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Serial Filing Of Bankruptcy Cases

This topic discusses the result when a debtor files more than one bankruptcy.

Table of contents for this topic:

Statutory rules

Date of filing

As a general rule, conversion from one chapter to another does not change the original filing date.(1)

First case a Chapter 7

Dismissed within 180 days

If Chapter 7 dismissed within 180 days of next case and was either (a) voluntarily after relief from stay motion filed or (b) because debtor willfully failed to follow court orders then cannot file. 11 USC 109(g)

Dismissed within one year

Only prior case. If Chapter 7 dismissed within one year of next case and only prior case then stay is automatic for only 30 days.(2) 11 USC 362(c)(3)

This limitation does not apply if (a) the Chapter 7 was dismissed under 11 USC 707(b) or (b) the second case is a Chapter 12.

Not only prior case. If Chapter 7 dismissed within one year and not the only prior case dismissed within one year then there is no automatic stay.(3) 11 USC 362(c)(4).

Chapter 7 cases dismissed under 11 USC 707(b) do not count in determining whether two or more cases have been dismissed within the past year.

Filed within four years

If Chapter 7 filing within four years resulted in a discharge then no Chapter 13 discharge. 11 USC 1328(f).

Filed within eight years

If Chapter 7 filing within eight years resulted in a discharge then no Chapter 7 discharge.(4) 11 USC 727(a)(8).

First case a Chapter 11

Dismissed within 180 days

If Chapter 11 dismissed within 180 days and was dismissed either (a) voluntarily after relief from stay motion filed or (b) because debtor willfully failed to follow court orders then cannot re-file. 11 USC 109(g)

Dismissed within one year

Only prior case. If Chapter 11 dismissed within one year and only prior case then stay is automatic for 30 days.(5) 11 USC 362(c)(3).

This limitation does not apply if the second case is a Chapter 12.

Not only prior case. If Chapter 11 dismissed within one year and not the only prior case dismissed within one year then no automatic stay.(6). 11 USC 362(c)(4).

Chapter 7 cases dismissed under 11 USC 707(b) do not count in determining whether two or more cases have been dismissed within the past year.

Filed within four years

If Chapter 11 filing within four years resulted in a discharge then no Chapter 13 discharge. 11 USC 1328(f)(1).

Filed within eight years

If Chapter 11 filing within eight years resulted in a discharge then no Chapter 7 discharge. 11 USC 727(a)(8)

First case a Chapter 12

Dismissed within 180 days

If prior Chapter 12 case dismissed within 180 days and was dismissed either (a) voluntarily after relief from stay motion filed or (b) because debtor willfully failed to follow court orders then debtor cannot re-file. 11 USC 109(g).

Dismissed within one year

If prior Chapter 12 case dismissed within one year and and not the only prior case dismissed within one year then there is no automatic stay.(7) 11 USC 362(c)(4).

Chapter 7 cases dismissed under 11 USC 707(b) do not count in determining whether two or more cases have been dismissed within the past year.

Filed within four years

If prior Chapter 12 filing within four years resulted in a discharge then no Chapter 13 discharge. 11 USC 1328(f)(1).

Filed within six years

If prior Chapter 12 filing within six years resulted in a discharge then no Chapter 7 discharge. This limitation does not apply if 70 percent of claims paid in prior case. 11 USC 727(a)(9).

First case Chapter 13

Dismissed within 180 days

If prior Chapter 13 case dismissed within 180 days and was dismissed either (a) voluntarily following a relief from stay motion or (b) because debtor willfully failed to follow court orders then cannot file. 11 USC 109(g).

What does "following" relief from stay motion mean? Judge Wedoff explains in In re Payton:

The parties’ positions on the meaning of “following” in 109(g)(2) mirror a conflict in the published decisions. Most of these decisions agree with the trustee, holding that “following” in 109(g)(2) means only “subsequent to” or “later in time.” The leading case among these “time-sequence” decisions is In re Andersson, 209 B.R. 76, 78 (6th Cir. BAP 1997); others are collected and discussed in Ned W. Waxman, Judicial Follies: Ignoring the Plain Meaning of Bankruptcy Code 109(g)(2), 48 Ariz. L. Rev. 149, 152-57 (2006). Another group of decisions, however, interprets “following” in 109(g)(2) as Payton contends, holding that it means “resulting from.” These “causation” decisions include In re Durham, 461 B.R. 139, 142 (Bankr.D. Mass. 2011), which collects decisions with the same interpretation.

Dismissed within one year

Only prior case. If prior Chapter 13 case dismissed within one year and is the only prior case within that time then the stay is automatic for only 30 days.(8) 11 USC 362(c)(3).

This limitation does not apply if the second case is a Chapter 12.

Not only prior case. If prior Chapter 13 case dismissed within one year and not the only prior case dismissed within one year then no automatic stay.(9) 11 U.S.C. 362(c)(4).

Chapter 7 cases dismissed under 11 USC 707(b) do not count in determining whether two or more cases have been dismissed within the past year.

Filed within two years

Note: The statute literally says "filed" but some courts construe that text to mean "discharge granted."

If prior Chapter 13 "filed" within two years then no discharge if next case is a Chapter 13. 11 USC 1328(f)(2).

Filed within six years

If prior Chapter 13 filed within six years and resulted in a discharge then no Chapter 7 discharge. This limitation does not apply if 70 percent of claims paid in prior case. 11 USC 727(a)(9).

Good faith

Serial filings may negatively affect a Court's determination regarding the debtor's good faith.

See also

Footnotes

Notes

1 : 11 USC 348.

2 : In cases in which the semi-automatic (11 USC 362(c)(3)) or manual (11 USC 362(c)(4)) stay apply the debtor can ask the court to extend or impose the 11 USC 362(a) stay. With regard to the semi-automatic stay the court must act within 30 days of the date the case was filed. 362(c)(3)(B). In the case of the manual stay the motion must be made within 30 days of the date the case was filed. 362(c)(4)(B).

3 , 5 , 6 , 7 , 8 , 9 : See Footnote 1

4 : Consider a Chapter 13 hardship discharge for a client in a failing Chapter 13 that was filed between the four and eight year mark (and, if converted, would not lead to a Chapter 7 discharge). 11 USC 1328(b).


Topic revision: r7 - 13 Feb 2013, WikildBStaff5
 
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