Dismissals In Chapter 13 Vs Chapter 7
The difference between Chapter 7 and Chapter 13 is that a Chapter 13 bankruptcy typically costs more than a Chapter 7 bankruptcy and takes much longer to complete. Because of this, a Chapter 13 bankruptcy case is much more likely to be dismissed at some point in time before a discharge is granted. The most common cause of the dismissal being failure to make the required repayment plan payment when due.
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Who Can Dismiss A Criminal Case
The prosecuting attorney and the judge are the only ones with the power to dismiss a criminal case. Because the prosecutor filed the charge, they also have the discretion to dismiss it if they believe the facts and circumstances warrant it. Likewise, a judge can dismiss the case if they find no legal basis for the charge, if the defendants rights have been violated, or if the state has failed to prove its case. Judges can dismiss a case either on their own motion or on the motion of the defendant. Most charges, however, are dismissed by prosecutors, not judges.
So Why Could A Case Get Dismissed
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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.
Dismissal Conversion & Closing Of A Bankruptcy Case What Are The Differences Between Them
A) Dismissal vs. Closing of a Bankruptcy Case — The main differences between dismissal and closing of a bankruptcy case involve discharge, ability to file another bankruptcy case, and the consequences of filing another bankruptcy case.
Closing does not mean that a discharge was entered unless all activities related to determining discharge have been completed. If a bankruptcy case is closed without a discharge because an individual debtor did not timely file a Certificate of Completion of Instructional Course Concerning Personal Financial Management, a debtor must file a Motion to Reopen the Case.
What Are Common Reasons For A Dismissal
There are a number of reasons why a prosecutor or a judge may dismiss a criminal case. A skilled defense attorney will be able to identify legitimate grounds for dismissal. They include but arent limited to:
- Witnesses are uncooperative or the victim recants.
- Scientific analysis, such as DNA test results, reveals new information.
- The defendant has agreed to work with the government in exchange for a dismissal.
- Violation of the double jeopardy clause.
- Prosecutorial discretion.
How Discharged Debts Appear On Your Credit Report
If your debts are legally gone, how do they remain on your credit report? Your former creditor just doesnt bother to update the report.
Some of them, and I kid you not, some of them will be so out of it that they will keep automatically pulling your credit report every month just like you still had an open account with them!
Everyone thinks it wont happen to them, but it does. It happens to thousands and thousands of people every year many of whom become my clients.
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Dismissal Of Bankruptcy Will Lower Your Credit Score And Make It Harder To Obtain New Credit
One other item that is not reversed by a dismissal is the listing of the bankruptcy filing in your credit reports, even if you voluntarily dismiss the case. The listing of the bankruptcy filing will remain for 7 years from the filing date or 10 years for a Chapter 7 filing, and it will have a significant effect on your for at least 2 years. Because the debts of a dismissed case are not discharged nor is the listing of the filing prevented by a dismissal, it is almost always a bad idea to seek a voluntary dismissal, even if one can be obtained.
On the other hand, receiving a discharge of your debts will improve your credit score because the discharged debts are eliminated. Creditors will also know that you will be unable to file again for at least several years, reducing the risk that any credit will be eliminated in a subsequent bankruptcy. Furthermore, the discharged debts cannot be listed for more than 7 years after they are discharged, even for a Chapter 7 only the bankruptcy itself can be listed for 10 years after the Chapter 7 filing. If your case is dismissed, then the listed debts can remain on your credit report for at least 7 years after the accounts are closed, which could be long after your dismissal, increasing the time that the accounts will remain in your credit files, lowering your credit score.
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How To Get A Dismissed Bankruptcy Case Off Credit Report
If a dismissed case is erroneously reported on your credit report, then you may be able to have it removed. Wait 10 years. Bankruptcies automatically drop off credit reports after 10 years, so if you do not want to fight to have your case removed from your credit report, you can wait until it happens automatically.
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Dismissing A Bankruptcy Case Without Discharge
Most people who file a bankruptcy case have one goal in mind, and that is to relieve financial stress by discharging their debts. When your debts are discharged, the filer debtorin a bankruptcy caseno longer has any personal liability on the debt.
Why Would A Bankruptcy Trustee Request A Case Be Dismissed
A bankruptcy trustee assigned to a Chapter 7 case will, most commonly, request the dismissal of a case in the event that a filer doesnât attend their mandatory meeting of creditors. However, Chapter 7 cases may also be dismissed by a trustee if a filer doesnât properly complete and file their schedules, turn over requested documentation, or otherwise comply with mandatory directions provided by either the court or the trustee.
A trustee assigned to a Chapter 13 case may dismiss this kind of bankruptcy filing for all the same reasons. However, they may also dismiss a Chapter 13 case if a filer fails to create and submit a repayment plan, or fails to make their scheduled payments. Finally, they can request dismissal of a Chapter 13 case if the filer fails to meet plan obligations, such as selling real estate per the terms of the approved plan, or if the plan is failing for another reason. Because there are so many more opportunities for a Chapter 13 bankruptcy filer to misstep over a 3-5 year repayment period, dismissal requests by trustees are far more common in Chapter 13 cases than they are in Chapter 7 cases.
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What Happens If You Don’t Make Your Chapter 13 Plan Payments
If you want to continue with your Chapter 13 bankruptcy, you must make timely plan payments to the bankruptcy trustee every month. The trustee keeps a record of all payments you make during your bankruptcy. If you fail to make your plan payments, the trustee will file a motion with the court to dismiss your case.
Dismissals Without Prejudice In Bankruptcy Cases
A dismissal without prejudice is a technical legal term that can have critical implications in the bankruptcy context. Dismissing a bankruptcy case without prejudice means that the debtor can file for bankruptcy again at any time. They will need to fix certain errors or omissions in the original filing to succeed on the second attempt. To fend off collection efforts, they may need to file a motion for an automatic stay or an extension of the automatic stay when they file again.
A court may dismiss a bankruptcy case without prejudice when the debtor fails to meet all of the requirements for completing the case and getting a discharge of qualifying debts. It also may dismiss a case with prejudice, which means that you cannot file for relief within the time provided by the dismissal order, but this is unusual as long as the debtor does not commit fraud or fail to comply with court orders. A dismissal without prejudice is usually based on a procedural error.
How Long Does A Chapter 13 Bankruptcy Stay On Your Credit Report
For a Chapter 13 bankruptcy, it will remain on the report for up to seven years. The bankruptcy event should automatically be removed from the report by the reporting bureaus at the end of this period of time, and the individual should not have to take any additional steps for the event to be removed.
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Failing The Means Test
Your disposable income must be low enough to pass the means test before you qualify for a discharge. The bankruptcy means test compares your average income for the six-month period before filing your case against the median state income for a similar household.
If your income is below the state median, you qualify automatically. However, if it is above, you still might qualify. You’ll be allowed to deduct the national and local living expense standards for your area to determine whether you qualify. If you fail the means test, the court will likely either dismiss your Chapter 7 bankruptcy or give you the option to convert to a Chapter 13 case.
My Bankruptcy Was Dismissed What Happens Now
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In a Nutshell
A bankruptcy case is much like any other legal proceeding in that it may be affected by delays, impacted by other legal action, and subject to dismissal. This guide provides bankruptcy filers with a sense of their obligations as a debtor, how to prevent dismissal of a bankruptcy case, how to better ensure that a case is dismissed when bankruptcy dismissal is the goal, and options filers may want to consider if their case has already been dismissed.
Written byAttorney Kassandra Kuehl.
Filing for bankruptcy is not always a straightforward process. A bankruptcy case is much like any other legal proceeding in that it may be affected by delays, impacted by other legal action, and subject to dismissal. You may be in a position where youâre trying to avoid dismissal of your Chapter 7 bankruptcy case or your Chapter 13 bankruptcy case. If so, there are steps you can take to better ensure that your case is ultimately successful. However, you may also be in a position wherein youâre hoping to get your bankruptcy case dismissed. If so, you may be able to accomplish this goal by taking a certain approach.
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Dismissal And Starting Over
Failing to respond to a motion to dismiss likely will result in a dismissal without prejudice, which allows a debtor to refile at any point. Until and unless you file again, you will lose the protections provided by bankruptcy, such as the automatic stay. However, if you have suffered a substantial financial blow and cannot convert to Chapter 7, this may be your only option if you cannot get a hardship discharge. You can file again as soon as you qualify for either Chapter 7 or Chapter 13. This will also involve filing a separate motion with the court to ask for an extension of the automatic stay, assuming that you file within a year of the dismissal.
Voluntary Dismissal Under Chapter 7 Bankruptcy
Sometimes a debtor will want to dismiss their Chapter 7 bankruptcy because they have received money during their case and hope to improve their credit history or they thought that their home would be protected and discovered that it wasn’t. Any bankruptcy dismissal may actually worsen the debtor’s because the debts listed in the bankruptcy petition will not be discharged and the bankruptcy filing itself will remain on the debtor’s credit reports. Even if the debtor suddenly came into money, it may still be better to get the discharge then the debtor can use the money for a fresh start, which is 1 of the 2 main objectives of bankruptcy. Read for more information.
Whether a court will grant the debtor a voluntary dismissal depends on the following factors:
- Synopsis: voluntary dismissal of Chapter 7 case sought by debtor under 707.
- Issued: April 22, 2009
Tip: If you wanted to dismiss your case because you discovered you were going to lose your home, then consider converting your case to Chapter 13. Under Chapter 13, you can keep your home and get more time to pay any arrearages on your mortgage and you may be able to pay less on your other debts, which will make the mortgage payment more affordable. Note, however, that while a debtor who filed an original Chapter 13 petition can dismiss her case voluntarily at any time, a Chapter 13 debtor who converted from a Chapter 7 case must attend a hearing and give good cause for the dismissal.
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Can A Debtor File A Motion To Dismiss
A) Voluntary Dismissal A debtor can file a motion to voluntarily dismiss the bankruptcy case, but the court may or may not approve the dismissal depending upon the chapter number of the bankruptcy case and the prior history of the debtor in bankruptcy. IMPORTANT NOTE: Dismissal of a bankruptcy case has serious consequences.
Requesting A Voluntary Dismissal Of Your Bankruptcy Chapter 7 Filing
The majority of courts will not allow you to terminate or dismiss a Chapter 7 bankruptcy case on your own. This is especially true if youre doing it to avoid having to give up nonexempt property. If you file your petition and the trustee moves to seize nonexempt assets, you will unlikely be able to secure a voluntary dismissal of your bankruptcy petition.
A voluntary bankruptcy dismissal is highly unlikely in these situations. Bankruptcy fraud is vey serious and has very harsh consequences that do beyond the dismissal of your bankruptcy filing. It can result in a permanent ban on filing the debts you owe at the time of of filing. It can also can involve possible jail time and fines.
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What Does Bankruptcy Dismissed With Prejudice Mean
A dismissal with prejudice will restrict your ability to file another bankruptcy for a period. the court dismissed the case because of the debtors willful failure to follow court orders, or. the debtor voluntarily requested dismissal of the case after the filing of a motion for relief from the automatic stay.