The right to file a Chapter 7 instead of a Chapter 13 does not depend on the debtor's expenses - it depends solely on the debtor's income. If your current income level qualifies you for a Chapter 7, this will not be changed - whether or not you are paying your mortgage.
I think this is what you wanted to know. If not, please let me know.Thank you!
Please clarify for me. "The presumption does not arise" was what allowed me to file a chapter 7 vs a 13. My understanding was that the "presumption" was a calculation of both income AND fixed expenses THAT ARE OR WILL BE left AFTER all the other debts are wiped clean? As my wife and I make a combined income of approx 103K we just barely squeaked by to qualify for the chapter 7. Nonetheless, we did qualify. If I should stop paying my mortgage I'm suddenly flush with an additional $2,000 to pay creditors. No?
I should have said if your total gross household income is below the state median, expenses are not a factor in the Means Test.
If your household income is above the median, so that the second part (expenses) of form 22A (Means Test Calculation) had to be filled out, then the amount you pay for the mortgage or for rent could be a factor, especially if you had to claim an amount greater then the standard for your county.
However, the motion for relief from the automatic stay will have to be dealt with before the Bankruptcy is finalized. You will not be able to delay it until afterward.
Since the discharge is so close, it does not make sense for the mortgage company to file this motion, because it is costly, and the automatic stay will be gone as soon as the Bankruptcy is discharged. Perhaps if you contact the mortgage company to explain this to them, they will withdraw the motion.
Last question and I'll hit the accept button! I will do as you suggest and ask them to remove withdraw the motion. In the event they refuse, must the income and expense calculations be re-submitted?
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