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Need a BK question answered please....

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  • Need a BK question answered please....

    Can you file a new chapter 7 case while in an active chapter 13 BK with 6 months to go on it? I have filed a chapter 7 back in 4/2009, I’m in a mess here. Any advice would help.

  • #2
    You cannot have two active cases at the same time. I'm guessing, only, that you couldn't file a Chapter 7 back in 2013 so you filed a Chapter 13. now you're at the end of the Chapter 13 and need to file a Chapter 7. Your other issue is that a conversion won't work because you would not be eligible for a Chapter 7 discharge in a converted case (because they go by the filing of the original Chapter 13 in 2013).

    Your only real option would be dismiss and refile. However, you should consult with an attorney to make sure any special things that may need to be done -- such as first day motions -- are handled correctly in the Chapter 7.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      So I assume that once my 13 case is paid and dismissed I would then be able to file s new ch 7? What a mess I’m in here.

      Comment


      • #4
        You are dealing with very specific rules on when you can file a second or subsequent bankruptcy case. If your Chapter 13 case is dismissed (not discharged) then you could file a Chapter 7 case immediately (and may need to do some first-day motions). If your Chapter 13 case is discharged, meaning that you paid what you were to pay, and then closed, you would be precluded from obtaining a discharge in a Chapter 13 case for some number of years. The exception to this would be if you paid back all the allowed unsecured claims or at least 70% with some good-faith requirements.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


        • #5
          So once my ch 13 is discharged, it’s a 60 month plan, than I can immediately file a 7? Thanks

          Comment


          • #6
            You would not be able to obtain a discharge in a Chapter 13 and then file a Chapter 7 immediately. There are rules on "subsequent" (a/k/a serial) filings of bankruptcy cases. If your Chapter 13 case was dismissed (never obtained a discharge) then you could file a Chapter 7. If your case is discharged and you are relieved of your debts, then you can't file a Chapter 7 until 6 years after the filing of the Chapter 13 (which means that you could file 1 year after you obtained your discharge in the Chapter 13).

            These rules are specifically to prevent serial filing such as you are contemplating.
            Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
            Status: (Auto) Discharged and Closed! 5/10
            Visit My BKForum Blog: justbroke's Blog


            I am not an attorney. Any advice provided is not legal advice.

            Comment


            • #7
              Ok thank you for the information, I have an appointment with an attorney on Tuesday and will ask them if I can just discharge the chapter 13 case with 6 payments to go and file immediately for a chapter 7. My only concern here is my vehicle which is part of the chapter 13 case, it’s an older 2010 vehicle which I had financed, just don’t want to lose my car.

              Comment


              • #8
                The vehicle has been paid in the chapter 13 case but my attorney on that case has advised that the lien holder won’t release title until the case is discharged.

                Comment


                • #9
                  It is likely that your vehicle was a cramdown which means that you paid the secured portion but not the unsecured portion of the debt. You may need to deal with this if you dismiss and then refile as a Chapter 7. These are things you'll need to ask your attorney or visit the National Data Center to see how much was unsecured.

                  Chapter 13 National Data Center: www.ndc.org

                  Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                  Status: (Auto) Discharged and Closed! 5/10
                  Visit My BKForum Blog: justbroke's Blog


                  I am not an attorney. Any advice provided is not legal advice.

                  Comment


                  • #10
                    Thank you for the response. Any idea if this cram down matter can be discharged in a 7 so that I can keep my car?

                    Comment


                    • #11
                      You can't cramdown in a Chapter 7. As I wrote, you should check the NDC or ask your attorney about how much of the value was unsecured and dischargeable. You may have already paid off the secured and unsecured portions since you are 6 months from discharge in the Chapter 13.
                      Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                      Status: (Auto) Discharged and Closed! 5/10
                      Visit My BKForum Blog: justbroke's Blog


                      I am not an attorney. Any advice provided is not legal advice.

                      Comment


                      • #12
                        I assume though if I discharge my 13 and refile a 7 that I’m able to add new debts to the case? Forgot to ask that.

                        Comment


                        • #13
                          Originally posted by psa10 View Post
                          I assume though if I discharge my 13 and refile a 7 that I’m able to add new debts to the case? Forgot to ask that.
                          You cannot file a Chapter 7 immediately after filing a Chapter 13 unless you fit a very narrow exception (you paid 100% or at least 70% with good faith). I haven't read that you fit any of the very narrow exceptions. Otherwise, you must wait at least 1 year to file a Chapter 7 after a Chapter 13 discharge. If you receive a Chapter 13 discharge, then the subsequent Chapter 7 is not a "refile" as it is simply a new filing. A refile occurs when you're in an active Chapter of bankruptcy and decide to let the case dismiss so that you can refile under better conditions.

                          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                          Status: (Auto) Discharged and Closed! 5/10
                          Visit My BKForum Blog: justbroke's Blog


                          I am not an attorney. Any advice provided is not legal advice.

                          Comment


                          • #14
                            Having an absolutely bad day here.... had an appointment at 10am with a bankruptcy attorney, I pull into the parking lot and get a call from the paralegal saying the attorney was stuck in court and not able to see me until 11am. Am unable to do that as I have work to go to, wasn’t too happy with the attorney. I now have a consultation on 1/4 with a different attorney. I am going crazy as I’ve really got myself into a bad financial situation here. I just want to be able and dismiss this 13 I’m in and just refile everything under chapter 7. Is this a possibility? My ch 13 was for $18000 and now I’ve got myself involved in more than $70000 of new debt here. I was told by one attorney that I’m not supposed to be taking on new debt while in ch 13, I didn’t know this and why isn’t any blame being placed on these creditors? Didn’t they review my credit report? Am I going to be able to get rid of this debt or am I just screwed here? Happy Holidays to me. ):

                            Comment


                            • #15
                              There is never blame on creditors for extending credit for which you apply and then agree to payback in accordance with the contract (terms and conditions). It should have been very clear in your Confirmation Order as to whether you can obtain any new debt that is not "in the ordinary course" of business.

                              The question now would be whether dismissing and refiling as a Chapter 7 will work for two reasons. First, do you otherwise qualify for a Chapter 7 discharge because you do not have enough money to pay the unsecured creditors some dividend (a/k/a the Means Test). Second, and probably the most interesting here, is whether there is a question of "good faith" in your filing a Chapter 7.

                              I don't understand your (implied/inferred) reasoning that you should be able to get rid of this new debt. You incurred the new debt knowing that it should be paid, yet you want to include it in your bankruptcy or add it to a new bankruptcy. As you have learned, this is exactly why most bankruptcy Confirmation Orders strictly forbid the debtor from incurring more debt. It's a no win situation.

                              As I have always written, a Chapter 13 bankruptcy will never work for anyone that refuses or is unable to budget. That also means that it won't work for someone who has an underlying problem with incurring debt while not being able to budget. It's a touch reality, but you may now be learning why as many as 70% (or more) of Chapter 13s fail. The budgeting part is the most important piece, and the Trustee depend on the debtor not incurring more debt (some allow for up to $5,000 of new debt) is detrimental to the rehabilitation (reorganization) of the debtor.

                              None of this is pointedly at you and I don't blame you, as many have problems with maintaining a budget (an inability to budget). I learned from bankruptcy that I don't have to buy presents for everyone for every occasion, and those gifts can be small. I learned that not accruing more debt and staying on budget are important regardless of being in a Chapter 13 bankruptcy.

                              I don't have all the answers for you, but I want to encourage you to understand why there are so many rules against incurring debt while in a Chapter 13. You may be a compulsive buyer and bankruptcy is never going to fix that. If most of the $70K in new debt is medical, that shouldn't raise any flags or questions of good faith.
                              Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                              Status: (Auto) Discharged and Closed! 5/10
                              Visit My BKForum Blog: justbroke's Blog


                              I am not an attorney. Any advice provided is not legal advice.

                              Comment

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