Jdebtor on means test
Posted: Sun May 18, 2014 2:14 pm
Steve:
I agree that you only need contributed income.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On May 18, 2014, at 10:51 AM, "stephen burton stephenburtonlaw@yahoo.com [cdcbaa]" wrote:
>
> I have a variation of this scenario. Unmarried couple, not registered domestic partners. Three children all theirs. PC wants to file a bankruptcy for herself. She has no income of her own. She is a homemaker. The partner's is adamant about not shariing his income info. They may or may not be over median, but I cannot pull the necessary info out of him.
>
> Have debtor file and have her provide a declaration about the subborn partner and provide a written disclaimer to her prior to filing the case will be challenged and that it may not succeed? Or just pass on the case?
>
> Steve Burton
>
> On Thursday, October 7, 2010 2:39 AM, clifford_bordeaux wrote:
>
>
>
> I had a case like this. Debtors were above median, but maintaining two households. Divorce is planned, but not imminent. H&W were both liable on the mortgage. H was paying the mortgage for the house in which W lived and had his own separate household expenses. I attempted to file a joint case and claim special circumstances on the means test for H's separate household expenses. I received a call from the UST, in which it was suggested to me that a motion to dismiss would be forthcoming unless the clients consented to voluntary dismissal.
>
> However, it was also suggested to me that the presumption might not arise if filed as two separate cases. After discussing the merits of opposing a UST motion based on "special circumstances," vs. filing two new cases (hopefully two 7s, but possibly a 7 and a 13), clients elected to consent to dismissal and file separately.
>
> My plan is to file a new 7 for W (who is low income), claiming the mortgage payment as part of CMI and counting mortgage liability as an offsetting expense. I'm not sure yet if H will qualify for Chapter 7, but I plan to claim the mortgage expense in his case, since it is a secured debt for which he is contractually liable, along with his separate household expenses for the cost of his housing. I don't think this is double-counting because H's payment goes into W's CMI, so the net effect is that W is not claiming a mortgage expense and H is claiming mortgage expense and the cost of his rental housing.
>
> I think the analysis would be similar in the case of an unmarried couple living together. Seems like Partner #1 should count the full mortgage as an expense, BUT also count any contributions from Partner #2 as part of CMI (and vice versa).
>
> Incidentally, for unmarried couples, UST takes the position that if you count the partner as a household member, then 100% of partner's income must be included in CMI. I disagree with this analysis and I am fighting the UST's interpretation in a separate case (2:10-bk-28205-BB). Most of the cases in other districts seem to be on my side (most cases hold that even if the debtor claims someone as a household member using the "heads on beds" test, UST still has the burden to prove up actual contributions of the non-filing household member and that only actual contributions are includible).
>
> --- In cdcbaa@yahoogroups.com, larry@... wrote:
> >
> > As an aside, what do you do with H and W that are separated and maintaining 2 households? Do you file 2 separate means test along with a declaration explaining the circumstances? I'd like to know how others are handling such debtors.
> > Sent via BlackBerry by AT&T
> >
> > -----Original Message-----
> > Sender: cdcbaa@yahoogroups.com
> > Date: Wed, 6 Oct 2010 17:44:40
> > To:
> > Reply-To: cdcbaa@yahoogroups.com
> > Subject: Re: [cdcbaa] Jdebtor on means test
> >
> > The contribution from the co-title holder to the payments (and other
> > household expenses) must come into CMI.
> > Peter M. Lively, JD/MBA
> > Law Office of Peter M. Lively * Personal Financial Law Center I
> > 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> > Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> > A-Bankruptcy-Attorney.com
> > Personal Financial Law Center II - Costa Mesa, CA
> >
> >
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> > ________________________________
> > To: cdcbaa@yahoogroups.com
> > Sent: Wed, October 6, 2010 5:39:01 PM
> > Subject: [cdcbaa] Jdebtor on means test
> >
> >
> > I have two similar fact scenarios on my desk involving unmarried joint debtors.
> > The first couple are registered domestic partners and the second couple are not
> > married, but could be. Each couple owns a home together and > > liable for their mortgage. The domestic partners have a lot of jointly owned
> > property, with joint obligations on mortgages and secured lenders on vehicles.
> > They will be appropriately listed on each others petition. The second couple
> > have one house together and are both on the 1st and second mortgage.
> >
> > Each individual needs to use the full amount of their joint mortgage secured
> > payment to pass the means test. Actually I don> > they are only responsible for 50% of the debt payment when they have joint
> > liability under 707(b)(2)(A)(iii)The debtor> > account of secured debts shall be calculated as the sum of> > amounts scheduled as contractually due to secured creditors . . . Therefore
> > they can each use the full secured payment on their means test in each of their
> > petitions, right?
> >
> > Am I missing anything?
> >
> >
> >
> > Larry Webb
> > State Bar of California 229344
> > Central District California
> > "A Debt Relief Agency"
> >
> > Larry@webbklaw. com
> > Law Offices of Larry Webb
> > 484 Mobil Ste 43
> >
> > P 805.987.1400
> > F 805.987.2866
> > C 805.750.2150
> >
> > Camarillo Ca 93010
> >
>
>
>
>
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