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Does anyone really know the rule for Chapter 13????

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Ok so I'm trying to find out if you can file Chapter 13 after having a previous Chapter 7. I've called 3 lawyers offices and 2 said you can't file for 4 years after your discharge and the other said you can file at anytime, you just can't get a discharge until after 4 years from the Chapter 7. I was surfing around the net today and I found a couple of varing answers again, I've listed what I found below. Does anyone know for sure what the rule is???


From the Internet:
Did you have a Chapter 7 discharge within 4 years of filing a new Chapter 13? Then you won’t get a Chapter 13 discharge after you finish your payment plan.

Did you get a Chapter 13 discharge within 2 years of filing a new Chapter 13? Then you won’t get a Chapter 13 discharge after you finish your payment plan.

Advantages to Each
So does that mean I can file for Chapter 13 as often as I want?
You can file, but under the new bankruptcy law, it may not be possible to complete the bankruptcy and be discharged from your debts. A Chapter 13 debtor will be denied discharge if he or she received a discharge in a case filed under Chapter 7, 11, or 12 during the previous four years, or in a Chapter 13 case filed during the previous two years. The advantage of being able to refile under Chapter 13 (even if debtors are not permitted discharge) is that debtors are given the temporary protection of the automatic stay. The benefits of having a period of time—up to five years—to deal with secured debt, a time in which unsecured creditors must suspend their collection efforts, may outweigh not being able to get a discharge at the end of that period.


Chapter 13 cannot be filed unless:
The debtor received a discharge under Chapter 7, 11 or 12 more than four years ago; or
the debtor received a discharge under Chapter 13 more than two years ago.

The Chapter 13 Discharge
The bankruptcy law regarding the scope of the chapter 13 discharge is complex and has recently undergone major changes. Therefore, debtors should consult competent legal counsel prior to filing regarding the scope of the chapter 13 discharge.
A chapter 13 debtor is entitled to a discharge upon completion of all payments under the chapter 13 plan so long as the debtor: (1) certifies (if applicable) that all domestic support obligations that came due prior to making such certification have been paid; (2) has not received a discharge in a prior case filed within a certain time frame (two years for prior chapter 13 cases and four years for prior chapter 7, 11 and 12 cases); and (3) has completed an approved course in financial management (if the U.S. trustee or bankruptcy administrator for the debtor's district has determined that such courses are available to the debtor). 11 U.S.C. § 1328. The court will not enter the discharge, however, until it determines, after notice and a hearing, that there is no reason to believe there is any pending proceeding that might give rise to a limitation on the debtor's homestead exemption. 11 U.S.C. § 1328(h).


See what I mean??? I'm wondering if you can file and get the auto stay and be approved for a payment plan, then once the 4 years have past are you eligable then for discharge?




My understanding is this (and I'm not a lawyer, so I could be wrong): If you have had a Chapter 7 discharge within the last four years, you can still file for Chapter 13 and get the benefits of the automatic stay. However, at the end of the five years, you would not get a discharge of the remaining debts (even though it would have been more than the four years by then). In order to be eligible for a discharge at the end of the 13, you would need to not file it until four years after your 7 discharge.

Again, that's just my understanding from what I've read and been told, so hopefully someone with more knowledge will confirm that or correct me . . .

Sub: #1 posted on Fri, 08/29/2008 - 17:30

alias1958 alias1958

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I think alias sounds about right...

The lawyer that said you can file anytime is right. You can file every 6 mos if you wanted to, but that doesn't mean they'll be discharged.

Also consider that it takes a trustee's objection in order for the court to deny discharge. If you have a trustee not minding his P's and Q's that doesn't realize you went BK before, you could slide on through with no objections and get a discharge. --- I've seen people file Chap 7 two years in a row and get discharges on both because the trustee didn't realize what was going on...

Sub: #2 posted on Fri, 08/29/2008 - 17:42

DebtCruncher DebtCruncher
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ok so you guys think its from the last filing date and not the discharge date?

Sub: #3 posted on Fri, 08/29/2008 - 19:00

lmale lmale

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I THINK the four years starts ticking on the date of your Chapter 7 discharge, and the clock keeps ticking until you file a Chapter 13.

Sub: #4 posted on Fri, 08/29/2008 - 20:17

alias1958 alias1958

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ok so one more question. Can you file and agree to pay the full amount owed over 5 years and still get the protection? Meaning file to get the collections protection and not to reduce the debt? Do they stop finance charges and late fees that way? I might be dreaming, but I thought I'd ask.

Sub: #5 posted on Mon, 09/01/2008 - 16:34

lmale lmale

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Imale, you are correct. You can file for the collection protection, but cannot get the discharge for items not fully paid thru the BK within the 3 or 5 years.

Sub: #6 posted on Mon, 09/01/2008 - 16:43

desperatelyseekingsanity desperatelyseekingsanity

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No kidding??? So let me ask one more time...We could file even though our 4 years from our 7 has not come yet, and as long as we pay the full amount owed its ok? What about the finance charges and late fees?

Sub: #7 posted on Mon, 09/01/2008 - 16:47

lmale lmale

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Reny, I think, as Desperately said, you can file, even though you had a Chapter 7 too recently to get a discharge at the end of the 13. I believe that you can still file the 13 and receive the protection against collection efforts. And my understanding is that most interest and late charges stop during a 13, so yes, I believe they would stop.

I would look for a really GOOD BK attorney, one who does pretty much BKs only and who has been doing them for a long time, and go in for a free consultation. I don't have experience in this, so I'm just going by what I've read and heard.

Keep us posted!

Sub: #8 posted on Mon, 09/01/2008 - 20:25

alias1958 alias1958

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One other thing to keep in mind. . .

You would have to pay a monthly fee to have your Chapter 13 administered by an attorney. But your savings in interest (if indeed it does stop) might more than make up for that.

Sub: #9 posted on Mon, 09/01/2008 - 21:11

alias1958 alias1958

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Imale, Alias is correct. You still get all the benefits of BK protection except for the discharge at the end. You will have to pay all your creditors, if not, at the end of the BK, those balances will still exist. All interest and fees cease on those bills, while in BK, stop.

Sub: #10 posted on Tue, 09/02/2008 - 04:47

desperatelyseekingsanity desperatelyseekingsanity

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