Filing for Chapter 7 bankruptcy a second time requires 8-year wait

By James B. Maguire Esquire, Special to the BDN
Posted April 05, 2009, at 8:25 p.m.

Q: I have a question regarding filing for Chapter 7 a second time. I filed for Chapter 7 in July 1999, and it was discharged late that year. Can I file a second time? And if so, how soon?

A: The basic rule is this: A person who filed a Chapter 7 case in the past must wait eight years before he can file another. The time is measured from filing date to filing date. So since you filed your old case in July 1999, you could have filed a new case as early as July 2007.

But here’s some more interesting information. Suppose you filed the old case less than eight years ago — what would a bankruptcy attorney review in order to assist you?

• If you filed a Chapter 7 less than eight years ago and if the new debts are joint with a spouse who has significant assets and income and who was not in the old case, then it may be beneficial to both for the spouse to file a Chapter 7 case now.

• If your corporation or LLC filed the past case, you personally are not bound by the eight-year limit and may file a Chapter 7 case.

• What if you did not actually get a discharge in the old case? Some cases get dismissed, so the eight-year limit does not apply. An attorney with online access can check any bankruptcy court in the country in a matter of minutes.

• Was it really Chapter 7? Most lay persons are not at all clear on the different kinds of bankruptcy. If the old case was actually a Chapter 13, the waiting period to file a Chapter 7 case is only six years. The waiting period to file a new Chapter 13 case is only two years.

• If a new Chapter 7 case is not possible because of the eight-year limit, then a Chapter 13 filing may help — it can be very useful in the right circumstances. You can get a discharge in Chapter 13 provided that the old Chapter 7 case is more than four years in the past. Chapter 13 bankruptcy is quite different from Chapter 7. Chapter 13 involves a payment plan and is often used to deal with foreclosure. It can be very useful in the right circumstances.

• If the old Chapter 7 case is too recent and you are under great pressure, mark your calendar for the eight-year anniversary of the filing date. You could even start preparing for the new case a few months in advance by talking to a qualified bankruptcy attorney and starting to save up the legal fee and filing fee. When you hit the eight-year mark, file the new Chapter 7 case the next day.

• Depending on the degree of complexity, the legal fee could range from $1,000 on up to $2,000 and higher. The court charges a filing fee of $299, but the judge has the authority to waive it if your income is less than 150 percent of the official poverty level.

This column is a service of the Lawyer Referral and Information Service of the Maine State Bar Association. Its contents are a general response to the question and do not constitute legal advice. Questions are welcome. Just go online to AAL@mainebar.org, describe your question and note you are a BDN reader. Written questions mailed to “Ask a Lawyer,” Bangor Daily News, P.O. Box 1329, Bangor 04402-1329, will be forwarded to the LRIS.

http://bangordailynews.com/2009/04/05/business/filing-for-chapter-7-bankruptcy-a-second-time-requires-8year-wait/ printed on August 20, 2014