If I Filed Bankruptcy Before, How Soon Can I File Again?

Getty Images

Sometimes it just can't be helped. You file a Chapter 13 case, do well making your payments for a year or two, then chaos reigns. Perhaps you lose your job, get sick or find that you just cannot keep up the payments. 

Or, maybe you filed a Chapter 7 case years ago, received a discharge, but find yourself in financial difficulty again.  

You want to know how long you must wait to file again. Federal bankruptcy law limits the frequency of bankruptcy filings, and even if you are allowed to file a case, one of the benefits of that filing - the automatic stay - may be restricted or delayed.

I got a bankruptcy discharge years ago. How soon can I file again?

How soon you file depends on the type of bankruptcy you filed earlier and the type you're filing this time. Here's a chart that explains it.

From One Discharged Case to the Next
Earlier CaseNext Case  Time Limits
Chapter 7  Chapter 7  Must wait 8 years after filing earlier case.
Chapter 13  Chapter 13  Must wait 2 years after filing earlier case. Since most Chapter 13 cases that result in a discharge last more than 2 years, as a practical matter, most people can file a new Chapter 13 case immediately after they receive a discharge in a Chapter 13 case. 
Chapter 7Chapter 13  Must wait 4 years after filing earlier case.
Chapter 13Chapter 7  Must wait 6 years after filing earlier case, unless the Chapter 13 payment plan was proposed in good faith, was a best effort and paid at least 70% of the unsecured claims

 

My Chapter 13 case was dismissed. How soon can I file again?

Another circumstance arises when you file a Chapter 13 case but are unable to complete the payments. When that happens, you will not usually be granted a discharge of your debts (unless you are eligible for and request a hardship discharge.) Instead, your case will be dismissed.

Usually, if your Chapter 13 case is dismissed, you can file another case right away.

 For strategic reasons, some debtors will file and dismiss several cases in quick succession. The debtor, facing a threat to property, files the bankruptcy case to stop a repossession or foreclosure. When the threat passes, the debtor will either ask the court to dismiss the case, or more likely will just stop making plan payments, which will result in a dismissal. When the creditor renews its collection efforts, the debtor will file a new case. To combat debtors who game the system in this way, Congress included provisions in the Bankruptcy Code that allow debtors file new cases, but limits the scope of the automatic stay in such situations.

     One case pending within twelve months:

If you had one prior bankruptcy case pending within the previous twelve months that was dismissed, you can probably file a second case, but the automatic stay will last for only the first 30 days of the second case. Creditors will have to stop their collection actions, including foreclosure, repossession and the like, but only for 30 days. After that, the automatic stay will lift automatically unless you ask the court to extend it.

     Two cases pending within twelve months:

If you had two cases pending within the previous twelve months, you may be allowed to file a third case, but the automatic stay will not go into effect at all unless you ask the court to impose it.

If that is your situation, filing that third case will not stop foreclosures, repossessions, garnishments, lawsuits, letters, phone calls or whatever else a creditor has up its sleeve.  

   Ask the court to continue or impose the automatic stay

If you file successive cases as described here, you can ask the court to extend the stay or to put the stay in place. To determine if you deserve this relief, the court will look at several factors including:

  • the number of cases you filed

  • whether your cases were dismissed because of non-payment, error (yours or your attorney’s), failure to file required paperwork or failure to cooperate with the trustee

  • whether you dismissed your case after a creditor filed a motion for relief from the automatic stay (usually seeking permission to repossess a car or foreclose on a house)

  • whether your circumstances have changed since your previous case was dismissed

 

I Have Filed Several Cases Over Several Years. Can I File Again? 

Even if your prior cases were more spread out than just the last twelve months, you may not be home free. Your bankruptcy trustee, the Office of the US Trustee (a component of the Justice Department) and your creditors will scrutinize all your prior cases to determine if you are trying to take advantage of the system. Take for instance this example: 

Dave and Margaret filed a Chapter 13 case in 2015. Prior to this case, they had filed before. Here’s a list of Dave and Margaret’s cases:

  • 2004, Chapter 7 case; received a discharge
  • 20010, Chapter 13 case; case dismissed for failure to make plan payments
  • 2012, Chapter 13 case; case dismissed for failure to file required paperwork

In each case, the automatic stay was not affected, but after the latest case was filed, the Chapter 13 trustee asked the court to dismiss it for serial filing. Dave and Margaret will likely have to go into court and testify regarding the reasons for filing and dismissing each case. If the court allows the case to continue, it will probably be under the condition that if the 2015 case is dismissed, the couple will not be allowed to file another case for a period of time, which can often be a year or more.

If the court is particularly perturbed by their actions, the court could immediately dismiss the case with a provision that would prevent them from re-filing for a period of time. In certain egregious cases, courts have permanently enjoined a debtor from ever filing another bankruptcy case.

See for example In re Mac Truong, 14-13050, Southern District of New York.