Filing for chapter 7 before 8 years have passed- what's the true rule?

Asked over 4 years ago - Seattle, WA

I have been reading conflicting information about filing for ch 7 again. Almost 7 years have passed since we filed and it's been 6.5 since we were discharged. I understand that you have to wait 8 years before you can be discharged, but on http://www.bankruptcycanhelp.com/published-arti... , it says you can file for chapter 7 again but will not be entitled to a discharge in the new case unless the 8 years has passed.

Is this case? Can you file for chapter 7 even if it can't be discharged until 8 years has passed? What happens during that time period before you're eligible for a discharge? Are you still able to get an automatic stay? Chapter 13 would not be feasible for us.

Attorney answers (2)

  1. Theodore Lyons Araujo

    Pro

    Contributor Level 20

    Answered . You are able to file but cannot get a discharge in a Chapter 7 until the eight years passes. One reason to file a Chapter 13 when you do not require a discharge is to rehabilitate the mortgage when you are behind. If you have no unsecured debt you do not need a discharge. In a 13 you can file and wait until the 8 years passes (in some jurisdictions) and ten convert.

  2. Andrew Daniel Myers

    Contributor Level 20

    Answered . Interesting question.

    I do not have time to read that or any other website. However, here is the answer to your question:

    Under the 2005 revisions to the U.S. Bankruptcy Code, generally known as BAPCPA, one must wait for eight (8) years after the date of filing of the first chapter 7 bankruptcy until the date of filing of a successive chapter 7 bankruptcy, if one desires to have the case go to discharge.

    You CAN file before the 8 years elapses from the original filing date. And, by operation of law the automatic stay WOULD go into effect at that time. However, whoever it is that you want to avoid, legitimately or otherwise, will simply file a motion for relief from the stay and it will very likely be granted. The U.S. Trustee could also file a motion for dismissal with the same likely result. Then, what is the point?

    Without knowing your circumstances or what your present goals are, it is difficult to provide a more detailed answer. However there are some very skilled debtors rights attorneys familiar with all of the various legal tools available to people in today's unfortunate economy and I urge you to seek a consultation to explore the range of options available to you.

    Best wishes.

    This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.

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