Many individuals who were debtors in a prior bankruptcy case and who fall upon hard times a few years later want to know whether they can file another bankruptcy case. The answer to that question very much depends on several factors including (i) the timing of the prior bankruptcy case; (ii) the chapter under which the prior bankruptcy case was filed; (iii) whether the debtor received a discharge in that prior bankruptcy case; (iv) the chapter under which the debtor wishes to file a subsequent bankruptcy case; and (v) whether or not the debtor needs or expects a discharge.
If your prior bankruptcy case was dismissed with prejudice, generally, you will be unable to file another bankruptcy petition for a period of 180 days. There are many reasons why a bankruptcy court could dismiss a case with prejudice but, generally speaking, when a debtor has acted in good faith but a bankruptcy court must still dismiss a bankruptcy case, the order dismissing the case will be without prejudice to refile.
Past Bankruptcy Filing Eligibility for a Discharge Under Chapter 7 of the Bankruptcy Code
If you have a received a prior discharge in a case under chapter 7 or a case under chapter 11 of the Bankruptcy Code, you are not eligible to receive another discharge unless 8 years have elapsed between the date upon which you filed the prior case and the date of filing of a subsequent bankruptcy petition. If your prior discharge occurred in a case under chapter 12 or chapter 13 of the Bankruptcy Code, the waiting period is 6 years in most cases. However, if in your prior chapter 12 or chapter 13 bankruptcy case you paid your unsecured creditors 100% of their allowed claims, you would be eligible for a discharge under chapter 7 without any waiting period. Also, if in your prior chapter 12 or chapter 13 bankruptcy case, you paid your unsecured creditors 70% of their allowed claims, proposed that prior chapter 13 bankruptcy plan in good faith and it was your best effort, you will also not be held to the 6 year bar for a discharge in a chapter 7 bankruptcy case.
Past Bankruptcy Filing Eligibility for a Discharge Under Chapter 13 of the Bankruptcy Code
You are not entitled to receive a discharge in a case under chapter 13 of the Bankruptcy Code within 4 years of having received a discharge in a case under chapter 7, chapter 11, or chapter 12 of the Bankruptcy Code. Once again, the waiting period is less for a prior case under chapter 13 of the Bankruptcy Code. In that instance, you are barred from receiving a discharge in a chapter 13 case within 2 years of having received a discharge in a prior chapter 13 case.
As you can see, determining eligibility for a discharge when you’ve filed a prior bankruptcy requires careful attention to the facts of your case. Additionally, even if you are not eligible to receive a discharge, you may still wish to file a bankruptcy case for other reasons. For example, a person who has fallen behind on their mortgage payments may wish to file a chapter 13 bankruptcy case for the benefit of the automatic stay and to have the ability to repay the arrearages through a chapter 13 plan over a period of 3 to 5 years. As with most bankruptcy questions, it is best to discuss them with an experienced bankruptcy lawyer during a free initial consultation.
Robleto Law, PLLC