When can I file bankruptcy if I filed a case in the past?
Many individuals wrongly assume that they can only file for bankruptcy once. This is not true. Life events such as a job loss, divorce or unexpected medical expenses can cause you to fall behind on debt payments and leave you vulnerable to wage garnishment, vehicle repossession or foreclosure. If you have filed a bankruptcy in the past, you are probably wondering if you can file another bankruptcy to get relief from your creditors and get back on your feet. The answer is generally yes. You can file another bankruptcy and receive a discharge of your debts provided certain time periods have passed. Remember that the time periods refer to the filing date of the previous case and the new case and assume that you received a discharge in the previous case.
Filing a Chapter 7 Bankruptcy after a previous Chapter 7 Bankruptcy
If you filed a Chapter 7 Bankruptcy in the past and received a discharge, at least eight years must pass from the filing date of your previous Chapter 7 case before filing a new Chapter 7 case.
Filing a Chapter 13 Bankruptcy after a previous Chapter 13 Bankruptcy
If you filed a Chapter 13 Bankruptcy in the past and received a discharge, at least two years must pass from the filing date of your previous Chapter 13 case before filing a new Chapter 13 case. This is generally not an issue because most Chapter 13 Bankruptcy cases last 36-60 months.
Filing under a different chapter of bankruptcy
If you file a second bankruptcy case under a different chapter than the previous case in which you received a discharge, the order in which you file the cases will control what chapter you are eligible to file.
Filing a Chapter 13 Bankruptcy After Filing a Chapter 7 Bankruptcy
If you filed a Chapter 7 Bankruptcy in the past and received a discharge, at least four years must pass from the filing date of your previous Chapter 7 case before filing a new Chapter 13 case.
Filing a Chapter 7 Bankruptcy After Filing a Chapter 13 Bankruptcy
If you received a discharge under a previous Chapter 13 bankruptcy, you must wait six years (from the Chapter 13 bankruptcy filing date) before filing for a new Chapter 7 case. However, if your prior Chapter 13 case paid your unsecured creditors at least 70% of the debts, then you will not have to wait six years.
What if I am not eligible for a discharge?
The time periods above are for successive bankruptcy cases in which you are eligible to receive a discharge. If the required time periods have not passed, you can still file a bankruptcy, but you will not be eligible for a discharge of your debts. Why would you file for bankruptcy if you are not eligible for a discharge? Well, you might not need a discharge; instead, you just need time to bring certain debt payments current. For example, suppose you filed a Chapter 7 Bankruptcy 2 years ago and received a discharge, but later experienced a medical hardship that caused you to fall behind on your mortgage or vehicle payments. You could still file a Chapter 13 Bankruptcy to allow you to repay your mortgage or vehicle arrearages over 3-5 years. A Chapter 13 Bankruptcy will give you the time you need to stop a foreclosure or repossession.
What if I did not receive a discharge in my previous case?
Generally, if you did not receive a discharge in your previous bankruptcy case, you can file a second case and receive a discharge. Under certain circumstances, if you file bankruptcy cases in quick succession (more than one case in the previous 12 months) you may not have the full benefit of the automatic stay. The automatic stay is the order that stops all collection attempts during the pendency of your bankruptcy. You will likely have to request an extension of the automatic stay from the bankruptcy court if you have had at least one prior case pending within the previous 12 months.
If the court dismissed your previous case you can generally file a new bankruptcy case, provided the court did not prohibit a subsequent filing in your previous bankruptcy case. There may be a 180-day waiting period if you voluntarily dismissed your previous case after a creditor filed a motion for relief from the automatic stay.
If the court entered an order denying you a discharge in your previous case, you may be eligible to file a new case, but you probably will not be entitled to a discharge of the debts listed in the previous case.
If you are considering filing a bankruptcy, you should consult with an experienced bankruptcy attorney to consider what options are available to you. At Treguboff Law, PLC, we have the experience necessary to guide you through this complex process. Call today for a free consultation.