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

Date: Fri, 08/29/2008 - 16:45
Submitted by lmale on Fri, 08/29/2008 - 16:45
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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 . . .


Submitted by alias1958 on Fri, 08/29/2008 - 17:30

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...


Submitted by DebtCruncher on Fri, 08/29/2008 - 17:42

DebtCruncher

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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.


Submitted by lmale on Mon, 09/01/2008 - 16:34

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!


Submitted by alias1958 on Mon, 09/01/2008 - 20:25

alias1958

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so I'm assuming even though you don't get the discharge it will seriouly reflect negetive on the CBR? Which at this point doesn't really matter I just wondered. One more question, while in the chapter 13, is a person allowed to get student loans? The reason I'm asking is I'm also getting pressured by my job to finish my degree, they will only pay half, so at this point student loans would be my only option, however if I'm not allowed to take any out, not sure how to pull that off. Thanks


Submitted by lmale on Tue, 09/02/2008 - 04:53

lmale

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Imale, instead of BK, the dmp program usually works with your creditors to reduce interest rates and fees. Typically you will pay them back over 3 to 5 years. Very similar to a Chap 13 BK but w/o the permanent derogatory mark on your CR. While in the program, your creditors may report that you are in a DMP, but when completed, any notation is removed and your credit should have recovered perfectly if you make all your payments on time. Usually you only pay a small enrollment fee (ie $50) then a monthly fee of $50.

Are you current on your bills or past due? Are you being harrassed by collectors and that is why you are thinking about BK? Just wondering why you think BK is your main option?


Submitted by desperatelyseekingsanity on Tue, 09/02/2008 - 07:12

desperatelyseekingsanity

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UPDATE Again:) I had my appt today the lawyer says we can do it!!! We will have to pay back 100%, however, no sueing us, no judgements, no interest, no late fees!!! THANK GOODNESS< The nightmare is going to end....The payment will be lower then T & C and the settlement company. The will allow us to save more money, so we can pay it off sooner than later....THANKS for everyone's help!! RENY


Submitted by lmale on Wed, 09/03/2008 - 18:25

lmale

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While in the dmp, the payments were still to high for us. Plus many of the PDL's that T & C said worked with them, kept persuing me. I can't take the stress of the constant phone calls. They will get 100%, since we had a BK a few years ago. But all fees and interest will stop, which doesn't happen in DMP. My credit is SO bad at this point that part doesn't matter.


Submitted by lmale on Thu, 09/04/2008 - 17:51

lmale

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