There's no reason to wait to convert. Waiting only increases chance of a
Trustee's Motion to Dismiss.
Converting now should be successful because:
_Theory_: The debtor's duties in 521(a)(1)(B)(ii) don't spell out a time
when the B22 must be filed. However, other elsewhere in the Code says
Means Test is required at time of /filing/. 11 USC 101 10A(A)(i) states
it includes income from the last day of the calendar month immediately
preceding the date of the /commencement of the case/. (emphasis added).
The filing of the case commences it. Converting only perpetuates it. The
UST Trustee position is that this also means upon conversion, but last
time I researched this, there was no caselaw to support that.
But you don't need to fight this unless you must because...
_Practical_: However, you can avoid a battle on this by submitting an
updated B22 including higher income, with the presumption of abuse
arising. But presumptions are meant to be rebutted, and if the
presumption of abuse applies, a separation letter, document about the
layoff, "final paycheck" etc will rebut the presumption, assuming the
current income would otherwise qualify for Chapter 7.
So there's no reason to delay to file your Motion to Convert, but
waiting can have consequences if the case gets dismissed.
Hale
On 3/5/2018 1:49 PM, 'Peter M. Lively'
petermlively2000@yahoo.com
[cdcbaa] wrote:
> Consider a motion for hardship discharge in the chapter 13. Otherwise,
> wait until the pre-conversion date chapter 7 means test does not give
> rise to a presumption of abuse. I haven't had any trouble with debtors
> becoming eligible for chapter 7 using a conversion date means test
> where the pre-petition chapter 13 means test would have resulted in a
> presumption of abuse.
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310)
> 391-2462
>
>
> On Monday, March 5, 2018, 1:14:14 PM PST, John Faucher
>
j.d.faucher@sbcglobal.net [cdcbaa] wrote:
>
>
> Does he meet the means test? The means test period is the six calendar
> months prior to the chapter 13 petition, not the six calendar months
> prior to conversion.
> - John D. Faucher
>
>
> ------------------------------------------------------------------------
> *From:* "'Desiree Causey 714-372-2225'
causeylaw@gmail.com [cdcbaa]"
>
> *To:*
cdcbaa@yahoogroups.com
> *Sent:* Monday, March 5, 2018 1:10 PM
> *Subject:* [cdcbaa] Chapter 13 client just got laid off
>
> My Chapter 13 client in a confirmed plan just let me know he was laid
> off. He has no prospects for another job. Is it best to just file
> the conversion to a Chapter 7 now, or so I need to wait a certain
> period of time?
> Desiree Causey, Esq.
> Law Office of Desiree Causey
> 7755 Center Avenue, Suite 1100
> Huntington Beach, CA 92647
> 714-372-2225 (phone)
> 714-908-7646 (same fax number)
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>
*/Hale Andrew Antico/*
(661) 252-9900
http://www.ScvBankruptcy.com
/Vice-President, Board Member, Central Dist Consumer Bankruptcy
Attorneys' Assn.(CDCBAA)/
/Past President, Board Member, James T. King Bankruptcy Inn of Court/
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