Filing a Chapter 13 ( Thirteen ) Bankruptcy


S

sunnovia

I think I'm in possession of some incorrect, or outdated, information,
so I've come here to find out for sure. I'm a longtime resident of a
city in Wisconsin who has a need to file a Chapter 13 bankruptcy in
order to get some federal and state income tax debt under control.
(And a smattering of other debt, too.)

About seventeen months ago, my spouse and I received a discharge from
a previously filed Chapter 13 .

When the new bankruptcy law first came out, my attorney was of the
opinion that it would not be possible to file a Chapter 13 again for a
number of years. (I don't recall how many, only that it was far
enough in the future to be problematic, given our ongoing
circumstances.)

Well, we're in a position where we really do need the relief that
would come from having another Chapter 13 in place...and I do recall
seeing a posting by Attorney Weiss which indicated that the applicable
dates--regarding years in between Chapter 13 bankruptcies--had to do
with the dates between DISCHARGES...not between the last discharge and
the next FILING.

In other words, the fact that we are seventeen months off of discharge
would not act to bar us from filing and receiving relief...that we
simply could not obtain a discharge sooner than a certain time
period...a time period which would be sufficiently far off into the
future to meet the discharge to discharge requirement period.

Have I pretty well summed up the reality of the situation, or are
there other factors I need to consider before trotting off to my
attorney to discuss this in earnest?

Sunny
 
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B

Brett Weiss

Sunny:

You can refile a Chapter 13 at any time. There are some restrictions
added on repeat filers by the new law:

1. If you had one prior case pending in the year before your new case,
the automatic stay expires after 30 days unless you file a motion to
extend it, and the motion is granted.
2. If you had two prior cases pending in the year before your new
case, the automatic stay does not go into effect, you must file a
motion to impose it.
3. If you filed a case in which you received a Chapter 7, 11 or 12
discharge in the 4 years before your current case was filed, you
cannot receive a Chapter 13 discharge in your current Chapter 13
case.
4. If you filed a case in which you received a Chapter 13 discharge in
the 2 years before your current case was filed, you cannot receive a
Chapter 13 discharge in your current Chapter 13 case.

In 3 and 4, the measurement period is from filing to filing, not from
discharge to filing. (Note: one of the Chapter 13 Trustees here in
Maryland has argued that it should be from discharge to filing. He
lost at the bankruptcy court, lost on appeal at the district court,
and now has appealed the case to the 4th Circuit. I've handled the
case from the beginning, and believe he will lose at the 4th Circuit
as well.)

Please note that 3 and 4 apply only to your ability to receive a
discharge, not on your ability to file and receive the benefit of the
automatic stay in a Chapter 13. If you are trying to stop a
foreclosure and need time to pay a secured or priority debt in full,
you need the automatic stay much more than the discharge.

Brett Weiss
(e-mail address removed)
www.brettweiss.com

Maryland, DC and Federal bars
Member, National Association of Consumer Bankruptcy Attorneys
Member, National Association of Consumer Advocates

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Justice consists not in being neutral between right and wrong, but in
finding out the right and upholding it, wherever found, against the
wrong. -Theodore Roosevelt
 
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B

BETAC-T

Brett Weiss said:
3. If you filed a case in which you received a Chapter 7, 11 or 12
discharge in the 4 years before your current case was filed, you
cannot receive a Chapter 13 discharge in your current Chapter 13
case......

Please note that 3 and 4 apply only to your ability to receive a
discharge, not on your ability to file and receive the benefit of the
automatic stay in a Chapter 13. If you are trying to stop a
foreclosure and need time to pay a secured or priority debt in full,
you need the automatic stay much more than the discharge.
I remember reading in the past that people could do a "Chapter 20" -- not a
real Chapter but short for doing a Chapter 7, then a Chapter 13 right after
the Chapter 7 discharge. That was before the new law went into effect.

Does this mean that people can still do a Chapter 7 and then a Chapter 13
right after the 7 is discharged, but the Chapter 13 will allow a payment
plan to pay off the debts but 100% of those debts will have to be paid off?

I'm in New Jersey, but this is really just a general question on my part
about how the new law works.
 

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