Personal Bankruptcy Filing a chapter 7 again before 8 years

[landlordproblem]

What happens if you file a chapter 7 again before your 8 years are up from the previous bankruptcy? I know it's not allowed, but how long does the court have to reject it and how long can you convert it to a chapter 13? Reason I'm asking is because we have a tenant which filed a chapter 7 back in Sep of '02 and we are trying to evict...now she filed a chapter 7 again...the same day (today) as the trial for the foricble detainer. We went to court today and the judge awarded us a judgement, however, we are required to get a lift from the bankruptcy prior to actually getting the writ of restitution. Can she withdrawl the bankruptcy all together...and if so, how long does she have? Thanks to any advice!

 

[army judge]

What happens if you file a chapter 7 again before your 8 years are up from the previous bankruptcy? I know it's not allowed, but how long does the court have to reject it and how long can you convert it to a chapter 13? Reason I'm asking is because we have a tenant which filed a chapter 7 back in Sep of '02 and we are trying to evict...now she filed a chapter 7 again...the same day (today) as the trial for the foricble detainer. We went to court today and the judge awarded us a judgement, however, we are required to get a lift from the bankruptcy prior to actually getting the writ of restitution. Can she withdrawl the bankruptcy all together...and if so, how long does she have? Thanks to any advice!

There is no minimum time limit, as regards the statute, between BK filings.
She filed in September, '02.
That will soon be 8 years.
Evidently, the court is aware of it, because she is permitted to file BK again.

Sure, she can stop her BK.
Will she, who knows?

What you need to know, that she doesn't, is that she can not hide behind BK to avoid paying YOU, her landlord!
Under the new BK law, she has only 30 days to use the court system to avoid paying you.
Federal judges will lift the stay, after 30 days, if she hasn't paid her rent in FULL.
This provision applies to people like your tenant, ones that have lost in a state court.

This article explains it all.

It used to be that families who were facing eviction and had no other place to go had a final resort — file a bankruptcy petition to buy just a little more time to either work things out with the landlord or move. However, since the advent of the Bankruptcy Abuse Prevention Consumer Protection Act on October 17, 2005, bankruptcy has had much less to offer to residential tenants who are at risk for eviction from their apartments. The new provisions relating to evictions codified within Title 11 of the United States Code at Sections 362(a)(22), 362(a)(23), 362(l) and 362(m) are arguably the harshest changes offered by the new law where consumers are concerned.

If the new provisions are to be summed up, they essentially force the residential tenant to "put up or shut up". At the same time, it should be emphasized that these harsh provisions have limited application — they only apply to tenants who have "lost" in a state court eviction proceeding and who are facing a "judgment for possession" pursuant to which the tenant is reinstated on the lease provided that the judgment amount is satisfied, i.e., is paid in full. (If the judgment does not provide for reinstatement upon satisfaction, it is presumed that the tenant gets no relief at all from the bankruptcy filing.)

In order for the the bankruptcy filing to have any effect on a looming eviction in which the landlord has a state court judgment which is capable of being satisfied as described above, the tenant must pay one month of rent to the bankruptcy clerk immediately upon filing the bankruptcy petition. In addition to paying the rent to the clerk, the tenant must file a "certification" under penalty of perjury which states that (1) the judgment permits the tenant to stay in the premises upon satisfaction of the entire judgment amount and (2) the tenant has deposited with the bankruptcy clerk "any rent which would become due during the thirty (30) day period after the filing of the bankruptcy petition".

If the tenant complies with the above requirements, i.e., pays the rent and files the certification (and serves the certification on the landlord), on the day that the bankruptcy petition is filed, the tenant is given a thirty day reprieve. In other words, the tenant gets the benefit of the bankruptcy "automatic stay" for a period of thirty days from the date that the bankruptcy petition is filed.

If the tenant is interested in being able to remain in the apartment beyond the initial thirty day period, the tenant must satisfy the amount stated in the judgment for possession within thirty days following the filing of the bankruptcy petition and must file within those same thirty days a certification with the Court that the tenant has in fact paid this amount. If the tenant does this, it is presumed that the automatic stay remains in full force and effect until modified by order of court.

http://www.bankruptcylawnetwork.com/2007/03/25/can-i-use-bankruptcy-to-stop-an-eviction-proceeding/

This article explains why some people might become repetitive BK filers.

There is no limit on the number of bankruptcy cases that one may file. In fact, there is no limit in between time frames to file bankruptcy. Nevertheless, if sufficient time between filings does not take place, you may be not be eligible for "discharge."

So if a bankruptcy case is filed too soon, even though it will not be dismissed, a discharge may not take place. Why would anyone do this? Well there are several reasons to name a few.

If enough time has not taken place, but a debtor wants to eliminate their debt in a subsequent chapter 7 and has sufficient assets to do so, filing another case may be a good idea. Suppose a debtor has a messy asset(lawsuit, insurance claim, etc) but wants to use that to pay creditors. By filing another chapter 7, the trustee can liquidate that asset to pay the debts. Although the debtor may not be getting top value for the asset since the trustee only cares about getting enough money to pay the creditors, it may be worth the peace of mind for the debtor in not dealing with the asset and having the trustee in charge of converting it to dollars.

Or, maybe a debtor recently filed a chapter 7 and has remaining non-dischargeable student loans or taxes. The debtor could then file a subsequent chapter 13 and be protected for the next 5 years without any worries of lawsuits, levies, or wage garnishments, even though at the end of 5 years no discharge is entered. Then, maybe at that date, the debtor might also be eligible to eliminate the debt in another chapter 7 or 13.

In a nutshell, the time frames between discharge eligibility are as follows:

8 years between 7s. -727(a)(8)

2 years between 13s. -1328(f)(2)

4 years between a 7 and 13 -1328(f)(1)

6 years between a 13 and 7(if under 70% plan). -727(a)(9)

The time is counted from filing to filing — not from first discharge to second filing.

http://www.bankruptcylawnetwork.com/2008/05/04/when-can-i-file-bankruptcy-again/

 

[Proserpina]

I suggest OP go to bkforum.com and ask his/her question there.

 

[esterlydsl]

Yes! she has got full chances of getting rid of Bankruptcy,but the court will definitely look into the minute details before making decisions.So, have a faith on the judicial system.