I Need a Bankruptcy But Already Filed One a Few Years Ago
Oct. 12, 2015
If you need bankruptcy protection but already filed a case within the last few years, you may still be able to file a new one now.
You’ve likely heard that you have to wait a certain amount of time to file a bankruptcy case after having filed a previous one. But there are all kinds of unexpected opportunities here when we look more closely.
Previous Bankruptcy FILING vs. DISCHARGE
This can be a critical distinction: the rules about when you can file a new case turn not merely on whether a previous case was FILED but rather whether one was filed in which you received a DISCHARGE of your debts. The laws in the Bankruptcy Code about when you can file a new case refer to whether in the prior case “the debtor has been granted a discharge” or “has received a discharge.”
In other words, if your previous case was not successfully completed—if it was dismissed before you finished it—you would not be prevented from filing a case now. If your prior case did not result in a discharge of debts, you do not have to wait ANY period of time to file a new case.
Did You Definitely Get a Discharge of Debts?
So, if you’ve filed a previous bankruptcy case and are now having to consider filing a new one, make sure to find out whether you got a discharge in that previous case.
If you distinctly remember that your case finished the way it was supposed to, you very likely DID get a discharge. Then the timing rules we’re about to tell you about do apply. Otherwise, if there was no discharge in the previous case than you don’t have to wait, the timing rules don’t apply.
So definitely make sure to find out. Find out from the attorney who represented you in the previous case. Or look through your old paperwork to find the discharge order issued by the Bankruptcy Court, or instead an order dismissing your case without a discharge. Your new attorney can also likely find out for you what became of your previous case.
The Timing Rules
Assuming that you did receive a discharge of your debts in your previous case, here are the timing rules.
You may have heard that you have to wait 8 years between bankruptcy filings. But that length of time only applies to one out of a number of possible scenarios: the length of time from the filing of the previous discharged Chapter 7 “straight bankruptcy” case to the filing of a new Chapter 7 case. (See Section 727(a)(8) of the Bankruptcy Code.)
However, if your previous case was a Chapter 7 one and you now want to file a Chapter 13 “adjustment of debts” case, the length of time is only 4 years. (Section 1328(f)(1).)
Or if your previous case was a Chapter 13 one and you now want to file a Chapter 7 case, the length of time is only 6 years. And in fact if that previous Chapter 13 case was one in which through your payment plan you paid your unsecured creditors 70% or more of what you owed, then you don’t have to wait at all to file a Chapter 7 case afterwards. (See Section 727(a)(9).)
And if your previous case was a Chapter 13 one and you now want to file a Chapter 13 case, the applicable length of time is only 2 years. (See Section 1328(f)(2).)
The Clock Starts Running at the Previous Case Filing NOT the Discharge
The event that triggers the start of all these time periods is the filing of the previous case, not the subsequent discharge in that case. The discharge comes at or near the end of a case. The filing is at the very beginning of the prior case.
Take the example of the above 6-year rule for filing a Chapter 7 case after a previous Chapter 13 one. If that previous Chapter 13 case was filed on October 1, 2009, and it took 3 years to complete so that the discharge was entered in October 2012, you would be able to file a Chapter 7 case starting October 1, 2015, 6 years from the filing date (regardless when the discharge was entered).