Dismissing Ch 13 & Filing Ch 7 in Middle District of Fl..how long

[jasonfsu002]

We are in the Middle District of Florida:

If we wish to voluntarily dismiss our Ch 13 case, and file under Chapter 7, is there a waiting period, or can we immediately re-file under Chapter 7, given we are under the median income...?

We were denied confirmation of our plan because we are surrendering our home, but still living here during the foreclosure process. Our trustee filed a unfavorable confirmation of plan and requested that we pay what we would be paying in our mortgage into our plan. This is impossible for us, however, as we are trying to save money to move. We are thinking about dismissing our Ch 13 plan and re-filing a Ch 7.

Does anybody know how long you have to wait, or is there a wait? Can you file immediately if you are surrendering the property? Thanks!!!

[SMinGA]

My - limited - understanding is that if you dismiss due to objections/adversarial proceedings there can be a 6 month waiting period. But if its purely voluntary, then no waiting. Since you are not yet confirmed, I am not sure how that would go. Its not uncommon, afterall, to have some back & forth work with the trustee about how the plan is developed. Check with your atty ASAP.

[justbroke]

SMinGA hits on one of the points that is important. If you had a relief from the automatic stay pending when you filed for a voluntary dismissal, the Court, trying to prevent serial filings to "stay" foreclosure actions, will generally grant the dismissal but it won't be valid for up to 6 months so that the lender can proceed to foreclosure. If you filed through an attorney, your attorney can usually negotiate with the Trustee and lender to get an immediate dismissal so that you may refile. The problem, in this particular case, is that the Trustee is already upset so getting the Trustee to agree may be problematic.

How about a conversion to Chapter 7? You have an absolute right to convert your Chapter 13 case to a Chapter 7 case if you are qualified. If your original B22C (Chapter 13 Means Test) showed a negative DMI (or one under $182.50 for the most part), you should be able to convert with no problems.

What is your attorney telling you?

[researchnerd]

justbroke beat me to it...is there any reason you can't convert your 13 to a Ch7? This is what we're doing - we had a change in circumstances (DH's unemployment ended) and now we have negative disposable income. The attorney is charging us a bit extra, but it's definitely easier and quicker than dismissing and then re-filing.

[SMinGA]

From his original posts - I am guessing they need to dismiss a joint ch. 13, and that his wife will file a solo ch. 7. He is not eligible for 7 for 2 more years.

[justbroke]

You should be able split the case. Then the wife can convert her case.

[jasonfsu002]

Sorry for the delay in response...

Thanks for all the great responses. I cannot file a Ch 7 until 2012, b/c I filed in '04. I hate to say it but I did so b/c of some old c/c debt from when I was in college, and my wife and I wanted to start looking at buying a house...seemed like a good idea at the time. Now that we are in worse shape then we were then, I doubt it..hind sight is 20/20.

We wanted to just drop her out of the ch 13, me stay in, and then file a Ch 7 for her. I didnt know how hard, impossible, or smart that was....

[jasonfsu002]

Justbroke:

My attorney said for both of us to stay in the 13 until I can convert in a year and a half, and then dismiss the 13, and both file a 7. Problem is that one of our car's is about to die, and we are having a real tough time getting financing for a replacement. Had hoped to convert my wife's case to Ch 7, and at least that way we can start rebuilding her credit again sooner.

[justbroke]

My attorney said for both of us to stay in the 13 until I can convert in a year and a half, and then dismiss the 13, and both file a 7.

You can't convert. Since you have a discharged Chapter 7 case from 2004 you can't file a Chapter 7 until 2012. You would need to dismiss your Chapter 13 and refile.

Had hoped to convert my wife's case to Ch 7, and at least that way we can start rebuilding her credit again sooner.

Sounds complex. I have no personal experience with splitting a case and then converting one of the cases to a Chapter 7 while the other enjoys Chapter 13. This is not a standard thing and will probably be expensive.

Just my opinion.

[jasonfsu002]

Justbroke:

Thanks for the input, you know what you are talking about. However, I wouldn't say that it I would enjoy the Ch 13. I would much rather file the Ch 7 and be done with it. My wife has suffered the brunt of our credit related misfortunes. She never had any issues, and our credit was great until I lost two good paying jobs in a period of two and a half years...that is the only reason we had to file.

We are giving up two houses, and I have if we stay in the Ch 13, will have no credit for 5 years. Our plan payment covers attorney fees, trustee fees and $2000 or so to unsecured creditors, but my wife is giving back an investment property in her name with $50K in equity and a our primary house that we put around $20K into fixing up when we bought, even though we are almost $100K upside down in it now. I know, join the rest of the country...I am just saying neither route was the way we wanted to go, but we are trying to protect our interests at this point in time.

Our lawyer said that he can file her Ch 7 for $995 plus filing fees, but if anything arises out of the ordinary, it is like $300 per hour...

I just think it sucks that two working adults cannot even afford to go broke...

We know there is no quick recovery, but are just trying to think of the best case scenario. Thanks again....

[jasonfsu002]

Justbroke:

Thanks again for the info, you seem to know what you are talking about. Just the same, I would not say that I would enjoy the Chapter 13. I would just assume be able to file the Ch 7 and be done with it. I feel bad b/c my wife has suffered the brunt of our recent credit misfortunes. She had had no prior filings, and both our credit reports were fine until I was laid off of two good paying jobs in a period of just less than three years.

Our attorney worked out our Ch 13 plan so that repayment over 60 months covered his fees, the trustee fees and around $2000 to unsecured creditors. We are giving back a rental property in my wife's name that has around $50K in equity, and our primary house that we dumped around $20K when we bought it to fix it up, even though we are almost $100K upside down in now...I know, join the rest of the country.

We are just trying to speed up the credit repair process, as 60 months in the Ch 13, with no access to any type of credit, is a scary thought, especially with a young child in the event of some type of medical emergency....

Our attorney said that he could file my wife's Ch 7 case for $995 plus filing fees, but if anything out of the ordinary were to occur, it is like $300 per hour. We may stick with the plan we have now, but wanted to know what everyone's input was.

I guess we just feel it is a shame that two hard working parents cannot even afford to go broke if they need to.

Thanks again for all the input, would love to hear what anyone else is thinking...

[jasonfsu002]

Thought the first one didn't post, my memory is not as good as I thought it was...tried to duplicate the 1st response...kinda close I guess...thanks again.

[justbroke]

I wrote "enjoys Chapter 13", but forgot the smiley face!