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Bankruptcy Criminal Defense

Do Previous Bankruptcy Filings effect my Eligibility to File?

The short answer is, you are not eligible to file if within the last 180 days you have had a prior case dismissed for “cause” or you obtained a voluntary dismissal after a creditor’s filing of a relief from stay.

The Longer answer is that:

One limitation exists on the right to file under Chapter 7.  You are not eligible to file if, within the last 180 days, (1) you were the debtor in a bankruptcy case dismissed for willful failure to abide by orders of the court or to appear before the court in proper prosecution of the case or (2) you obtained a voluntary dismissal of a bankruptcy case after the filing of a request for relief from the automatic stay provided by section 362.

Understanding this provision with respect to in voluntary dismissals, it is important to note that filing a petition within the 180 days of an involuntary dismissal does not render a debtor ineligible unless the failure to abide by court orders or to appear was willful.  Because this determination is not one that the clerk can normally make upon filing of a later case, such a dismissal should occur only if, after a motion to dismiss by some party of interest, the court finds the record requisite willfulness as a matter of fact.  Absent a specific court order issued for cause, involuntary dismissals do not preclude the debtor from filing a new case under the code, unless they fall within the parameters of section 109(g).

Simply failing to make payments, or filing fees, or plan payments in a chapter 13 case, should not, without more, be considered willful so as to preclude a successive filing for 180 days.  Nor should failure to appear at the meeting of creditors in a prior case, by itself, be grounds for dismissal of a subsequent filing.  A new petition may even be proper while prior petition is still pending.  There is also some question concerning the scope of this subsection covering voluntary dismissals quote following quote requests for relief from the automatic stay.  The obvious purpose of this provision is to prevent debtors from repeatedly filing new bankruptcy cases and obtaining new automatic stays after relief was requested or granted in previous cases.  With this in mind, it is not unreasonable to read the word “following” to imply some casual connection between the request for relief and the new filing.  Surely the provision was not meant to apply when there is a voluntary dismissal and a new case after a request for relief from the stay is denied, withdrawn, or settled favorably to the debtor.  These situations were not among congresses concerns what a past section 109(g).  Similarly, the provision should not apply when the voluntary dismissal and new case are remote in time from the request for relief from the stay, for example, when a request for relief was filed several years before the dismissal and has nothing to do with the new case.  Nor should debtors who requested dismissals before the filing of a motion for relief from stay, but who did not obtain a dismissal order until after such a motion, be considered within the scope of the bar to refiling. Moreover, the existence in code of specific limitations on refiling strongly suggest that courts are precluded from issuing more general injunctions precluding future filings.

Nonetheless some courts do enter dismissal orders, not based directly on section 109(g), that prohibit a debtor from filing another case for a period of time, usually 180 days.  In extremely rare cases, courts may dismiss a bankruptcy case with prejudice, which precludes the debtor from ever discharging the debts involved in that case.  It is important to distinguish between these two types of dismissal, because court sometimes use with prejudice language when they intend only to preclude refiling for a period of time.

If you or your family needs to get out from a mountain of debt or protect you and your family’s future, you need to speak with an experienced, empathetic, and knowledgeable attorney like the ones at Chris Wesner Law Office, LLC.  Give us a call to set up an in person or telephone conference for FREE.  That’s right, FREE.  Our initial consultation is 100% FREE, with NO STRINGS attached.  There is NO FEE if you decide that bankruptcy is not for you.  In fact, we OFTEN encourage our clients NOT to file bankruptcy.

Chris Wesner Law Office, LLC has offices throughout the Miami Valley including:  Dayton, Xenia, Springfield, Troy, and Piqua with other offices expected to be coming soon like Sidney and Hamilton.

 

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