Can I file Bankruptcy Again?

Saturday , 5, October 2013 Leave a comment

Bankruptcy Lawyer in Eatontown NJ.

Can I file Bankruptcy Again? How many times can I file Bankruptcy? . Can you file twice? Can you file a third time? The simple answer is yes. But repeat filers or what are sometimes referred to as “serial filers.” Sometimes those who filed bankruptcy in the past may find it in their in future. There are important dates and time considerations that must be reviewed by your Bankruptcy attorney before deciding if you can file again and then furthermore, when you can file again.

“Can I File Bankruptcy Again?” 
This question is the starting point to your inquiry.  As mentioned above the simple answer is yes.  But your inquiry does not end there! There are waiting periods that are in the Bankruptcy Code so it raises the question: how long you have to wait?
What the Bankruptcy Code says about filing a second Bankruptcy Case
The waiting period begins on the date you filed your first bankruptcy petition and ends on the date you filed your second bankruptcy petition. So for example if you filed your first Chapter 7, bankruptcy on July 1, 2006 and you received a discharge on October 30, 2006. In order for you to qualify for another discharge in your second CH 7, bankruptcy, you must wait until after July 2, 2014 to file your second CH 7 bankruptcy to get a discharge. This date filed to date filed formula works the same for filing various chapter to chapter (1st filing = 7,11,12,13 if 2nd filing = 7,11,12,13). The thing that does change is the time that you must have in between those dates from filing to filing (1st filing = 7,11,12,13 (time ????) 2nd filing = 7,11,12,13).

The Code also tells us that you only have to wait if you received a discharge in your prior case.  If you did not receive a discharge, you can file immediately.  For example, if you filed a Chapter 13 bankruptcy case, and it was dismissed because the plan was not feasible, you do not have to wait to file a second case (provided you meet all other code requirements).
The Code also tells us that  if your prior case was a Chapter 13, bankruptcy case and you were in a plan that paid back your unsecured creditors at least 70%, you do not have to wait (provided you meet all other code requirements).
The final important note is that the waiting period does not prevent you from filing again; it just prevents you from getting a discharge.  You can still file without waiting — you just do not get the benefit of the discharge.  Why would you do this?   If the sole purpose of re-filing is to stop foreclosure, you probably do not need to wait several years, as you still get the benefit of the bankruptcy stay in a Chapter 13 case as well as the ability to cure arrears with a payment plan.
8 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 7 discharge

A debtor cannot receiving a discharge under Chapter 7 if he or she received a discharge in a Chapter 7 or Chapter 11 bankruptcy which was filed within 8 years before the present case is filed. [11 U.S.C. § 727(a)(8)]. So you must wait 8 years when (1st filing = 7,11 (waiting period 8 years) 2nd filing = 7,11).

6 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 7 discharge

A debtor cannot receive a discharge under Chapter 7 if he or she received a discharge in a Chapter 12 or Chapter 13 bankruptcy which was filed within 6 years before the present case is filed. [11 U.S.C. § 727(a)(9)] So you must wait 6 years when (1st filing = 12,13 (waiting period 6 years) 2nd filing = 7). There is an exception here. An individual can file a Chapter 7 less than six years after filing a Chapter 13 in which a discharge was granted, the individual will not receive a discharge in the Chapter 7 unless the court in the Chapter 7 determines that in the Chapter 13 the individual: (a) Paid 100% of the unsecured debts, or (b) Paid 70% of the unsecured debts, the plan was in good faith and the plan was the individual’s best effort.

4 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 13 discharge

A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 7, Chapter 11 or Chapter 12 bankruptcy which was filed within 4 years before the present case is filed. [11 U.S.C. § 1328(f)(1)] So you must wait 8 years when (1st filing = 7,11,12 (waiting period 4 years) 2nd filing = 13).

2 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 13 discharge

A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 13  bankruptcy which was filed within 2 years before the present case is filed. [11 U.S.C. § 1328(f)(1)] So you must wait 2 years when (1st filing = 13 (waiting period 2 years) 2nd filing = 13).

An individual may have a good reason to file a Chapter 13 even though the individual is not eligible for a discharge because of a previous bankruptcy. The individual may use Chapter 13 to stop a foreclosure of a house or a repossession of a car or garnishment of wages, by catching up the house or car payments or paying creditors in full without discharging any debt. Some judges allow such a Chapter 13 to strip-off a second mortgage that could not be stripped-off in a previous Chapter 7. A Chapter 7 followed by a Chapter 13 is nicknamed “Chapter 20.”

The New Jersey personal bankruptcy attorneys at Riviere Cresci & Singer LLC can answer any questions you may have concerning filing Bankruptcy, or any general bankruptcy questions. If you live in New Jersey, including Old Bridge, Lacey, Berkeley, and Middletown, call us for a free consultation to find out how we can help you.

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