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UST Motion to Dismiss Chapter 7 for Abuse

Posted: Thu May 15, 2014 5:08 pm
by Yahoo Bot

Voluntary 401k contributions are within the courts discretion to allow:
The Ninth Circuit has set forth factors a court should consider in
determining whether a debtors voluntary retirement contribution is a
reasonably necessary expense. Bankruptcy courts have discretion to
determine whether retirement contributions are a reasonably necessary
expenses for a particular debtor based on the facts of each individual
case. See *Craig v. Educational Credit Management Corporation* (In re
Craig), 579 F.3d 1040, 1046 (9th Cir. 2009). The Court in Craig continued,
describing factors for courts to consider, holding that:
In making this fact-intensive determination, courts should consider a
number of factors, including but not limited to: the debtors age, income,
overall budget, expected date of retirement, existing retirement savings,
and amount of contributions; the likelihood of stopping contributions will
jeopardize the debtors fresh start by forcing the debtor to make up lost
contributions after emerging from bankruptcy; and the needs of the debtordependents.
On Thu, May 15, 2014 at 3:19 PM, cliff@bordeauxlaw.com [cdcbaa] wrote:
>
>
> My input:
> 1. What did debtor say on Statement of Intentions? Are they trying to
> cure the arrearages? Contemplating a Chapter 13 after completion of the 7?
> Trying to get a loan mod? If their stated intention is to stay in the
> house (even if they are behind on payments), then they may draw some
> support from In Re Jensen (Judge Robles case from 2009--available on CACB
> website).
> 2. I think your debtor will lose on this point. Retirement account
> contributions are not allowed as means test deductions in Chapter 7 unless
> the contributions are mandated by the employer. Voluntary 401k
> contributions are not permitted.
> 3. You need a debtor declaration explaining why the expense is reasonably
> necessary.
> 4. I think your debtor will lose on this point.
> 5. See response to #1, above.
>
>
>
Christine A. Wilton, Esq.
Law Office of Christine A. Wilton
5011 Argosy Avenue, Suite 3
Huntington Beach, CA 92649
Office: 714-533-9210
Fax: 714-489-8150
Email: attorneychristine@gmail.com
Web: www.attorneychristine.com
Blog: www.losangelesbankruptcylawmonitor.com
***************************
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is intended solely for review by the intended recipient(s) and may contain
confidential and privileged information. Any unauthorized review, use,
disclosure, or distribution is prohibited. Review by anyone other than the
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PRIVILEGE or ATTORNEY WORK PRODUCT PROTECTION that may apply to this
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sender by return e-mail and destroy all copies of the original message.
Tax Advice Disclosure. Any tax information or written tax advice contained
in this email message, including attachments, is not intended to and cannot
be used by any taxpayer for the purpose of avoiding tax penalties that may
be imposed on the taxpayer. (The foregoing legend has been affixed pursuant
to U.S. Treasury Regulations governing tax practice.)
Voluntary 401k contributions are within the courts discretion to allow:
The
Ninth Circuit has set forth factors a court should consider in determining
whether a debtors voluntary retirement contribution is a reasonably necessary
expense. Bankruptcy courts have discretion to determine whether retirement
contributions are a reasonably necessary expenses for a particular debtor based
on the facts of each individual case. See Craig v. Educational Credit
Management Corporation (In re Craig), 579 F.3d 1040, 1046 (9th
Cir. 2009). The Court in Craig continued, describing factors for courts to
consider, holding that:
In making this fact-intensive
determination, courts should consider a number of factors, including but not
limited to: the debtors age, income, overall budget, expected date of
retirement, existing retirement savings, and amount of contributions; the
likelihood of stopping contributions will jeopardize the debtors fresh start
by forcing the debtor to make up lost contributions after emerging from
bankruptcy; and the needs of the debtors dependents.
On Thu, May 15, 2014 at 3:19 PM, cliff@bordeauxlaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
My input:1. What did debtor say on Statement of Intentions? Are they trying to cure the arrearages? Contemplating a Chapter 13 after completion of the 7? Trying to get a loan mod? nd on payments), then they may draw some support from In Re Jensen (Judge Robles case from 2009--available on CACB website).
2. I think your debtor will lose on this point. Retirement account contributions are not allowed as means test deductions in Chapter 7 unless the contributions are mandated by the employer. Voluntary 401k contributions are not permitted.
3. You need a debtor declaration explaining why the expense is reasonably necessary.4. I think your debtor will lose on this point.5. See response to #1, above.
-- Christine A. Wilton, Esq.Law Office of Christine A. Wilton5011 Argosy Avenue, Suite 3Huntington Beach, CA 92649
Office: 714-533-9210Fax: 714-489-8150Email: attorneychristine@gmail.comWeb: www.attorneychristine.com
Blog:
The post was migrated from Yahoo.

UST Motion to Dismiss Chapter 7 for Abuse

Posted: Thu May 15, 2014 1:50 pm
by Yahoo Bot

2:14-bk-12529-TD
UST contentions:
1. Since lender obtained relief from stay, debtor NOT permitted to take
mortgage deduction on Means Test;
2. Debtor overstated her income because she contributes to her 401k
[debtor contributes 4%; age 35 with $15k balance in account]
3. Debtor's telephone/internet/cable should be cut because UST found
services for cheaper---even though debtor's expenses are BELOW IRS
allowances
4. *Debtor should not be permitted to schedule her student loan payment
[$220.00/mo.] as an expense on Sch. J and instead, apply that in a chapter
13 case*
5. Mortgage payment on Schedule J: UST completely removes mortgage
expenses from Means Test and replaces it with IRS limit amount, yet uses
debtor's acutal mortgage payment on Sch. J, which is less than IRS amount.
This is their core argument to say the debtor, if she made all these
changes.....could propose a $300.00 plan payment when she is negative
$273.00.
Christine
On Wed, May 14, 2014 at 5:28 PM, Jim Selth jim@wsrlaw.net [cdcbaa] wrote:
>
>
> I couldnt open that attachment, Christine. Perhaps it would be easier to
> just post the case number and we can read it on PACER.
>
>
>
> Jim
>
>
>
> James R. Selth
> Certified Bankruptcy Specialist*
> Weintraub & Selth, APC
> 11766 Wilshire Boulevard, Suite 1170
> Los Angeles, California 90025
> Telephone: (310) 207-1494
> Facsimile: (310) 442-0660
> E-Mail: jim@wsrlaw.net
>
> *Certified by State Bar of California as Certified Legal Specialist in
> Bankruptcy Law
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, May 14, 2014 8:00 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] UST Motion to Dismiss Chapter 7 for Abuse [1
> Attachment]
>
>
>
>
>
> *[Attachment(s) from
> Attorneychristine@gmail.com included below]*
>
> Listmates,
>
> The more I read this motion, the more I wonder if this would be
> appropriate to send to
> The chief UST in our region.
>
> I am drafting my opposition now and interested in the group's thoughts on
> this one.
>
> See files attached to this message (sent from GoodReader)
>
>
>
Christine A. Wilton, Esq.
Law Office of Christine A. Wilton
5011 Argosy Avenue, Suite 3
Huntington Beach, CA 92649
Office: 714-533-9210
Fax: 714-489-8150
Email: attorneychristine@gmail.com
Web: www.attorneychristine.com
Blog: www.losangelesbankruptcylawmonitor.com
***************************
Confidentiality and Privilege. This e-mail message, including attachments,
is intended solely for review by the intended recipient(s) and may contain
confidential and privileged information. Any unauthorized review, use,
disclosure, or distribution is prohibited. Review by anyone other than the
intended recipient(s) shall not constitute a waiver of any ATTORNEY-CLIENT
PRIVILEGE or ATTORNEY WORK PRODUCT PROTECTION that may apply to this
communication. If you are not the intended recipient, please contact the
sender by return e-mail and destroy all copies of the original message.
Tax Advice Disclosure. Any tax information or written tax advice contained
in this email message, including attachments, is not intended to and cannot
be used by any taxpayer for the purpose of avoiding tax penalties that may
be imposed on the taxpayer. (The foregoing legend has been affixed pursuant
to U.S. Treasury Regulations governing tax practice.)
2:14-bk-12529-TDUST contentions:1. Since lender obtained relief from stay, debtor NOT permitted to take mortgage deduction on Means Test;
2. Debtor overstated her income because she contributes to her 401k [debtor contributes 4%; age 35 with $15k balance in account]3. Debtor's telephone/internet/cable should be cut because UST found services for cheaper---even though debtor's expenses are BELOW4. Debtor should not be permitted to schedule her student loan payment [$220.00/mo.] as an expense on Sch. J and instead, apply that in a chapter 13 case5. Mortgage payment on Schedule J: UST completely removes mortgage expenses from Means Test and replaces it with IRS limit amount, yet uses debtor's acutal mortgage payment on Sch. J, which is less than IRS amount.
This is their core argument to say the debtor, if she made all these changes.....could propose a $300.00 plan payment when she is negative $273.00.Christine
On Wed, May 14, 2014 at 5:28 PM, Jim Selth jim@wsrlaw.net [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
I couldnt open that attachment, Christine. Perhaps it would be easier to just post the case number and we can read it on PACER.
Jim
James R. SelthCertified Bankruptcy Specialist*Weintraub & Selth, APC11766 Wilshire Boulevard, Suite 1170Los Angeles, California Telephone: (310) 207-1494Facsimile: 20660" target"_blank">(310) 442-0660E-Mail: " target"_blank">jim@wsrlaw.net
st in Bankruptcy LawFrom: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
Sent: Wednesday, May 14, 2014 8:00 AMTo: cdcbaa@yahoogroups.comSubject: [cdcbaa] UST Motion to Dismiss Chapter 7 for Abuse [1 Attachment]
[Attachment(s) from Attorneychristine@gmail.com included below]
Listmates,The more I read this motion, the more I wonder if this would be appropriate to send to The chief UST in our region. I am drafting my opposition now and interested in the group's thoughts on this one.
See files attached to this message (sent from GoodReader)
The post was migrated from Yahoo.

UST Motion to Dismiss Chapter 7 for Abuse

Posted: Wed May 14, 2014 8:00 am
by Yahoo Bot

charset-ascii
Listmates,
The more I read this motion, the more I wonder if this would be appropriate to send to
The chief UST in our region.
I am drafting my opposition now and interested in the group's thoughts on this one.
See files attached to this message (sent from GoodReader)
name="TTEE Mtn To Dismiss.pdf"
filename="TTEE Mtn To Dismiss.pdf"
charset-ascii
Sent from my iPad
Law Office of Christine Wilton
5011 Argosy Avenue, Suite 3
Huntington Beach, CA 92649
Tel: 714-533-9210
Toll Free: 877-631-2220
Blog: www.losangelesbankruptcylawmonitor.com

The post was migrated from Yahoo.