A common question lately is “Can I file a new Chapter 13 bankruptcy case if my earlier Chapter 13 bankruptcy was dismissed.
The answer is probably.
There are only a few reasons why you could not file your case again and most of them revolve around abuse of the system. If your case has been dismissed with prejudice, you may not file bankruptcy again for 6 months without leave (permission) from the court.
Your case may also be dismissed with a bench order barring you from filing again for a year or longer. I did have a man in my office who had a lifetime bar from filing bankruptcy. I’m uncertain the Constitutionality of that, but if anyone deserved it, he did (he filed 8 cases in four year and literally held off foreclosure on his home for 5 1/2 years).
Also if you file a motion to dismiss (ask for your case to be dismissed) and it is granted, then you may not file again for six months without permission from the court.
Other than for the above mentioned reasons, you can (and sometimes should) file a new Chapter 13 bankruptcy case. I’ve even had trustees recommend to me to recommend to a few of my clients that they let the case get dismissed and refile so they can get another swing at the bat.
If you are using a bankruptcy to stop a sheriff sale, the sale will be stayed (stopped), but there are other issues to be resolved in a second bankruptcy case filed within a year.
In the second bankruptcy case filed within a year, the automatic stay only lasts for 30 days. Your attorney must file (and do it quickly) a motion to extend the automatic stay beyond 30 days. The rules for this motion can be found at 11 U.S.C. § 362(c)(3)(b).
Essentially this is a motion to ask the court to keep the automatic stay in place (stop the bank from foreclosing) as if this was the first case. The standard the court has to see is if this case is more likely to succeed than the previous case.
This is a high standard, after all if everything were going well your first case probably would not have been dismissed. I have filed four such motions, and in all the motions that have been filed, they have been granted, but not without some serious discussions with the bankruptcy judge.
Yes Virginia, you can file Chapter 13 bankruptcy after your first case is dismissed, but the road to confirmation is longer.
