If you've filed for bankruptcy before, you'll have to meet certain requirements before you'll be eligible to receive a debt discharge—the order that wipes out qualifying debt. In this article, you'll learn how to:
You'll qualify for another discharge if you meet the waiting period rules. Here's how it works.
Chapter 7 to Chapter 7. If you received a Chapter 7 discharge previously, eight years must elapse between the old and new filing dates.
Chapter 13 to Chapter 13. Two years must elapse between the two filing dates to receive a discharge in Chapter 13. Because a Chapter 13 repayment plan usually takes three to five years to complete, you'll likely be eligible for a second discharge after finishing the first case.
Chapter 7 to Chapter 13. Four years must elapse between the Chapter 7 and Chapter 13 filing dates. Chapter 13 has its benefits even if you don't receive a discharge, however. For instance, you can pay off priority debts, such as newly-incurred taxes or domestic support arrearages. Or, you can catch up on missed mortgage or vehicle loan payments and keep a house or car. Filing for Chapter 13 immediately after receiving a Chapter 7 discharge is commonly referred to as a Chapter 20 bankruptcy.
Chapter 13 to Chapter 7. If you received a Chapter 13 discharge and you'd like to receive a Chapter 7 discharge, you'll have to wait six years between filing dates. But there is an exception to this rule. The six-year rule won't apply if, in the previous Chapter 13, you paid back:
Even if you wait the appropriate amount of time to qualify for a discharge, you aren't necessarily in the clear. If the court dismisses your new case and you want to refile soon after that, you should expect penalties to attach.
If you do something wrong intentionally (as opposed to making an innocent mistake like forgetting to file a form), the bankruptcy court can punish you by prohibiting you from filing another bankruptcy case for a specific amount of time. In such cases, the court dismisses your case "with prejudice" (as opposed to "without prejudice.")
Failing to obey a court order will likely result in the court dismissing the case with prejudice. Filing multiple matters with the intent to delay creditors, voluntarily dismissing a bankruptcy after a creditor filed a motion for relief from the automatic stay, or otherwise trying to abuse the bankruptcy system will also be problematic. Expect the court to order you to wait 180 days before refiling another case in these situations.
If the court dismisses your bankruptcy case and you file another case within one year, the automatic stay in the new matter would be limited to 30 days. If you had two or more dismissals within one year of your new bankruptcy, you wouldn't receive the benefit of the automatic stay.
In either situation, the remedy is to file a motion asking the court to order or extend the automatic stay in your current case. You'll need to explain why doing so would be fair in the present matter.
If you want to extend the automatic stay, you must file a motion with the court. In your motion, you'll explain why your previous bankruptcy was dismissed and why the court should extend the stay in your current case. You'll have to prove that you filed the subsequent bankruptcy in good faith (not merely to delay or defraud creditors).
The specific procedures for filing a motion to extend the automatic stay depend on the rules in your jurisdiction. But the following are typically the most common steps you must take:
Find and complete the appropriate forms. Each bankruptcy district has forms for specific motions and notices. Check with your local bankruptcy court to find all paperwork related to motions to extend the automatic stay. But be aware that your jurisdiction may not have a standard form to fill out. In that case, you will have to create the motion and declarations. You can find your court's website using the Federal Court Finder tool.
Obtain a hearing date and file the motion. In most cases, you will need to obtain a hearing date from the court before filing the motion (the procedures will vary depending on where you live). Keep in mind that the filer must complete the hearing before the stay expires, so typically you must file your motion immediately after filing your case. You'll tell the court why your first bankruptcy was dismissed and explain why this case is filed in good faith. Then you'll serve the paperwork on the bankruptcy trustee and your creditors (most courts will have a standard notice form for motions to extend the stay).
Attend the hearing if necessary. If a creditor or other party in interest opposes your motion, be prepared to argue your case in front of the judge. However, if there is no opposition, the court may grant your motion through a tentative ruling and take the hearing off calendar. Make sure to review all documents received from the court and attend the hearing unless the court excuses your appearance.