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Can I file bankrupcty again and get a dishcarge?

Silverdale, WA |

I filed a ch7 bankruptcy just over 4 years ago. I got a discharge. I had a medical problem and now owe over $200,000 in medical and I am about to have my home foreclosed on. ---- I filed 2 ch13 in the last 4 years that were dismissed because I missed payments. My attorney said I can do another ch13 and since it's been over 4 years since the discharge in the 7 that I can get the $200,000 wiped out and I can strip my 2nd mortgage if I complete the plan this time. I thought you had to wait 8 years or you couldn't get a discharge. Is he right or do I need a new attorney? Any other ideas on saving my home, getting rid of the medical debt and getting rid of the 2nd mortgage?

Attorney Answers 6

  1. Best answer

    Your attorney is correct. I've seen a lot that don't understand this. Rule 1328(f)(1) is where it says 4 years after filing the chapter 7.

    The loan strip will depend on the home value. Sounds like your attorney is on top of it.

    Aaron Nielson 425-533-4476 ***LEGAL DISCLAIMER*** My response to any questions or comments is not legal advice and it does not establish an attorney-client relationship. My replies are comments based on a very short scenario that does not include all of the facts. You should consider my comments and discuss them with your attorney. Avvo is not a safe place to discuss facts of your case or admit any fact or try to explain your side of the story. Remember your right to remain silent. If you want to discuss case specifics then contact me for a consultation appointment or strategizing meeting.

  2. Your attorney is correct. You are entitled to a Chapter 13 discharge if it has been 4 years since your discharge date in chapter 7. You have to wait 8 years to file another chapter 7. You can also strip off the second mortgage provided that the second mortgage is fully unsecured (value of 1st mortgage exceeds value of house).

  3. You can seek to file another 13. If your prior 13 was pending within the last year, there is an automatic 30 day stay. Your attorney can do a motion to extend that and have a hearing with the judge on it. If it is your 3rd case within a year, your attorney has to petition the Court for a stay.

    You can seek to strip the second if the value of your home is less than the payoff of the first mortgage.

    The 8 years would be a 7 to a 7. That is not what he is talking about.

    Not knowing any more about your finances, it is hard for anyone to explain your other options, if any.

  4. Your attorney is correct. You are eligible for a Chapter 13 discharge if it has been 4 years from the filing date of your Chapter 7. Based on the stated information, Chapter 13 should resolve many of your issues. Go on wage withholding order to avoid missing payments. This many bankruptcies in such a short time tries the Court's patience and also leads to an aggressive mortgage creditor behavior.

  5. First, the other attorneys have carefully already indicated the answers to the issues on the ability to receive a discharge. However, what is missing is HUGE: you need to know whether you qualify to file a chapter 13 and no one indicated that. If your total unsecured debt including a 2nd mortgage totals more than $383,175 then you don't qualify to do a chapter 13! If the value of the home is less than the 1st mortgage then the amount of the 2nd mortgage is unsecured and could cause you to exceed the limits. As you know here in Washington, the only courts to file are in Tacoma and Seattle for Western Washington. You can always obtain a second opinion. I have helped over 8,000 persons file in Western Washington and it is always free to discuss. So whether you call our firm or another firm, call and obtain another attorneys opinion plus check on the fees as some attorneys charge a lot for the lawsuit to wipe off the 2nd mortgage! Also, we will discuss with you how you might try and see if the 2nd mortgage can be voluntarily reduced in a chapter 7 or not. Good luck.

  6. To add to Mr. Taylor's comments, you may have an issue refiling because of the two previous dismissals, depending on the attitudes of your local judges. Here in Oregon, if there are two previous dismissals within a fairly short time prior to the filing of a new case, the judge will schedule a "show cause" hearing requiring you to show why you aren't acting in bad faith, and why a dismissal with a bar to refiling shouldn't be ordered.

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