UST Motion to Dismiss Chapter 7 for Abuse
Posted: Thu May 15, 2014 5:08 pm
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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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:
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