Understanding Dismissals With And Without Prejudice
When the court dismisses a case without prejudice, you can file another bankruptcy matter right away instead of being required to wait. You can also discharge all qualifying debts in the next case. This type of dismissal usually occurs because of a procedural mistake, such as a failure to file the correct forms, not as a result of unethical behavior.
By contrast, a dismissal with prejudice will prevent you from filing another bankruptcy for a specific period, or forever prohibit you from discharging any of the debts existing at the time of your first filing. The court will dismiss a case with prejudice if you:
- try to take advantage of bankruptcy by hiding assets
- use the automatic stay to buy time without intending to complete bankruptcy, or
- abuse the bankruptcy system in some other way.
Responding To A Motion To Dismiss A Chapter 13 Bankruptcy
If a debtor fails to keep up with payments under their repayment plan in a Chapter 13 bankruptcy, the bankruptcy trustee may file a motion to dismiss their case. This means that their debts would not be discharged because the case would be considered unsuccessful. Fortunately, a debtor has an opportunity to object to this motion. They usually have just 21 days to respond, and it is critical to comply with this deadline.
A debtor responding to a Chapter 13 motion to dismiss might argue that the trustee is wrong, or they might argue that they can solve the problem. If they are arguing that the trustee is wrong, they should carefully document the reasons why the trustee is unjustified in seeking a dismissal. This might involve providing copies of pay stubs that show deductions from their wages to make payments, for example. If they are arguing that they can solve the problem, the debtor will want to propose a clear plan for addressing it. They might also explain why the situation that disrupted their payments was unforeseen and temporary.
Protecting The Petitioner During The Bankruptcy Process
As you move through the bankruptcy process, you are protected from your creditors by an injunction that is referred to as an automatic stay. This injunction is used to protect you from nearly all the collection activities that your creditors use. The automatic stay goes into effect the day that you file your case.
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Is Bankruptcy Right For You
If you filed for bankruptcy but had your case dismissed, you may be wondering if bankruptcy is actually the appropriate solution for your financial predicament. Our firm’s bankruptcy attorneys can review the details of your case, and help you understand your rights and options. If it turns out that bankruptcy is still the best way forward, we’ll refile your case and guide you through each and every step of the process.
Do you have questions about a dismissed bankruptcy case? Complete the contact form or give us a call at 757-637-0811 to request a free, no-obligation consultation with one of our firm’s bankruptcy attorneys.
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How Long After Chapter 13 Dismissed Can You Refile
If you refile your case within one year of your first cases dismissal, the automatic stay protecting you from actions by your creditors will last only 30 days. You can get this time period extended if you make a motion and have a hearing in which you demonstrate that your second filing is in good faith.
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How Many Times Can You File Bankruptcy
Learn more about the processes and procedures for refiling a bankruptcy.
We get many calls from prospective and previous clients confused about their options to refile for bankruptcy following the discharge or dismissal of a prior case. The common questions are:
How many times can you file bankruptcy? The time between bankruptcies varies depending on the type of bankruptcy your originally filed. You can generally re-file for a Chapter 13 bankruptcy every 2 years and a Chapter 7 bankruptcy every 8 years.
My case was successfully discharged but I need help again, what can I do?
Is there a certain period of time that I have to wait before I can file again?
Will I be penalized for re-filing?
Have the laws changed since last time I filed?
It can be complicated and unfortunately we have found that some attorneys are actually misinformed themselves about what the rules are for re-filing a Chapter 7 or Chapter 13 bankruptcy. There are a number of factors that go into how many times you can file bankruptcy. As long as you meet the income requirements and were not previously barred by the court, you should be able to refile after a few years. Continue on to read about the differences in refiling for Chapter 13 vs. Chapter 7 bankruptcies.
A Helping Hand
Schedule a free consultation with Acclaim Legal Service to discuss your questions with one of our qualified attorneys.
My Bankruptcy Case Was Dismissed Can I Refile
If youre filing for bankruptcy, then the odds are that youre going through a time of significant financial strife. So, its no surprise that learning your bankruptcy case was dismissed can constitute a serious blow.
Still, depending on the reasons for the dismissal, you may be able to refile your case immediately. Keep reading to learn about the various reasons that a bankruptcy case may be dismissed, along with what your options are for refiling.
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If The Court Dismisses Your Chapter 7 Or Chapter 13 Bankruptcy Case Without Prejudice You Can Refile Your Case Right Away
Updated By Cara O’Neill, Attorney
If the court dismisses your bankruptcy case without prejudice, you can file another bankruptcy caseright away, even. But you’ll typically have to fix your original mistakes before your second case is successful. Also, if you want to keep creditors at bay, you should plan to file a motion to extend or impose the automatic stay in your new case.
Read on to learn more about what happens if the court dismisses your case without prejudice and how the dismissal can affect the automatic stay in your next bankruptcy filing.
For more information about what to do if the court dismisses your bankruptcy, see When Your Bankruptcy Case Is Dismissed.
Losing Automatic Stay Protection In Chapter 13
Bankruptcy courts frown on serial bankruptcy filings because of the potential to abuse the automatic staythe order that stops most creditor collection actions. If you file a new case within one year of the previous case’s dismissal, the automatic stay will last only 30 days unless you successfully motion the court for an extension.
Because the motion can be costly and could fail, consider another approachproposing a well-thought-out repayment plan that’s unlikely to draw an objection from the trustee and creditors. Once the court confirms the plan, the plan itself will bind your creditors to its terms, preventing them from taking action against you as long as you remain in compliance. You won’t need the automatic stay any longer.
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Why Do Some Bankruptcy Cases Get Dismissed
Failing to comply with any of the responsibilities assigned to bankruptcy petitioners by the Bankruptcy Code jeopardizes the case. The risk of dismissal is one of the reasons it is essential that petitioners work with an experienced bankruptcy attorney. If a bankruptcy case is dismissed , the automatic stay disappears, and creditors are free to seek payment again. Working with an experienced attorney and adhering to the bankruptcy rules should be enough to keep your case from being dismissed by the court. But what happens if your case does get dismissed? Can you refile?
What Is Discharge In Bankruptcy
A bankruptcy discharge refers to the order of the bankruptcy court, issued at the end of a bankruptcy proceeding, which releases a debtor from personal liability for certain types of debts . A debtor who successfully completes a bankruptcy proceeding cannot be legally required to pay any debts subject to the bankruptcy discharge.
Any creditor holding those debts cannot take any legal action to collect those debts and cannot communicate with the debtor regarding those debts. Most unsecured debts fall under a bankruptcy discharge order.
In Chapter 7, the bankruptcy court will issue the discharge at the end of the time period for creditors or other interested parties to file an objection to the discharge or to the bankruptcy petition, usually about three to four months after the initial filing of the bankruptcy petition. Occasionally the discharge is delayed past that time frame. In individual Chapter 11 bankruptcies and in Chapter 13 bankruptcies, the court will grant discharge upon satisfaction of the repayment plan, which generally lasts anywhere between three and five years.
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Can You Refile For Ch 13 After A Dismissal
Often times, you can refile for bankruptcy immediately after dismissal. That means going through the process again, hoping for a discharge. While declaring bankruptcy might offer debt relief, it does serious damage to your credit.
A ch 13 bankruptcy sinks your credit score by over 100 points & stays on for up to 10 years. Having poor credit affects your eligibility for qualifying for loans. The ones available often come with expensive high-interest rates. Luckily, you can start rebuilding your credit. The easiest way is w/help from a pro like Credit Glory.
What Is A Motion To Dismiss For Material Default
If you miss payments, a Chapter 13 trustee can file a Motion to Dismiss for Material Default. If this motion is granted, your case would be dismissed. If your case is dismissed, you will not get a discharge. So you can see why you need to get ahead of this.
Most trustees will not file a Motion to Dismiss for one missed payment. So if you can catch up on that missed payment before your next payment is due, you should ordinarily be ok. If you get two months behind, many trustees will file the motion. If you get three months behind, almost all trustees will file the motion. This is not a license to miss payments. Every payment you miss makes the problem harder to solve. You need to be proactive and speak with your Chapter 13 attorney as soon as you know this will be an issue.
When a trustee files a Motion to Dismiss, the court schedules a hearing. If you do not resolve the issue with the trustee prior to the hearing, the bankruptcy judge will expect an explanation from you as to why you missed your payments. The judge would then decide if your case should be dismissed or whether another solution is appropriate.
If a Motion to Dismiss is filed in your case, it is always best to resolve the Motion ahead of time.
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Do You Have More Questions About Re
For more information on how to file a case after a prior dismissal and getting the automatic stay protection in your subsequent case its best to speak with one of our experienced bankruptcy attorneys who can answer any questions you may have and help advise you through the process. Contact our office for a free consultation with one of our experienced bankruptcy attorneys.
If The Court Dismissed Your Bankruptcy
The bankruptcy codes states that if a case is dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case or the debtor requested and obtained a voluntary dismissal then youll have to wait 180 days before you can refile for Chapter 7 Bankruptcy again.
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Consequences Of Bankruptcy Dismissal
Regardless of whether they are voluntary or involuntary, if a filer has more than three dismissals in a one-year period, any subsequent bankruptcy case refiling wonât benefit from an automatic stay. That means that regardless of your financial situation, you wonât be protected from collection activity, repossessions, garnishments, calls from credit card servicers, etc. Note also that if your case is dismissed for any reason, you wonât receive abankruptcy discharge of your debts.
Filing A Chapter 7 Case Without An Attorney
If youâre struggling to pay your debts, you might want to consider a Chapter 7 case before you file a Chapter 13 case. Depending on your financial situation, you might pass the Means Test for a Chapter 7 case. In a typical no-asset Chapter 7 case, you can eliminate your debts within four to six months after filing your bankruptcy petition with the bankruptcy court. For many filers, theyâre able to get rid of thousands of dollars in debt quickly without losing any of their property.
If this sounds like the debt solution you have been searching for, consider using Upsolveâs free filing tool. If you have questions or you are skeptical, watch video testimonials from our past users. You can hear from actual individuals who used our services to file a Chapter 7 case without an attorney to receive the debt relief they need.
If you need a fresh start but you canât afford to pay an attorney to help you file a Chapter 7 bankruptcy case, take our screener to see if youre a fit for Upsolveâs free bankruptcy app. Upsolve gives individuals who cannot afford to hire a bankruptcy attorney the assistance they need to get out of debt. You can do this!
Check out the video below â¬ï¸ for more on what happens when a Chapter 13 case is dismissed!
Will I Have The Same Protection From Creditors If I Refile
The first time individuals file for bankruptcy, they typically receive an automatic stay. This rule prevents creditors from initiating or continuing their efforts to collect money before the case is settled.
However, its important to know that individuals who file a second time dont receive the same protection. After all, the court doesnt want debtors filing multiple cases in an effort to avoid paying what they owe. To that end, the stay in a refiled bankruptcy case lasts only 30 days.
Moreover, if the court dismissed two or more of your cases in the past year, you wont get a period of protection upon refiling.
In some cases, individuals who refile their cases may get the court to put a stay in place. Typically, the court will grant you an automatic stay if you have a good reason for the new filing.
Prejudice Period And How To Reduce It
Once a debtors bankruptcy case is dismissed there is a prejudice period that prevents the debtor from filing a new bankruptcy case. A typical bankruptcy prejudice period is 180 days or six months which means that the debtor cannot file his or her new case until six months, from the date of dismissal, has passed. A bankruptcy attorney can go to court to request that the prejudice period be shortened, however, they will need to show good cause to allow this to occur.
If your bankruptcy case has been recently dismissed and you are considering refiling please contact bankruptcy attorney Ofer Shmucher of Shmucher Law, PL by calling 305-741-5553 to schedule a free consultation in our Miami office. We represent debtors in Chapter 7 and Chapter 13 bankruptcies in Broward and Miami-Dade Counties.
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My Chapter 13 Case Was Dismissed Can I File A New Case And Protect My Property
It is usually possible to refile under Chapter 13 after a case has been dismissed. However, you must be able to show that you have sufficient regular income to make the new plan feasible. If a car or other collateral has been repossessed, it can usually be recovered, provided that it hasnt been sold to a third party and the new plan provides for payment of the debt.
If you have had a prior case pending within the last year, your attorney must file a motion to extend the automatic stay which goes into effect when your case is filed. Otherwise the stay would expire 30 days after the case is filed, putting your property in jeopardy. Motions to extend the stay are usually granted without dispute.
If you have had 2 prior cases pending within the last year, the stay does not go into effect automatically. Your attorney must file a motion to impose the stay. Otherwise, your creditors could try to repossess and dispose of their collateral. Motions to impose the stay are also usually granted, but you will likely have to show the court that your circumstances have changed and that the new plan is workable.
If you are considering filing a new case after dismissal of a previous case, it is very important to consult with an experienced attorney right away. Your attorney may be able to formulate a more favorable repayment plan so that the new case will be more likely to succeed.
- My Chapter 13 case was dismissed. Can I file a new case and protect my property?
Filing A Chapter 7 Case
If a Chapter 13 plan goes south and they very often do there are options beyond getting pummeled by creditors and refiling under Chapter 13. Chapter 7 bankruptcy the simple liquidation plan mentioned at the top is a possibility.
Debtors who have not received a Chapter 7 bankruptcy discharge within the last eight years are eligible to convert from Chapter 13 to Chapter 7 at any time.
Conversion requires filing a motion with the court. The motion to begin the conversion happens automatically no court hearing is necessary. Consult your trustee for additional information about making the switch, including who should notify your creditors.
Customarily, forms filed for a Chapter 13 petition transfer neatly into a Chapter 7 case. But not always. Your court may mandate a fresh batch of forms, as well as a Statement of Intention . Additionally, the court imposes a small conversion fee .
Applying for a conversion is not always the same thing as qualifying. Depending on the bankruptcy court, petitioners may be required to pass a means test before qualifying for a Chapter 7 conversion.
Most likely, petitioners must explain why theyre seeking a conversion. Oftentimes, its the result of a significant change in the debtors financial status that makes the agreed-upon Chapter 13 repayment plan impossible to meet.
The bankruptcy path is tricky and errors can be punishing, debtors should strongly consider retaining legal counsel before tackling bankruptcy.
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