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I already filed bankruptcy, when can I file bankruptcy again?

| Feb 1, 2021 | Bankruptcy, Firm News

You need to wait eight years from the filing date of a prior Chapter 7, in order to file another Chapter 7 and get a discharge. If it’s been less than eight years, but at least four years, you can file a chapter 13, and get a discharge. My “over/under,” where I advise people with a prior chapter 7 to file a chapter 13, versus wait it out and file a Chapter 7, is 18-24 months away from the eight year anniversary – as long as they’re not getting garnished and don’t have other factors making them ineligible for a chapter 7 later (such as rising income or saving funds) then I try to get people into a chapter 7, and can represent them to fend of collections while we wait.

You can still file a chapter 13 less than four years following a Chapter 7, but you won’t get a discharge. Sometimes people do this in order to stop a foreclosure right after a Chapter 7, or restructure a car loan. A chapter 7 followed by a chapter 13 shortly thereafter is sometimes referred to as the mythical “chapter 20.”

If you filed a prior chapter 13, and are now looking to file a Chapter 7, you need to wait six years from the time the chapter 13 was filed, at least in order to get a discharge in the Chapter 7, which is kind of the point of chapter 7.

These four, six, and eight year rules are all about getting a discharge. But if you did not get a discharge in the prior case, for instance a chapter 13 that was dismissed, then those rules don’t apply. However, there are a couple of rules that do apply: If you file a second chapter 13 case, within a year of the prior one being dismissed, you are well advised to bring a motion to get the automatic stay extended, within 30 days of filing. And if you file a third chapter 13 case, the stay does not apply, unless you bring a motion to show that your third filing was in good faith. Pretty much everybody gets a mulligan and a second chance, but once you get into a third case you run the risk of being labeled a serial filer, and can be accused of violating the bankruptcy process.

Another caveat is when there has been a motion for relief from stay, and you voluntarily dismiss your chapter 13, you are not supposed to re-file any case for another six months.