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We are currently in Chapter 13, can we file chapter 7 if not when can we?

Bismarck, ND |

My husband's income has changed dramatically and we are behind or in collections on everything and truly need some relief.

Attorney Answers 6


  1. You can't continue in the Chapter 13 and also file a Chapter 7, but if the numbers work, you could convert your Chapter 13 to a Chapter 7 or dismiss your Chapter 13 and refile a Chapter 7.

    The strategy you would implement and whether or not you would qualify now or 6 months from now (depending on how long your husband's income has changed) will determine which way to proceed. Hope this perspective helps!


  2. Remember, Chapter 13 is completely voluntary - you can dismiss you Chapter 13 case at any time, for any reason. If you are considering seeking protection under Chapter 7, you should meet with your Chapter 13 attorney, if you have one. If you don't, you should seek out an experienced attorney in your area. Theses issues can be difficult and complex, and you need an attorney that can help you through the maze - to reach your objective.

    So, BEFORE you do anything - get some specific advise.

    I hope this helps.
    Respectfully,
    Steven A. Leahy
    www.chicagotaxteam.com

    Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.


  3. I agree with the answers provided by the other attorneys and just wanted to add that if you are unable to convert to a Chapter 7 maybe you can still feasibly continue in the Chapter 13 by filing a Motion to Suspend or Modify your plan payments. This could give you some temporary or long term relief in being able to complete your bankruptcy case. Be sure to ask your attorney about your options and if you do not have one you will certainly need one to help you figure out your options. Good luck.

    The author’s comments are not to be construed as rendering a legal opinion nor proffering legal advice. To obtain legal advice or a legal opinion, you should retain an attorney to consult with you on your particular matter.


  4. Please be aware that if you voluntarily dismiss your case, then you cannot refile for another 6 months. You are better off converting (if possible). And if that is not possible then let the standing chapter 13 trustee dismiss your case for lack of payment if your intent is refile right away.

    Additionally, if you find yourself with a dismissed case and want to refile within a year from the date your case was dismissed then please make sure your attorney is aware of the requirement to ask for an extension of automatic stay.


  5. If your monthly income is below the median family income or if your income and expenses (as compared to family size) allow you to pass the Means Test (see Bankruptcy Form 22A), you may be eligible to Convert to Chapter 7 Bankruptcy. If there's any questions about your income or expenses, the United States Trustee can always Object and move for your case to be dismissed or pushed back into Chapter 13. Another option is to voluntarily dismiss the Chapter 13 if Chapter 7 is not an option.


  6. You cannot have an active simultaneously Chapter 13 proceeding and an active Chapter 7 proceeding simultaneously. If you do not have the available income to proceed with your Chapter 13 Plan of Reorganization, you should speak to an attorney regarding possible CONVERSION to a Chapter 7.

    No attorney/client relationship is formed between the attorney responding to this question and the individual asking the question.

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