Complaint to Determine Dischargeability and for Willful Violation

[tigergem]

See, I'm not sure I have a real issue of (eventual) dischargeability, (and probably not) but I'd like to eliminate all doubt. Not sure that is a good enough reason to use an AP now, or if I should just make a motion and cross that other bridge when I get to it.

[AlbanyMan]

Because there was a genuine question of dischargeability and I technically wanted a declaratory ruling. I challenged the creditor on that part. Since dischargeability is done by complaint, that's the primary reason I filed a complaint.

Most Stay Violations can be done by motion, but doing it by Adversary Proceeding (AP)/Complaint seems to be much more powerful. This may also be influenced by local rule. Since I am Pro Se, the costs associated with an AP came down to my personal time (vacations from work, many hours at night researching), and costs for service of process. If it was done through an attorney at $200/hr or more, this could have been prohibitive.

NICE!! ok.

[justbroke]

I have a question, why did you chose an adversary over a motion?

Because there was a genuine question of dischargeability and I technically wanted a declaratory ruling. I challenged the creditor on that part. Since dischargeability is done by complaint, that's the primary reason I filed a complaint.

Most Stay Violations can be done by motion, but doing it by Adversary Proceeding (AP)/Complaint seems to be much more powerful. This may also be influenced by local rule. Since I am Pro Se, the costs associated with an AP came down to my personal time (vacations from work, many hours at night researching), and costs for service of process. If it was done through an attorney at $200/hr or more, this could have been prohibitive.

[AlbanyMan]

I think this only works when it's a clear and documented issue. I wouldn't go the AP/complaint route unless I was positive. I actually thought it would go to trial!

I have a question, why did you chose an adversary over a motion?

[justbroke]

In Re Vote is at http://www.ca8.uscourts.gov/opndir/01/04/006115P.pdf. Remember that In Re Vote was a Chapter 7, which is different than a Chapter 13. Also in Vote, the debtor was a farmer and the payment was from farm assistance. The case and the ruling make total sense to me. I don't see how the Trustee gets rights to farm subsidies in a Chapter 7... post petition!

[tigergem]

You need to read that case. It was specific to "right to payment" regarding an avoided lien.

In re Vote? I'm only guessing, because abiworld won't tell me. I'm not a member. I haven't read all of In re Vote yet but it seems right, from the way it is cited in google scholar.

[justbroke]

You need to read that case. It was specific to "right to payment" regarding an avoided lien.

[tigergem]

I'd like to read this case, but will have to hunt & peck for it later.

Trustee has no Claim on Right to Payment That Arose Post-petition From the January, 2002 issue.

http://www.abiworld.org/AM/Template.cfm?Section=Home&CONTENTID=31665&TEMPLATE=/CM/ContentDisplay.cfm

[justbroke]

Your Trustee does that to protect him/herself. They'd rather it all be by the book, so that you're not filing motions against them later, for doing something wrong. They'd rather it go before the Judge. It's a CYA thing.

[tigergem]

Trustees have discretion on how "extra" money that shows up is used. Prime example: if your Plan requires you to surrender tax overpayments (refunds), that is money that was not already calculated in the plan. I call this "extra" money.

In almost all jurisdictions, the Trustee allows the debtor to send the refund check to the Trustee with a note/letter explaining how the debtor would like to keep all or part of the refund to pay for things. These things are usually medical related, a new car, or even a new roof for the house. Trustees view these requests favorably when they make sense.

I wouldn't count on my Trustee being that easy. He makes me do every single little request by motion. He doesn't do that to the attorneys. Only to me. I had half a mind to ask him if he was testing my skills. Or testing how bad I really want something.

[justbroke]

Well anyway, this case gives me hope for being able to pay for my dental work. Surely a medical necessity would be viewed more favorably than a car? (I would hope.)

Trustees have discretion on how "extra" money that shows up is used. Prime example: if your Plan requires you to surrender tax overpayments (refunds), that is money that was not already calculated in the plan. I call this "extra" money.

In almost all jurisdictions, the Trustee allows the debtor to send the refund check to the Trustee with a note/letter explaining how the debtor would like to keep all or part of the refund to pay for things. These things are usually medical related, a new car, or even a new roof for the house. Trustees view these requests favorably when they make sense.

[tigergem]

Yes, but the Trustee is entitled to pursue a modification of the Plan, and the Judge quite clearly stated that the individual debtor must notify the Trustee and tell them what they want to do with the funds. In this specific case, the Trustee only complained about the Attorney fees.

Since the debtor was buying a car, that's probably why the Trustee didn't care about the funds anyhow. The Trustee apparently didn't seek a modification of the Plan.

Interesting case, but the Judge danced around the whole all disposable income part.

Since the debtor was buying a car? Just curious... what difference does that make? I mean that they were specifically buying a car, and not - oh - say - 6 extra large barrels of Crisco oil? It's a depreciating asset. Or does he maybe consider it a necessity? He doesn't want the car? I don't get it.

Well anyway, this case gives me hope for being able to pay for my dental work. Surely a medical necessity would be viewed more favorably than a car? (I would hope.)

I get that there is a difference between future wages (which my Trustee made me specify in my plan) and a future possible settlement of this nature (which he did not). But future income of any nature is something I reckon one has to be prepared to fight to try to keep in a 13, no matter which way you look at it.

[tigergem]

Oh, you're under the median. Sure, your plan should be 36 months anyhow unless YOU need more time to pay things like secured and priority debt.

Yes, I did need the full 60 months when I initially devised it. I just submitted a motion to modify that brings it down to 58, and slightly less per month. And depending upon how much of the excess the trustee lets me keep over the term of a 4 month contract, I think I can bring it down to 36 months after I start working.

[justbroke]

U. S. Bankruptcy Court for the District of Oregon, Case No. 08-34900-tmb13 November 13, 2009

Yes, but the Trustee is entitled to pursue a modification of the Plan, and the Judge quite clearly stated that the individual debtor must notify the Trustee and tell them what they want to do with the funds. In this specific case, the Trustee only complained about the Attorney fees.

Since the debtor was buying a car, that's probably why the Trustee didn't care about the funds anyhow. The Trustee apparently didn't seek a modification of the Plan.

Interesting case, but the Judge danced around the whole all disposable income part.

[justbroke]

UNDER median! lol! UNDER!

Oh, you're under the median. Sure, your plan should be 36 months anyhow unless YOU need more time to pay things like secured and priority debt.