I have filed bankruptcy before, can I file again?

Whether one can file bankruptcy again, and what limitations might apply to the second bankruptcy differs on whether the prior case ended in discharge (personal liability on debts was eliminated) or dismissal.

Previous Discharge

For individuals who have previously filed bankruptcy and received a bankruptcy discharge, the most important aspect of filing a second bankruptcy is generally whether or not a second discharge can be obtained. If no discharge is available due to timing, the bankruptcy will not be successful in eliminating personal liability on debts. The frequency with which a debtor can obtain bankruptcy discharges is limited by statute.

To obtain a new chapter 7 discharge there must be:

  • 8 years between the filing date of the new case and the filing of a previous chapter 7 or chapter 11 resulting in a discharge; (727(a)(8)) and
  • 6 years between the filing date of the new case and the filing of a previous chapter 12 or chapter 13 resulting in a discharge (with special rules if a chapter 13 paid 70% to 100% of unsecured claims). (727(a)(9))

To obtain a new chapter 13 discharge there must be:

  • 4 years between the start of the new case and the filing of a previous chapter 7, chapter 11, or chapter 12 resulting in a discharge; (1328(f)(1)) and
  • 2 years between the start of the new case and the filing of a previous chapter 13 resulting in a discharge. (1328(f)(2))

One should consult with an attorney prior to applying these timelines to your circumstances, especially if your prior case was converted from one chapter to another. Occasionally, it may make sense to file a chapter 13 even if no discharge is available. Such situations typically involve secured loans or mortgages.

Previously Dismissed Cases

An important limitation also exists for debtors who have had other bankruptcy cases that were dismissed pending in the year prior to filing. Depending on the number of cases pending within that year period, the automatic stay may expire after 30 days or may not go into effect at all. Both situations require additional planning to facilitate seeking continuation or imposition of a stay by motion once a case has been filed. Our post on re-filing chapter 13 discusses these automatic stay limitations in greater detail.

Less frequently, a previous bankruptcy may have been dismissed with prejudice to refiling bankruptcy. This may be explicit in the court's order dismissing the case, in which case the court's order controls as to when and if a new bankruptcy can be filled. Certain voluntary dismissals following a creditor's motion for relief from the automatic stay, as well as dismissals due to willful failure to abide by a court order or to properly prosecute the case, can bar re-filing bankruptcy for 180 days.

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