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Convert bankruptcy if barred for abuse?

Sacramento, CA |

If a bankruptcy petitioner has been barred from filing a new petition for 2 years due to abuse of the bankruptcy system, can she appeal the dismissal of her current petition and convert the petition to a new chapter, say Ch. 13 to Ch. 7?

Attorney Answers 5

  1. If timely exercised an appeal is generally an option for most final Court rulings. Whether there is any chance of success or not is a completely different issue. A consult with an appellate attorney would be necessary.

    Factually, to get barred for two years must have taken quite a few steps in the wrong direction. Going at this without counsel would not be wise.

    Kevin A. Spainhour, Esq.

  2. Yes, you can file a motion to reconsider the decision and if the bankruptcy court rules against you file an appeal with the district court. You should retain counsel for this as it has major consequences.

  3. Such an appeal is possible, but I think the chances of the petitioner winning are probably slim. The bankruptcy judge is given more than a little lee way to oversee the process as he or she thinks fit, and I can't imagine that a two year ban was handed out unless there was something seriously wrong going on.

    This is AVVO, a place for users to obtain general legal information to general legal questions. I am glad to help you in any way I can, within those limits. I wish to make clear I am only communicating with you for the sole purpose of exchanging such general information, and nothing more. It is not legal advice, which I can not provide because among other reasons I know few of the necessary details of your situation. I do not purport to represent you in any way, shape or form. Of course, if you would like to seek out my services, and if you are a NY resident, I will probably not put up very much resistance but representation would still necessitate a signed retainer agreement between yourself and I. Thank you.

  4. First, you must look at the language of the order barring the filing. Does it say any bankruptcy or just a chapter 13? Second, you can appeal anything. Whether you are timely and successful are two different things also. So you have to look at all the rules, the local rules and perform accordingly. Because of the question of .."if barred for abuse" I don't see much luck is my guess as the standard to law on appeal is often hard to overcome but only an attorney reviewing the facts and law can advise you on that issue; many cases are overturned by the BAP and by the 9th Circuit. I won a student loan trial back in 2012 or so and was reversed by Seattle District Court Judge and NOW hoping that the 9th Circuit Court of Appeals reverses the local District Court Judge which was done recently in another 9th Circuit case of In Re Hedland . SO, you cant get what you want if you don't try..but you might be sitting two years. Plus, then the issue is if you appeal, is it still enforceable order and will it take 2 years to resolve? Food for thought. Good luck.

  5. Conversion may not be the answer either. Substantial abuse means there is a strong, overwhelming possibility that the conversion is being made in bad faith.

    Which means, your conversion will be denied as well, further digging a deeper hole than you are already in.

    What you wrote says that you may be a serial filer or you did this on your own, or got some bad advice or maybe got good advice but ignored it.

    It takes a lot for a debtor to get kicked out of the process for 2 years.

    This is a public forum. Any questions or answers published here should not be construed as the giving or receiving of legal advice or the formation of any attorney-client relationship. You should consult with a competent attorney in the jurisdiction where your legal issues are pending and get good, solid legal advice. This being a public forum, those answers you do read are merely given for informational purposes only.

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