Asaph Abrams Attorney at law

San Diego Bankruptcy

bankruptcy attorney san diego
 

Can I file for bankruptcy protection more than once?

How long do you have to wait to file for bankruptcy protection again?  It seems a simple enough thing to ask. You’ll probably find your answer immediately below. However, in some cases, the answer’s convoluted.  As always, hasty assumptions are not salutary.  Let’s break it down:


Can I file a chapter 7 bankruptcy if I previously filed a chapter 7 bankruptcy?

If you had previously filed a chapter 7 bankruptcy AND received a discharge (successfully completed your case), you cannot file another chapter 7 bankruptcy until 8 years have passed since the date the prior chapter 7 bankruptcy was filed. 


Can I file a chapter 7 bankruptcy if I previously filed a chapter 13 bankruptcy?

If you had previously filed a chapter 13 bankruptcy AND received a discharge, you cannot file a chapter 7 bankruptcy until 6 years have passed since the date the chapter 13 bankruptcy was filed.  An exception applies if the prior chapter 13 bankruptcy provided for: 1) payment of 100% of your “allowed unsecured claims” OR 2) payment of 70% of such claims coupled with “good faith” and “best effort” per 11 U.S.C. §727(a)(9)(B)(ii).  If this convolution upsets you, please contact your Congress-person or give me a buzz for clarification.


Can I file a chapter 13 bankruptcy if I previously filed a chapter 7 bankruptcy?

If you had previously filed a chapter 7 bankruptcy and received a discharge, you can’t file a chapter 13 bankruptcy that results in a chapter 13 discharge until: at least 4 years have passed since you filed the prior chapter 7 bankruptcy.


There is no bar to filing a chapter 13 bankruptcy within 4 years (or immediately) after filing a chapter 7 bankruptcy. However, if you don’t wait the prescribed 4-year period, then your chapter 13 bankruptcy will not end in a discharge, meaning you won’t eliminate any debt that you don’t actually pay for.  In other words, you wouldn’t get to pay pennies on the dollar; though, even without a discharge, you might benefit from court protection and the ability to distribute payments of debts over the course of up to 60 months.


Can I file a chapter 13 bankruptcy if I previously filed a chapter 13 bankruptcy?

It’s an uncommon fact pattern (since in most cases, chapter 13 bankruptcies take at least 3 years), but if you had previously filed a chapter 13 bankruptcy and received a discharge, you can’t file another chapter 13 bankruptcy that results in a chapter 13 discharge until: at least 2 years have passed since you filed the prior chapter 13 bankruptcy.


There is no bar to filing a chapter 13 bankruptcy within 2 years after filing a prior chapter 13 bankruptcy that resulted in a discharge. However, if you don’t wait the prescribed 2-year period, then your subsequent chapter 13 bankruptcy will not end in a discharge.


If you’ve filed bankruptcy before and you’re seeking current representation, please contact us to discuss the ramifications of your particular filing history.


180-day bars (not referring to pubs open six months):


Commencing upon dismissal, a 180-day bar to re-filing a bankruptcy case applies if the court dismissed your case after you willfully failed to abide by a court order or failed to appear before the court in proper prosecution of the case.


Commencing upon dismissal, a 180-day bar to re-filing a bankruptcy case also applies if you voluntarily dismissed (withdrew) your bankruptcy petition after a creditor objected to the automatic stay (suspension) of its claim. What does that mean? At the moment of filing, the automatic stay is issued; it grants immediate protection from collections, repossessions and foreclosures.  Yet, secured creditors can make a motion to the court to lift the stay as it pertains to them. That is called a motion for relief from stay.  A creditor would make such a motion if you were in foreclosure or in default on your auto loan.  There is some delay between the time of filing a bankruptcy petition and the time a secured creditor can lift the automatic stay.  To file for bankruptcy repeatedly would be an attempt to successively exploit that lag time.  Bankruptcy is designed for debtors to complete its requirements and ultimately obtain a discharge of their debt.  It is not designed for enabling serial bankruptcy filings merely to exploit temporary benefits of the automatic stay.  Note that chapter 13 bankruptcies can be voluntarily dismissed; chapter 7 bankruptcies do not have a provision permitting voluntary dismissal.


180 days is a long time to repent when you’re in dire economic straits.



Limitations on the automatic stay if you re-file

If you had one prior bankruptcy case that was pending and got dismissed/closed prematurely within one year of refilling, then the automatic stay expires the 30th day after you file the subsequent case. If you had more than one prior bankruptcy that was pending and got dismissed/closed prematurely within one year of refilling,, then there is no automatic stay. Period. Without the automatic stay you don’t have bankruptcy protection from collections, repos, foreclosures and other ills prior to your discharge.  The good news is that you can file a motion to either extend the stay or to instate it, but the stay can’t apply again to a creditor that had already filed a motion for relief from stay in the prior case.  The motion itself must abide by strict deadlines and criteria. 


Within the above parameters, there is no limit to the number of times you can file bankruptcy.  Here’s a doozy:

Methuselah was born 100 years ago, today and he died today.  Methuselah filed his first bankruptcy on his 19th birthday.

Over the course of his life, he filed the same number of chapter 7s as chapter 13s and he received a discharge for every filing. Each chapter 13 lasted 36 months.

Applying today’s law: what is the maximum number of times he could have filed bankruptcy?

Have at it, but don’t ask me.  I’m assigning it to my son for extra-credit homework.





General Bankruptcy Questions

San Diego bankruptcy attorney
San Diego bankruptcy attorney

To discuss your particular situation, please call (858) 344-0500 to schedule your free consultation.