1693120When can you file bankruptcy again if you have previously filed and received a discharge of your debts?

Recently, we have seen a slight uptick in the number of individuals seeking to file bankruptcy who have previously filed either a Chapter 7 or Chapter 13 bankruptcy case.   It is hard to know precisely why the increase is happening, but one reason may be that people who filed a Chapter 7 bankruptcy before the 2005 changes in the bankruptcy code went into effect, are once again eligible to file a Chapter 7 bankruptcy.

How long you must wait in between bankruptcy filings (if you want to receive a discharge in the new case) generally depends on three things: first, what type of bankruptcy you filed previously, second, did you receive a discharge in the prior case, and third, what was the filing date of the prior case (not the day the court entered the discharge.)

If, after consultation with your attorney, you decide that you now need to file a Chapter 7 or Chapter 11 bankruptcy case you must wait:

8 years from the filing date of a previous Chapter 7 or Chapter 11 case, if you received a discharge in the prior case.  If for some reason you did not receive a discharge in the prior case, you do not need to wait to file a new case usually. (There are rare exceptions to this rule, but for most people those exceptions do not come into play and your attorney will be able to help you understand if those exceptions apply to you.)

6 years from the filing date of a previous Chapter 13 case, if you received a discharge in the prior case.  Prior Chapter 13 cases also have some special rules that impact when you can file a new Chapter 7 case.  If you paid back 100% of the “allowed claims” in your prior Chapter 13 case, you do not have to wait any length of time to file a new Chapter 7 case and receive a discharge. (These so called 100% plans are rare.)  Other rare circumstances exist that allow for immediate filing of a Chapter 7 after a Chapter 13 case but are not discussed here.

If, after consultation with your attorney, you decide you now need to file a Chapter 13 bankruptcy case you must wait:

    •  4 years from the filing date of a previous Chapter 7 or Chapter 11 case, if you received a discharge in the prior case.
    •  2 years from the filing date of a previous Chapter 13 case, if you received a discharge in the prior case.  (This short time frame would be somewhat unusual and would generally only apply if the prior Chapter 13 case was a 100% plan.)

So what do these dates have to do with the recent uptick in bankruptcy cases? In the months leading up to October 17, 2005, there was a dramatic spike in the number of bankruptcy cases that were filed.  People were concerned that the new bankruptcy laws which took effect on October 17, 2005, might make it more difficult to file.  As a result, anyone who filed a Chapter 7 case in the months leading up to the change in the law, and received a discharge, has recently become eligible to file for Chapter 7 Bankruptcy protection.

Unfortunately for many of those people, they filed bankruptcy and received their fresh start just before the economy took a nose dive.  They have had to weather the storm until they became eligible for Chapter 7 bankruptcy relief again.

If you have a previously filed a bankruptcy case, but find yourself struggling and in need of help again, please contact our office for a free consultation.  We can help you navigate these somewhat confusing timing issues, and help you get back on your feet again.