Can you file bankruptcy if you filed before?

Victoria MaydanikBefore you file bankruptcy Leave a Comment

Yes, as long as the previous case has been closed.

However, you many not have the full benefits of bankruptcy protection and bankruptcy discharge, depending on how long ago you filed previously, how many previous cases you had, whether the previous case was Chapter 7 or Chapter 13, and whether it was completed successfully.

The first issue is whether you have bankruptcy protection when you file the new case. If you do, the court will impose automatic stay against collection activities by creditors, such as foreclosures, garnishments, lawsuits and more. If you don’t have the stay, the creditors usually still have a green light to proceed.

If this is your first time filing the case within the last 12 months, you have the automatic stay against creditors’ collection actions. If you had another case that was dismissed (not completed successfully), then the automatic stay is limited to 30 days. It may be extended if you submit a proper request to the court, and explain why the previous case did not work out. If you filed more than one other case in the last 12 months that was dismissed, there is no automatic stay.

The reason for this rule is that the court has limited resources and does not want to be getting multiple petitions from the same person within a short time frame. Multiple petitions usually indicate that important documents were not presented to the court or were not presented correctly, or the person failed to follow orders of the bankruptcy court. Additionally, multiple bankruptcy filings may prejudice the rights of creditors, which the court also does not see as being fair. The court does not want someone to file a bankruptcy petition as a quick fix to temporarily stop a creditor, but wants the bankruptcy case to be a fair and reasonable solution, and to be successfully completed.

For this reason, it is important to make sure that your bankruptcy petition is correctly submitted the first time you file, and that you fully understand requirements of the bankruptcy court, and know what you need to do to make sure the case is successful.

The second issue is whether you are able to get your debts discharged in a new case. If your debts have already been discharged (cleared through bankruptcy) recently, the answer is “no” although you may have other good reasons to file a case, for example, to catch up on mortgage or repay tax liabilities. How recent is too recent? If you got a discharge in a Chapter 7 case that was filed within the last eight years, you will not qualify for a new Chapter 7 discharge yet. If your previous case was a Chapter 13 or if you are planning to file a Chapter 13, you don’t have to wait as long and have more options available to you.

Don’t automatically rule out Chapter 13 as an option, even if you filed Chapter 13 before and it was not successful. A Chapter 13 payment does not have to be high or burdensome. A properly prepared Chapter 13 petition shows all of your household expenses, accounts for income variations or instability, and proposes a payment that should be doable for you to make.

If you are considering filing bankruptcy, discuss your financial situation in detail with an attorney and be sure to provide complete information about your household’s income, assets and expenses so that your petition is prepared correctly. Don’t rush to file – it’s better to make sure all required documents have been assembled and prepared correctly, than to have to come back to court with another case.

Beware of “same-day”, lightning-speed bankruptcy filings – while it’s possible to file the petition the same day you come in, it is generally impossible to file a petition that’s complete, accurate, and has a good chance of success in this time frame.

If you have an emergency, such as a lawsuit or pending wage garnishment, you would likely save time and money and have a better chance of success in the bankruptcy case if you don’t delay contacting an attorney to discuss your concerns.

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