How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask P. Simmons Your Own Question

P. Simmons
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 26840
Experience:  16 yrs. of trial experience
11181181
Type Your Legal Question Here...
P. Simmons is online now
A new question is answered every 9 seconds

I am a disabled veteran, as defined in 38 USC 3741(1), filing

Resolved Question:

I am a disabled veteran, as defined in 38 USC 3741(1), filing bankruptcy in North Carolina. My case was converted from chapter 7 to chapter 13 (which I didn't think was legal) and now I am being told to verify the means test my lawyer has filled out for me. Right on the means test it says not to fill it out if you are a disabled veteran as defined in 38 USC 3741(1). Also I was under the understanding that my VA disability compensation was not to be counted as income, that it was to be considered compensation like social security. No one can explain to me why I have to fill out the means test or why my compensation counts as income. Does this sound right?
Submitted: 1 year ago.
Category: Legal
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

The statute that applies is 38 USC § 5301.

This section exempts veterans benefits from assignment. They can not touch your VA benefits. It is not income...it is compensation. Similar to social security (in that it can not be assigned)

They can still do a means test...that is part of the Bankruptcy code.

Part of the application for Ch 7 is the means test.

And they can include income from VA compensation...but understand that that is simply to determine if you qualify for apply for the protection (under the Bankruptcy code).

That is separate and distinct from what the creditors can garnish or what the court can assign.

A totally separate analysis.

ALSO, it MAY be you are exempt from means testing:

If you are a veteran, you are exempt from the means test if:

1. you are considered “disabled,” as defined by bankruptcy law (see below), and

2. you incurred the debt while on active duty or performing a homeland defense activity.

SO if you incurred the debt while serving during the time you incurred the disability, you can, and should apply for an exemption under Ch 7 of the Bankruptcy code.

Customer: replied 1 year ago.


this is my case. I retired last April with almost 22 years of honorable service, and was rated 50 percent disabled. all of my debt was incurred during my active duty time. I brought it to my lawyers attention that my case shouldn't be converted from a chapter seven and I shouldn't have to take the means test. he sent me a formal letter asking if he should convert my case or have it dismissed. I tried to get a second opinion and no lawyer will talk to me saying it is unethical because I have an attorney. I feel like I am being wronged and I am not sure how to handle this matter. So how do I apply for an exemption?

Expert:  P. Simmons replied 1 year ago.
You need to go back to the court and petition the court for the exemption.

The code is clear...if the debt was incurred while on active duty and your disability was from active duty and you are 30% or more disabled, you qualify for the exemption (so you do not have to take the means test).


11 USC 707(D) provides

(D) Subparagraphs (A) through (C) shall not apply, and the court may not dismiss or convert a case based on any form of means testing—
(i) if the debtor is a disabled veteran (as defined in section 3741 (1) of title 38), and the indebtedness occurred primarily during a period during which he or she was—
(I) on active duty (as defined in section 101 (d)(1) of title 10); or
(II) performing a homeland defense activity (as defined in section 901 (1) of title 32); or

I would make sure your lawyer understands the law...if they do not? Find one who does.

Customer: replied 1 year ago.


According to the administrator he can dismiss my case based on what he called the "catchall" statute 707(B)(2)(b). I just want to make sure that 707(D) covers 707(B)(2)(b) and he cannot in fact dismiss my case as per that statute. I think he bullied my attorney into converting my case to a chapter 13.

Expert:  P. Simmons replied 1 year ago.
The law is clear


(D) Subparagraphs (A) through (C) shall not apply, and the court may not dismiss or convert a case based on any form of means testing—

A - C includes B...
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 26840
Experience: 16 yrs. of trial experience
P. Simmons and 4 other Legal Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
 
 
 

Related Legal Questions