh asked to be laid off after the company was taken over, so he was, applied for ei and ss, got them both and then we waited another almost 2 years and file. they kept trying to push and push us into a 13! i think it's the big thing here in florida, after all the trustees and attys get more money from us. what a shame! greedy people let their greed get in their way of being fair i do believe!

i hope you future brings much happiness for you

[btbeme]

FLoridagail, I too am sorry for your hard journey. We have been cheering for you.

A couple big takeaways on this case. First, filing a CH 7 while over median income is a tough road for just about everyone. If the Ch 7 actually flies, it is usually not without a good deal of additional pain. In most cases, an over median Ch 7 simply does not work out in the end. Part two of that lesson involves the attorney, whose job is to shepherd you through a successful filing, and that job includes being brutally honest about the chances of fitting a square peg through a round hole. Unfortunately, as BK filings diminish, I see attorneys being far to anxious to assure people of the nearly impossible simply to get them in the door and on the hook for legal fees.

Second, filing a Ch 7 successfully can often boil down to the correct timing. Again, it is partially the attorney's job to advise and partially your job to let the attorney know of future plans (such as job changes and retirement) so the right combination can be dialed. Again, this usually means additional pain (waiting can be filled with creditor calls and lawsuits) but the end result is usually the avoidance of this type of situation...spending time and money on a wasted filing, only to have to file again, and likely hitting every bump along the way.

Over median filings often have a bunch of small loose threads that kinda hang out all over the file, a few dollars here and there in exemptions or adjustments that all add up to being able to limbo under the Means Test bar. Unfortunately, the Trustee has a great deal of power (as well as case law and a prime directive to do so) to pull on any of those threads and unravel the whole thing. And now that filings have slowed down, they have more time to look more closely at the files they do have.

It all adds up to some really tough sledding when trying to file over median income.