Legal Question in Bankruptcy in Minnesota


My husband and I want to file bankruptcy. We do not want to do CH. 13. We met with one attorney who calculated our means test. As a result, we do not pass. We have approximately $300 too much expendable income (that is, over the approx. $180 under which we could make it).

My 3 questions:

1. I have $125,000 student loan debt. I understand this can NOT be discharged, so that is not my question! My question is, can my monthly payment (over $600) be use to adjust my CMI on the means test? Is it placed in the unsecured, non-priority section OR Part VII, Additional Expense Claims? If the latter (additional expenses) can the trustee/court consider this? It IS a payment I must make, and want to make, but it obviously makes a major change to my CMI (and would qualify us for Ch. 7).

2. Regarding childcare expenses, over the past 6 months we've averaged $400/mo but as of next week must switch daycare providers b/c our current place is closing. We are also from part to full time care. Our monthly expenses will now average $600/mo. Which amount should be used on the means test?

3. Last question! Are expenses such as professional membership dues and vet costs (minimal--nothing crazy!) calculated anywhere into the means test?

(FYI, we HAVE contacted a BK attorney, but I wanted a second opinion on these matters. We'll likely meet with another attorney as well.)

Thanks you in advance.

Asked on 8/06/12, 3:59 pm

1 Answer from Attorneys

David Kelly-952-544-6356 Kelly Law Office

You sound like a 13 to me. To be safe in a 7 you need to not just get by. You need to pass the means test with plenty of wiggle room. In the close cases the trustee's office will harass you to death looking for mistakes. If they can't find something wrong, they'll make it up.

You can't use student loans on the means test. Not at all. No way, no how.

On the child care, I would use the higher number going forward. There may be some lack of clarity in the law on some of these things as to whether they look forward or look backward - so I use the one that gives the best result. This, however, is an example of the kind of thing the trustee's office might pick on you over.

There is a line on the means test for employment related education expense. Other than that the answer to your third question is no and no.

This response is for general information purposes only and does not create an attorney-client relationship. It is not legal advice.

Read more
Answered on 8/07/12, 12:40 pm

Related Questions & Answers

More Bankruptcy Law questions and answers in Minnesota