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opposing 707(b) motions
Unless the percentage is actually 0, I don't think this argument will work. The point that the trustee is making is that there is surplus income of some amount. The argument that the plan will only pay a small percentage will be turned around by the trustee as evidence of how bad the debtor is, i.e., "It's only x% because the debtor spent so much at Neimans."
Best argument is to attack the trustee's assessment of the "excessive" expenses--need to prove that the expenses are actually reasonable and necessary, and that there is no surplus whatsoever.
"Charles Shamash, Esq." wrote:
They are incorrect about the percentage that can be paid back. In the opposition, other than arguing the expenses issues, do a plan and you may soon discover that the percentage to unsecured is a lot less. Remember there are trustee fees and often debtors have an undersecured vehicle and/or taxes, as such the percentage will in all probability be diminimus. And, dare I forget attorneys fees too, that must also be put through the plan.
Good Luck
Charles Shamash, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Phone: (323) 852-1600 X 101
Facsimile: (323) 852-9009
Sent: Wednesday, January 12, 2005 10:26 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] opposing 707(b) motions
Charles Daff - OC case
vicki temkin wrote:
wayne, who's the trustee?
thanks, vicki
waynewilhelmlaw wrote:
Does anyone have experience in opposing 707(b) motions brought by the
trustee and/or a sample opposition to such motion. In my client's case,
trustee questioned certain expenses and according to her calculations on
reduced expenses, determined that debtor's monthly surplus would be $286
per month and that over 36 months, debtor could repay a whopping 18% of the
$54.411 schedule F debt. Any input would be appreciated.
Wayne Wilhelm
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Unless the percentage is actually 0, I don't think this argument will work. The point that the trustee is making is that there is surplus income of some amount. The argument that the plan will only pay a small percentage will be turned around by the trustee as evidence of how bad the debtor is, i.e., "It's only x% because the debtor spent so much at Neimans."
Best argument is to attack the trustee's assessment of the "excessive" expenses--need to prove that the expenses are actually reasonable and necessary, and that there is no surplus whatsoever."Charles Shamash, Esq." <CS@locs.com> wrote:
The post was migrated from Yahoo.
Here's some law for your consideration:
The statutory requirement of Code Section 707(b) that, "There shall be a
presumption in favor of granting the relief requested by the debtor." "The
Court should give the benefit of any doubt to the debtor and dismiss a case
only when a substantial abuse is clearly present." In re Kelly, 841 F.2d
908, 917 (9th Cir. 1988). The burden of persuasion under Section 707(b) is
on the United States Trustee as movant. In re Wilkins, 731 F.2d 462 (7th
Cir. 1984). In light of this presumption, solvency alone is not a
sufficient basis for a finding of substantial abuse; the "total picture"
must be abusive. In re Green, 934 F.2d 568, 572-73 (4th Cir. 1991). The U.S.
Trustee bears the burden of overcoming the presumption by proving that the
Chapter 7 filing should be dismissed under Section 707(b) because it is
abusive and that the level of abuse is substantial. In re Farrell, 150 B.R.
116 (Bankr.D.N.J. 1992).
Chekian Law Office
Michael Chekian, Esq.
11400 W. Olympic Blvd. #200
Los Angeles, CA 90064
(310) 390-5529 (Tel.)
(310) 445-8879 (Fax)
mike@cheklaw.com (e-mail)
cheklaw.com (web site)
Sent: Tuesday, January 11, 2005 4:02 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] opposing 707(b) motions
Does anyone have experience in opposing 707(b) motions brought by the
trustee and/or a sample opposition to such motion. In my client's case,
trustee questioned certain expenses and according to her calculations on
reduced expenses, determined that debtor's monthly surplus would be $286
per month and that over 36 months, debtor could repay a whopping 18% of the$54.411 schedule F debt. Any input would be appreciated.
Wayne Wilhelm
_____
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The post was migrated from Yahoo.
They are incorrect about the percentage that can be paid back. In the
opposition, other than arguing the expenses issues, do a plan and you may
soon discover that the percentage to unsecured is a lot less. Remember
there are trustee fees and often debtors have an undersecured vehicle and/or
taxes, as such the percentage will in all probability be diminimus. And,
dare I forget attorneys fees too, that must also be put through the plan.
Good Luck
Charles Shamash, Esq.
Caceres & Shamash, LLP
8383 Wilshire Boulevard, Suite 1010
Beverly Hills, CA 90211-2409
Phone: (323) 852-1600 X 101
Facsimile: (323) 852-9009
Sent: Wednesday, January 12, 2005 10:26 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] opposing 707(b) motions
Charles Daff - OC case
vicki temkin wrote:
wayne, who's the trustee?
thanks, vicki
waynewilhelmlaw wrote:
Does anyone have experience in opposing 707(b) motions brought by the
trustee and/or a sample opposition to such motion. In my client's case,
trustee questioned certain expenses and according to her calculations on
reduced expenses, determined that debtor's monthly surplus would be $286
per month and that over 36 months, debtor could repay a whopping 18% of the$54.411 schedule F debt. Any input would be appreciated.
Wayne Wilhelm
_____
Yahoo! Groups Links
* To visit your group on the web, go to:
http://groups.yahoo.com/group/cdcbaa/
* To unsubscribe from this group, send an email to:
cdcbaa-unsubscribe@yahoogroups.com
The post was migrated from Yahoo.
Hey -- it all makes sense. Louis Freeh, the former FBI Director, is now
general counsel to MBNA. Way to connect the dots Dennis.
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, CA 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Hey -- it all makes sense. Louis Freeh, the former FBI Director, is now
general counsel to MBNA. Way to connect the dots Dennis.
Law Office
of Eric Alan Mitnick21515 Hawthorne Boulevard, Ste. 1080Torrance, CA
90503(310) 792-5864; 792-5866
The post was migrated from Yahoo.
Charles Daff - OC case
vicki temkin wrote:wayne, who's the trustee?
thanks, vicki
waynewilhelmlaw wrote:
Does anyone have experience in opposing 707(b) motions brought by the
trustee and/or a sample opposition to such motion. In my client's case,
trustee questioned certain expenses and according to her calculations on
reduced expenses, determined that debtor's monthly surplus would be $286
per month and that over 36 months, debtor could repay a whopping 18% of the
$54.411 schedule F debt. Any input would be appreciated.
Wayne Wilhelm
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Charles Daff - OC casevicki temkin <Vtemkin@yahoo.com> wrote:
wayne, who's the trustee?
thanks, vickiwaynewilhelmlaw <waynewilhelmlaw@yahoo.com> wrote:
Does anyone have experience in opposing 707(b) motions brought by the trustee and/or a sample opposition to such motion. In my client's case, trustee questioned certain expenses and according to her calculations on reduced expenses, determined that debtor's monthly surplus would be $286 per month and that over 36 months, debtor could repay a whopping 18% of the $54.411 schedule F debt. Any input would be appreciated.Wayne Wilhelm
The post was migrated from Yahoo.
If you're in front of Judge Tighe, good luck. I just opposed a similar
motion by the UST which was granted. Tighe allowed 30 days to file a motion to
convert. The scuttlebutt is that the UST is going to bring these motion more
regularly. Debtor has to argue either the necessity of consumer debt (e.g..
paid for medical expenses, etc. . . ) or that discharge would not be a
substantial abuse (i.e.. why this isn't BK fraud).
If you're in front of Judge Tighe, good luck. I
just opposed a similar motion by the UST which was granted. Tighe
allowed 30 days to file a motion to convert. The scuttlebutt is that the
UST is going to bring these motion more regularly. Debtor has to argue
either the necessity of consumer debt (e.g.. paid for medical expenses, etc. . .
) or that discharge would not be a substantial abuse (i.e.. why this isn't
BK fraud).
The post was migrated from Yahoo.
wayne, who's the trustee?
thanks, vicki
waynewilhelmlaw wrote:
Does anyone have experience in opposing 707(b) motions brought by the
trustee and/or a sample opposition to such motion. In my client's case,
trustee questioned certain expenses and according to her calculations on
reduced expenses, determined that debtor's monthly surplus would be $286
per month and that over 36 months, debtor could repay a whopping 18% of the
$54.411 schedule F debt. Any input would be appreciated.
Wayne Wilhelm
Yahoo! Groups Links
To visit your group on the web, go to:
http://groups.yahoo.com/group/cdcbaa/
To unsubscribe from this group, send an email to:
cdcbaa-unsubscribe@yahoogroups.com
Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service.
wayne, who's the trustee?
thanks, vickiwaynewilhelmlaw <waynewilhelmlaw@yahoo.com> wrote:
Does anyone have experience in opposing 707(b) motions brought by the trustee and/or a sample opposition to such motion. In my client's case, trustee questioned certain expenses and according to her calculations on reduced expenses, determined that debtor's monthly surplus would be $286 per month and that over 36 months, debtor could repay a whopping 18% of the $54.411 schedule F debt. Any input would be appreciated.Wayne Wilhelm
The post was migrated from Yahoo.
Wayne:
Havn't had the pleasure of the UST actually filing a
motion in one of my cases yet, so I don't have a ready
form, but you should know the bill which has been
before congress for the last eight years is based upon
attacking the debtor's budget and finding $166.00 per
month for five years, which will generate a whopping
$10,000 for creditors.
You will have to attack the premise of the motion,
that the expenses are unnecessary, the $18,000
dividend is well above the standard being pushed in
congress.
This will require some substantiation of the expenses,
their necessity, and the inapplicability of the
standard expenses being proposed by the UST.
Lots of ground work, sorry.
Again, one has to wonder why the US government is
working for MBNA.
dennis
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The post was migrated from Yahoo.
Does anyone have experience in opposing 707(b) motions brought by the
trustee and/or a sample opposition to such motion. In my client's case,
trustee questioned certain expenses and according to her calculations on
reduced expenses, determined that debtor's monthly surplus would be $286
per month and that over 36 months, debtor could repay a whopping 18% of the
$54.411 schedule F debt. Any input would be appreciated.
Wayne Wilhelm
The post was migrated from Yahoo.