The BK Judge dismissed the case, and placed a Bar on it. Can he file a Motion Pleading to be heard by the Judge to reopen the Case? We own a Home together, my Ex lives in it, and we would like keep it. I cannot file a Chapter 13 because my income would not qualify. The Case is not terminated yet. What do we do?
Chapter 7 Bankruptcy Attorney
Something doesn't seem right here. Why would he be going in front of a judge 8 days after filing the case? After filing the first time you see anyone is a Trustee at a hearing that is scheduled within 45 days. Did your ex use an attorney? I cannot stress the importance of hiring an attorney to assist him in doing a chapter 13. The success rates on chapter 13 for self represented debtors are extremely poor, like around 1% actually make it through the process. 99% of these cases get dismissed. Perhaps what really happened here is that your ex filed an emergency petition (that's when you file a skeleton petition, in other words without all the schedules). The balance of the petition schedules would have had to have been filed within 15 days after filing of the case. There are some tedious rules about how to do that & properly serve all the creditors with Notice & Chapter 13 Plan. He's setting himself up for a failure by going at this alone and something as important as saving a home from foreclosure you want to do it right. Please get a lawyer.
I am not YOUR lawyer. Don't rely on answers to questions as legal advice. For legal advice contact a Bankruptcy Attorney for a consultation. Tokarska Law Center is a Federal Debt Relief Agency representing individuals and businesses in filing for bankrutpcy protection under the U.S. Bankrutpcy Code. Kathryn U. Tokarska is a San Diego Bankruptcy Attorney, owner of Tokarska Law Center, 185 West F Street #100, San Diego, CA 92101, (619) 285-1992 www.sdbankrupt.com
The main reasons why the BK judges place a 180 day bar against refiling is because of evidence of multiple, incomplete filings, bad faith and such. It is still possible to file a motion prior to a new case being filed to show the court the bar was unjustified. Do not proceed without an experienced BK atty.
Are you asking us so you can tell your ex what we said?
I rarely suggest askers in this forum should consult with an attorney (because I figure that's what you thought you were doing when you posted the question); but I'm making an exception in this case. There are too many contradictions in your question to provide an appropriate response.
1. There would be no reason for him to meet with a BK judge 8 days after a case was filed.
2. You said the judge dismissed the case but then you said it was not yet terminated ... in which case there would be no need to reopen it.
3. Almost anyone can qualify for some form of Ch13 if properly motivated.
4. We know nothing about your income, the value of the home, the amount of equity, or why your ex allowed the BK to dismiss, etc...
Chapter 7 Bankruptcy Attorney
I don't think we have all the facts. After filing a Chapter 13 the first hearing is usually with the standing Chapter 13 trustee, not the judge. If there is an 180 day bar to refiling then it is possible to file a motion to have the dismissal vacated or in the alternative have the 180 day bar removed. If you have arrears on the mortgage and do not have bankruptcy protection you need to seek counsel now to explore the options you have to save the house.
The advise from my colleagues is very sound. Mainly because your fact pattern has a number of inconsistencies, including your statement about why you can't file a bankruptcy. Do yourself a favor and go see a bankruptcy attorney about how you can save your house!! It'll be worth the time and if the Attorney charges a consult fee (many don't) worth the money!! Run, don't walk!!