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Jdebtor on means test
Steve:
I agree that you only need contributed income.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On May 18, 2014, at 10:51 AM, "stephen burton stephenburtonlaw@yahoo.com [cdcbaa]" wrote:
>
> I have a variation of this scenario. Unmarried couple, not registered domestic partners. Three children all theirs. PC wants to file a bankruptcy for herself. She has no income of her own. She is a homemaker. The partner's is adamant about not shariing his income info. They may or may not be over median, but I cannot pull the necessary info out of him.
>
> Have debtor file and have her provide a declaration about the subborn partner and provide a written disclaimer to her prior to filing the case will be challenged and that it may not succeed? Or just pass on the case?
>
> Steve Burton
>
> On Thursday, October 7, 2010 2:39 AM, clifford_bordeaux wrote:
>
>
>
> I had a case like this. Debtors were above median, but maintaining two households. Divorce is planned, but not imminent. H&W were both liable on the mortgage. H was paying the mortgage for the house in which W lived and had his own separate household expenses. I attempted to file a joint case and claim special circumstances on the means test for H's separate household expenses. I received a call from the UST, in which it was suggested to me that a motion to dismiss would be forthcoming unless the clients consented to voluntary dismissal.
>
> However, it was also suggested to me that the presumption might not arise if filed as two separate cases. After discussing the merits of opposing a UST motion based on "special circumstances," vs. filing two new cases (hopefully two 7s, but possibly a 7 and a 13), clients elected to consent to dismissal and file separately.
>
> My plan is to file a new 7 for W (who is low income), claiming the mortgage payment as part of CMI and counting mortgage liability as an offsetting expense. I'm not sure yet if H will qualify for Chapter 7, but I plan to claim the mortgage expense in his case, since it is a secured debt for which he is contractually liable, along with his separate household expenses for the cost of his housing. I don't think this is double-counting because H's payment goes into W's CMI, so the net effect is that W is not claiming a mortgage expense and H is claiming mortgage expense and the cost of his rental housing.
>
> I think the analysis would be similar in the case of an unmarried couple living together. Seems like Partner #1 should count the full mortgage as an expense, BUT also count any contributions from Partner #2 as part of CMI (and vice versa).
>
> Incidentally, for unmarried couples, UST takes the position that if you count the partner as a household member, then 100% of partner's income must be included in CMI. I disagree with this analysis and I am fighting the UST's interpretation in a separate case (2:10-bk-28205-BB). Most of the cases in other districts seem to be on my side (most cases hold that even if the debtor claims someone as a household member using the "heads on beds" test, UST still has the burden to prove up actual contributions of the non-filing household member and that only actual contributions are includible).
>
> --- In cdcbaa@yahoogroups.com, larry@... wrote:
> >
> > As an aside, what do you do with H and W that are separated and maintaining 2 households? Do you file 2 separate means test along with a declaration explaining the circumstances? I'd like to know how others are handling such debtors.
> > Sent via BlackBerry by AT&T
> >
> > -----Original Message-----
> > Sender: cdcbaa@yahoogroups.com
> > Date: Wed, 6 Oct 2010 17:44:40
> > To:
> > Reply-To: cdcbaa@yahoogroups.com
> > Subject: Re: [cdcbaa] Jdebtor on means test
> >
> > The contribution from the co-title holder to the payments (and other
> > household expenses) must come into CMI.
> > Peter M. Lively, JD/MBA
> > Law Office of Peter M. Lively * Personal Financial Law Center I
> > 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> > Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> > A-Bankruptcy-Attorney.com
> > Personal Financial Law Center II - Costa Mesa, CA
> >
> >
> > THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
> > IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
> > AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
> > IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR> > DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
> > ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
> > PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US
> > IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
> >
> >
> >
> >
> >
> > ________________________________
> > To: cdcbaa@yahoogroups.com
> > Sent: Wed, October 6, 2010 5:39:01 PM
> > Subject: [cdcbaa] Jdebtor on means test
> >
> >
> > I have two similar fact scenarios on my desk involving unmarried joint debtors.
> > The first couple are registered domestic partners and the second couple are not
> > married, but could be. Each couple owns a home together and > > liable for their mortgage. The domestic partners have a lot of jointly owned
> > property, with joint obligations on mortgages and secured lenders on vehicles.
> > They will be appropriately listed on each others petition. The second couple
> > have one house together and are both on the 1st and second mortgage.
> >
> > Each individual needs to use the full amount of their joint mortgage secured
> > payment to pass the means test. Actually I don> > they are only responsible for 50% of the debt payment when they have joint
> > liability under 707(b)(2)(A)(iii)The debtor> > account of secured debts shall be calculated as the sum of> > amounts scheduled as contractually due to secured creditors . . . Therefore
> > they can each use the full secured payment on their means test in each of their
> > petitions, right?
> >
> > Am I missing anything?
> >
> >
> >
> > Larry Webb
> > State Bar of California 229344
> > Central District California
> > "A Debt Relief Agency"
> >
> > Larry@webbklaw. com
> > Law Offices of Larry Webb
> > 484 Mobil Ste 43
> >
> > P 805.987.1400
> > F 805.987.2866
> > C 805.750.2150
> >
> > Camarillo Ca 93010
> >
>
>
>
>
The post was migrated from Yahoo.
I have a variation of this scenario. Unmarried couple, not registered domestic partners. Three children all theirs. PC wants to file a bankruptcy for herself. She has no income of her own. She is a homemaker. The partner's is adamant about not shariing pull the necessary info out of him.
Have debtor file and have her provide a declaration about the subborn partner and provide a written disclaimer to her prior to filing the case will be challenged and that it may not succeed? Or just pass on the case?
Steve Burton
On Thursday, October 7, 2010 2:39 AM, clifford_bordeaux wrote:
I had a case like this. Debtors were above median, but maintaining two households. Divorce is planned, but not imminent. H&W were both liable on the mortgage. H was paying the mortgage for the house in which W lived and had his own separate household expenses. I attempted to file a joint case and claim special circumstances on the means test for H's separate household expenses. I received a call from the UST, in which it was suggested to me that a motion to dismiss would be forthcoming unless the clients consented to voluntary dismissal.
However, it was also suggested to me that the presumption might not arise if filed as two separate cases. After discussing the merits of opposing a UST motion based on "special circumstances," vs. filing two new cases (hopefully two 7s, but possibly a 7 and a 13), clients elected to consent to dismissal and file separately.
My plan is to file a new 7 for W (who is low income), claiming the mortgage payment as part of CMI and counting mortgage liability as an offsetting expense. I'm not sure yet if H will qualify for Chapter 7, but I plan to claim the mortgage expense in his case, since it is a secured debt for which he is contractually liable, along with his separate household expenses for the cost of his housing. I don't think this is double-counting because H's payment goes into W's CMI, so the net effect is that W is not claiming a mortgage expense and H is claiming mortgage expense and the cost of his rental housing.
I think the analysis would be similar in the case of an unmarried couple living together. Seems like Partner #1 should count the full mortgage as an expense, BUT also count any contributions from Partner #2 as part of CMI (and vice versa).
Incidentally, for unmarried couples, UST takes the position that if you count the partner as a household member, then 100% of partner's income must be included in CMI. I disagree with this analysis and I am fighting the UST's interpretation in a separate case (2:10-bk-28205-BB). Most of the cases in other districts seem to be on my side (most cases hold that even if the debtor claims someone as a household member using the "heads on beds" test, UST still has the burden to prove up actual contributions of the non-filing household member and that only actual contributions are includible).
>
> As an aside, what do you do with H and W that are separated and maintaining 2 households? Do you file 2 separate means test along with a declaration explaining the circumstances? I'd like to know how others are handling such debtors.
> Sent via BlackBerry by AT&T
>
> -----Original Message-----
> Sender: cdcbaa@yahoogroups.com
> Date: Wed, 6 Oct 2010 17:44:40
> To:
> Reply-To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Jdebtor on means test
>
> The contribution from the co-title holder to the payments(and other
> householdexpenses) must come into CMI.
> Peter M. Lively, JD/MBA
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> A-Bankruptcy-Attorney.com
> Personal Financial Law Center II - Costa Mesa, CA
>
>
> THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
> IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
> AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
> IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
> DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
> ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
> PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US
> IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
>
>
>
>
>
> ________________________________
> To: cdcbaa@yahoogroups.com
> Sent: Wed, October 6, 2010 5:39:01 PM
> Subject: [cdcbaa] Jdebtor on means test
>
>
> I have two similar fact scenarios on my desk involving unmarried joint debtors.
> The first couple are registered domestic partners and the second couple are not
> married, but could be. Each couple owns a home together and > liable for their mortgage. The domestic partners have a lot of jointly owned
> property, with joint obligations on mortgages and secured lenders on vehicles.
> They will be appropriately listed on each others petition. The second couple
> have one house together and are both on the 1st and second mortgage.
>
> Each individual needs to use the full amount of their joint mortgage secured
> payment to pass the means test. Actually I don> they are only responsible for 50% of the debt payment when they have joint
> liability under 707(b)(2)(A)(iii)The debtor> account of secured debts shall be calculated as the sum of" (I) the total of all
> amounts scheduled as contractually due to secured creditors . . .> they can each use the full secured payment on their means test in each of their
> petitions, right?
>
> Am I missing anything?
>
>
>
> Larry Webb
> State Bar of California 229344
> Central District California
> "A Debt Relief Agency"
>
> Larry@webbklaw. com
> Law Offices of Larry Webb
> 484 Mobil Ste 43
>
> P 805.987.1400
> F 805.987.2866
> C 805.750.2150
>
> Camarillo Ca 93010
>
The post was migrated from Yahoo.