I spoke with another lawyer today for a consult and one of the concerns he expressed was the possibility of my not having enough disposible to fund a chapter 13. What happens in this case? He said it is possible on my income to maybe only have a 5-10% payback. I don't know if I can wait for the consult to find out. What would happen, especially if I can not file chapter 7 since I filed 5 years ago?
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Then you are at the mercy of your creditors.
For a chapter 13, you have to have "some" disposable income to pay into plan. (it really does not matter what your % payback is).
There are only 2 factors that determine how much is paid in your chapter 13 (and neither have to do with the amount or number of claims/creditors)
1. Your disposable income. Do you have any money left over after paying necessary expenses to fund a plan (generally, most trustees like to see at least $100 per month).
2. Liquidation value of your BK estate. This aspect of the test asks, hypothetically, how much would your creditors get if you filed chapter 7 (i.e. are there any non-exempt assets). Unsecured creditors must at least get as much in a chapter 13 as they would in a chapter 7.
If, for whatever reason, you do not qualify for chapter 13, you are SOL as far as BK goes and are at the mercy of your creditors for another 3 years.
Note, its not that you can't "file" chapter 7, its only that you would not receive a discharge if you received a chap. 7 discharge within the last 8 years. -
1. Your disposable income. Do you have any money left over after paying necessary expenses to fund a plan (generally, most trustees like to see at least $100 per month).
I believe I have enough to fund a plan..i am now paying 700 dollars a month and i am robbing peter to pay paul and cutting back excessively on everything to do the 700, but i am doing it. I am just afraid the lawyer will not see it that way when he does the figuring. Will they take my word that i can do it, say even if it is just 100 dollars?
Note, its not that you can't "file" chapter 7, its only that you would not receive a discharge if you received a chap. 7 discharge within the last 8 years.[/QUOTE]
what happens if you file and can't get discharged because of the timelines, is the BK dismissed or what happens for those 3 years?
this board is so helpful and I know I worry excessively, it just raised a red flag when he spoke about not having enough disposible income...Comment
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Filing a chapter a 7 before you're eligible is only a tactic to buy some time to prevent imminent collection (i.e. foreclosure, etc). Basically, what happens is, you file chapter 7, the automatic stay goes in effect preventing any collection activity; you have your 341 meeting, the creditors get 60 days to object, and if you are no asset case, the case closes (but is NOT discharged). Once the case closes, the automatic stay is lifted and you are back to square one.
The lawyers numbers are based off of what YOU tell them. So, I would not worry about that too much. If you want to be in a chapter 13 plan, trust me, a lawyer will find away. After all, lawyers get paid much higher fees for a chapter 13 than a chapter 7.Comment
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