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Contractually obligated to monster mortgage but divorced and no longer living there pass the means test or not?
Supplemental research on last inquiry/post; here is the section of 11 U.S.C. 707 that is controlling -- which lists the words "debtor's primary residence" or (note the disjunctive)..."other property necessary for the....debtor's dependents" His dependents live there, at least for now. So it's not his primary residence, and the question is whether it is necessary for this dependents. They live there for now and who knows how much longer... then again, do they need a 5,500 sq. foot mansion?
(iii) The debtor's average monthly payments on account of secured debts shall be calculated as the sum of-
(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition; and
(II) any additional payments to secured creditors necessary for the debtor, in filing a plan under chapter 13 of this title, to maintain possession of the debtor's primary residence, motor vehicle, or other property necessary for the support of the debtor and the debtor's dependents, that serves as collateral for secured debts;
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FACTS: Debtor is divorced and the house where his ex-wife and 2 kids lives has been in foreclosure for 2 years. The mortgage is about $8,000/month, and is the only thing allowing this high income debtor ($16,000 month) to pass the means test. Someday they'll lose the house, but for now he is "contractually obligated" on the loans.
ISSUE: Can he use the home where he does not live for the means test? I know he may not pass the "totality of the circumstances" test under 11 U.S.C. 707, but that's another issue.
Steve
Law Offices of Steven B. Lever
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