The lack of a discharge in the original case is actually an advantage in terms of time. While there is no time restriction for filing successive bankruptcies after obtaining a discharge, you are not necessarily eligible to receive another discharge. To obtain another discharge through Chapter 7, a debtor must allow eight years between petition dates.
In Chapter 13, the period between discharges must be two years. When you are filing between chapters, the time frame is different. If you received a discharge in a Chapter 13 bankruptcy, you are required to wait at least six years to obtain another discharge through Chapter 7.
Additionally, if your first discharge was in a Chapter 7 bankruptcy, four years must elapse before a Chapter 13 discharge could be entered. In bankruptcy cases where you never received a discharge, there are some time restrictions from filing another case. Typically, if the bankruptcy that was dismissed is your first filing, you could file the same day of receiving a dismissal.
However, if a debtor filed multiple bankruptcies, then there are significant restrictions that apply. You also need to understand that refiling after a dismissal may also affect the automatic stay, which is very important because of its role in protecting debtors from collection actions during a bankruptcy.
If your previous case was dismissed within the previous year, and you file for the second time, the automatic stay will only last for 30 days. If you want this protection period to last longer than 30 days, your New Jersey bankruptcy lawyer can help you file a motion to extend the stay.
Since the stay will only last for one month without a modification, this motion should be filed as soon as possible, ideally within several days. For the order extending the automatic stay to be granted, a debtor must show to the satisfaction of the court that there was a significant financial change in circumstances that will allow the new case to be successful. For example, if the reason you were unable to make payments in the previous case was because of a job loss, then a new job, even if the income was the same, would constitute a change in financial circumstances.
The following are some other common examples. If you had two bankruptcy dismissals during the previous year, there is no longer any automatic stay at all, meaning you have zero protection against your creditors.
Needless to say, this is not a good position to be in. Fortunately, it may be possible to be granted a stay if, within 30 days of filing your new case, you can persuade the judge that the new case was not filed in bad faith. Our experienced attorney will have to file a motion to impose an automatic stay. The burden on the debtor in this situation is much higher than the burden in extending the stay past 30 days. Bad faith essentially means that you filed with unethical ulterior motives.
Bankruptcy is intended to help people overcome insolvency, so if a debtor files for some other, unapproved purpose, such as getting out of a debt or contract, then he or she may be deemed to be acting in bad faith. Unfortunately for people who file frequently, opening multiple cases is often assumed to be a sign of bad faith. To maximize your chances of being interpreted as acting in good faith:.
After struggling for several years in a Chapter 13 bankruptcy, a debtor could feel overwhelmed if their case is dismissed. Now clearly, it is in the best interests of any debtor to successfully complete their bankruptcy and obtain their discharge. You'll still have options to salvage your bankruptcy and save your property.
After the Chapter 13 trustee requests dismissal of your case, you can still ask the court for more time to cure catch up on your default.
This option is easiest if you missed a few payments due to an emergency, but you are now back on track and can begin to cure your arrearages. Most trustees and judges will grant you additional time if you can show that you can make up your missed payments. If your circumstances have changed since filing the bankruptcy for example, if your income decreased due to a pay cut , you may ask the court to modify your plan and reduce your monthly payments.
However, this might not be possible if all you are paying through the plan are priority debts and secured debts on property you don't wish to surrender. Because you must pay these debts in full, the court won't be able to lower your Chapter 13 plan payments. Even if the court dismisses your bankruptcy, you might be able to reinstate your case.
However, you will usually need to do this soon after the dismissal, and you'll be required to bring your plan payments current. You might also be able to convert your bankruptcy from a Chapter 13 to a Chapter 7 you'll receive a discharge without making any plan payments. To do this, you must show that you qualify for a Chapter 7 bankruptcy because you cannot afford a Chapter 13 any longer. But keep in mind that Chapter 7 does not allow you to discharge your priority debts or cure your arrearages, so it might not be in your best interest to convert.
Similarly, you can request an early Chapter 13 hardship discharge. However, you would be subject to the same limitations as that of Chapter 7. In most cases, you can refile a Chapter 13 immediately following dismissal. But you might be barred from refiling for six months if you disobeyed court orders or voluntarily dismissed your prior case, especially after a creditor obtains relief from the stay.
These types of filing prohibitions occur when the court dismisses your case "with prejudice. Learn more about multiple bankruptcy filings. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. Last updated on October 22, Posted by: Erik Clark. Dismissal of a bankruptcy case is unfortunate and can happen for a number of reasons.
The Bankruptcy Code places numerous responsibilities on debtors and failure to comply can jeopardize your case; making it important to consult with a knowledgeable bankruptcy attorney before filing. When a bankruptcy case is dismissed without issuance of a discharge, you are once again at the mercy of your creditors , meaning collection efforts can resume and the automatic stay, which freezes creditor collections, disppears.
Failure to comply with this requirement will result in an automatic dismissal of the case. Similarly, a bankruptcy case will be dismissed if the debtor fails to appear at the meeting of creditors or does not file a financial management certificate with the court soon thereafter. What to do in the event of a dismissal? The answer will turn on exactly why your case was dismissed. Section g of the Bankruptcy Code prevents a debtor whose case was dismissed from filing another bankruptcy for days if:.
In these cases, the debtor will almost always be permitted to refile right away without any hassle.
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