If You Filed Bankruptcy Just Before the 2005 “Reform,” When Exactly Can You File Again?

You can file a new case 8 years after filing before (so, now or very soon), or possibly only 6 or 4 or 2 years after, or maybe even with no delay.

 

The last blog was about the huge number of people who filed bankruptcy in the months leading up to October 17, 2005. That was the date a major revision of the bankruptcy laws went into effect, and the reason for the rush beforehand. Nearly two and a half million bankruptcies were filed in the year before that date, by far the most in any year-long period in history. If you happen to be among the people who filed one of those cases, or know somebody who did, today’s blog may be of special interest to you.

Qualifying for a Discharge of Debts

There are various rules about qualifying to file bankruptcy. Some get into financial considerations—like the amount of your income and/or expenses for the Chapter 7 “means test,” or debt limits for Chapter 13. These other qualifying rules have to be met as well, but today we focus only on the length of time required from a previous bankruptcy filing until a new one.

The Focus on a Previous “Discharge”

More precisely the timing rule refers to the amount of time from the filing of a previous bankruptcy case which resulted in the discharge of debts until the filing of another case also resulting in the discharge of debts.

“Discharge” is the legal write-off of debts provided by the bankruptcy law. It’s the main reason—but often not the only reason—for filing bankruptcy.

If you filed a previous personal bankruptcy—whether it was a Chapter 7 “straight” bankruptcy or a Chapter 13 “adjustment of debts” payment plan—and your understanding is that you finished it successfully, almost certainly you received a discharge of your debts. Near the end of your case you should have received a copy of an order from the bankruptcy court granting you a discharge. If you do have your old bankruptcy documents, bring them to your present attorney. If you don’t, he or she should still be able to determine whether or not you received a discharge.

Finding this out is important because, in the unlikely event that you did not get a discharge, then you do not have to wait any period of time before you can file a new bankruptcy case. (The rare exception is if the bankruptcy court entered an order not allowing you to file a bankruptcy for a certain length of time, which only happens after serious abuse of the bankruptcy laws.)

The Timing Rules

Here is how long you must wait in between bankruptcy filings to receive a discharge of debts in a new bankruptcy case.

IF you want to now file a Chapter 7 case:

–and received a discharge in a previous Chapter 7 or Chapter 11 case, you must wait 8 years from the filing date of the previous case to the filing date of the new case;

–and received a discharge in a previous Chapter 13 case, you must wait 6 years from the filing date of the previous case to the filing date of the new case, BUT you don’t have to wait at all if in that Chapter 13 case you paid 100% of the allowed debts, or paid at least 70% and met some other conditions.

  IF you want to now file a Chapter 13 case:

–and received a discharge in a previous Chapter 7 or Chapter 11 or Chapter 12 case, you must wait 4 years from the filing date of the previous case to the filing date of the new case;

–and received a discharge in a previous Chapter 13 case, you must wait 2 years from the filing date of the previous case to the filing date of the new case.

IF you want to file a Chapter 11 case, the timing rules are the same as for Chapter 7 above.

(Note that Chapter 11 is usually for a business, or for a huge amount of debt; Chapter 12 is for farmers and fishermen.)

It’s important to understand that the date the discharge was entered in the previous case does not matter. It’s the filing date that starts the clock running here.

So You Can File Soon, or Possibly Now

So if you filed a Chapter 7 case in the months of 2005 before October 17, 2005, you can file another Chapter 7 case after that same date this year. Under any other combination—previous Chapter 13 case to new Chapter 7, or vice versa—your permitted new filing date passed a few years ago, so you can file now.

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