Last updated: October 23rd, 2020
Reading time: 5 minutes
One breath summary: If you have filed bankruptcy in the past, you may wonder if and when you can file for bankruptcy protection again. The answer depends on what type of bankruptcy you filed before, what type of bankruptcy you want to file now, how much time has passed since the last bankruptcy was filed, and whether your debts were discharged in your prior bankruptcy.
It is important to recognize that there is a distinction between your eligibility to file a bankruptcy case and your eligibility to have your debts discharged in bankruptcy. Strictly speaking, there are very few restrictions against repeat bankruptcy filings; you can generally file bankruptcy as often as you want. But, in most bankruptcy cases, the Bankruptcy Code imposes time limits, or waiting periods, on having your debts discharged.
Eligibility to File Bankruptcy
First, you have to be eligible to file bankruptcy. Each type of bankruptcy proceeding has different eligibility requirements. Also, there are a few rare circumstances when you cannot file a bankruptcy case. For example, you have to wait at least 180 days to file a new bankruptcy case if your last bankruptcy case was dismissed because you willfully disobeyed an order of the Bankruptcy Court or because you requested dismissal of your case after a creditor obtained relief from the automatic stay. For more information about your eligibility to file bankruptcy, please see our article on Bankruptcy Eligibility.
Eligibility for a Discharge of Your Debts
If you are eligible for a bankruptcy filing, the more important question is whether you are eligible for a discharge of your debts. With the most common types of bankruptcy (Chapter 7 and Chapter 13), your debts can only be discharged if a certain amount of time has passed since the filing date of your last bankruptcy. Although there are a few good reasons to file bankruptcy when you are not eligible for a discharge, for most people the whole point of bankruptcy is having the debts discharged. So, determining whether you are eligible for a discharge is a critical consideration in deciding whether to file bankruptcy again.
The Bankruptcy Code imposes time limits, or waiting periods, on discharges in Chapter 7 and Chapter 13 bankruptcy proceedings. For less common types of bankruptcy (Chapter 11 and Chapter 12), there are no time limits and your debts can be discharged as often as you file bankruptcy.
For a Chapter 7 bankruptcy, you are not eligible for a discharge if you received a discharge in another Chapter 7 or Chapter 11 case filed within the prior eight years, or in a Chapter 12 or Chapter 13 case filed in the prior 6 years, unless the prior Chapter 12 or Chapter 13 payment plan either paid 100% of the unsecured claims or paid 70% of the unsecured claims and was proposed in good faith and represented your best effort.
For a Chapter 13 bankruptcy, you are not eligible for a discharge if you received a discharge in another Chapter 13 case filed in the prior two years, or in a Chapter 7, Chapter 11 or Chapter 12 case filed in the prior four years.
These rules can be difficult to understand. This table should give you a better picture of the time limits between bankruptcy filings:
These waiting periods are calculated from the filing date of your prior bankruptcy proceeding, not the date that you obtained a discharge in the prior proceeding.
What if You Did Not Receive a Discharge in Your Prior Bankruptcy?
These time limits only apply if you received a discharge of your debts in your prior bankruptcy case. In other words, if you filed a bankruptcy, but your debts were not discharged in that proceeding, then these time limits do not apply.
However, there may be other limitations on a new bankruptcy filing. As discussed above, you may have to wait to file a new bankruptcy case if your prior bankruptcy was dismissed or if the Bankruptcy Court entered an order prohibiting you from filing a new bankruptcy case. Also, if your prior bankruptcy case is dismissed within the past year, you may not be eligible for the protection of the automatic stay. Lastly, if your discharge was denied or revoked in the earlier bankruptcy case, you may not be able to discharge the debts from the earlier bankruptcy in a subsequent bankruptcy. These situations can be complicated and require the assistance of a competent bankruptcy attorney.
If you have questions about your prior bankruptcy filing and whether you could file another bankruptcy case, please feel free to contact Brian T. Hemphill, P.C. to schedule a consultation.