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Filing for Bankruptcy More than Once

This article was prepared by Legal Aid of Northwest Texas and provides general information about filing for bankruptcy a second time. If you need advice specific to your case, talk to an attorney in private practice. 

Can I file for bankruptcy more than once?

Yes. But filing again might not help you. Also, it depends on how long ago your last bankruptcy was filed and whether it was completed successfully (that is, discharged).

How much time must pass before I can re-file for bankruptcy easily?

Sometimes, you can file a new case under any chapter for which you are eligible. This will give you maximum protection (an automatic stay) from your creditors as soon as you file.

If you have filed for bankruptcy before, you can get an automatic stay from your creditors as soon as you file for bankruptcy if you:

  • Have not filed any cases in the last eight years that ended successfully; or
  • Have had no cases dismissed in the last year.

If you have a prior successful bankruptcy case in which you were relieved (discharged) from your debts, then that case must have been filed more than eight years ago for you to file again.

Also, you must not have had any cases that ended unsuccessfully (were dismissed) within the last year. To calculate: When looking back at prior successful (discharged) cases, you look at the filing date of the case. When looking back at prior unsuccessful (dismissed) cases, you look to see how long ago those cases were dismissed. 

Can I file for bankruptcy if I had a prior successful bankruptcy under eight years ago?

If you had a prior successful bankruptcy less than eight years ago, you can file a new case under any chapter for which you are otherwise eligible. But protection from your creditors will be limited, and maybe not automatic.

The easiest way to explain this possibility is with a made-up illustration.

Let’s call your prior successful case “Old Case” and your new case “New Case.” Here’s how the dates line up. If the old case was filed too recently, that doesn’t mean you can’t file your new case. But you won’t get a discharge in the new case. The other thing that matters is what chapter of the Bankruptcy Code the old case was filed under and what chapter the new case will be filed under.

The general idea is that the court favors Chapter 13 over Chapter 7. That’s because with Chapter 13, you’re trying to reorganize and repay your creditors. So, shorter deadlines are available to you when you previously filed a Chapter 13 or want to file a Chapter 13 now. The longer deadlines are when you previously filed a Chapter 7 or want to file a new Chapter 7. 

SUCCESSFUL PRIOR CASE (Old Case)

NEW CASE

WAIT TIME (FROM FILING DATE OF OLD CASE)

Chapter 7

Chapter 7

8 years 

Chapter 12 or 13

Chapter 7

6 years

Chapter 7, 11, or 12

Chapter 13

4 years

Chapter 13

Chapter 13

4 years

 

What if I had one or more unsuccessful bankruptcy cases in the last year?

You can still file a case and get maximum protection (an automatic stay) from your creditors. But your prior, successful (discharged) bankruptcy will limit what chapter you can use to get a discharge in your new case. The prior case may mean that you won’t get a discharge at all in the new case.

This comes up when you have had one or more dismissed cases (unsuccessful cases) in the last year. This is not a limit on whether your new case will get you a discharge. It is a limit on how much time, if any, you will get protection from your creditors once you file your new case.  The general rule is simple:

  • If you have had one case dismissed within the past year (that is, the date of the dismissal order is less than one year ago), then you only get 30 days of automatic stay (protection from your creditors). If you want protection for longer than 30 days, file a Motion for Continuation the Automatic Stay telling the court why the new case was filed in good faith.
  • If you have had two or more cases dismissed within the past year (that is, there are two or more dismissal orders dated less than one year ago), you don’t get an automatic stay. You have to file a Motion to Impose an Automatic Stay telling the court why the new case is filed in good faith, including information such as what happened in the recent prior cases, and what has changed for the better since the other cases were dismissed.

 

When are you ineligible to file for bankruptcy again?

You can’t file a case under any chapter for 180 days after the dismissal of your most recent case. Other things that make you ineligible include certain requests made to the bankruptcy judge (called motions) in the prior case, or certain orders entered granting those requests.

The question is whether you have a right to file a case at all. If you, the debtor, file a case when you are ineligible, the court will swiftly dismiss the new case and impose a further period of ineligibility (called a bar).

Section 109 of the Bankruptcy Code lays out who is eligible to be a debtor; that is, who may file a bankruptcy case, and under what chapter. Section 109(g) says that if your prior bankruptcy case was dismissed for either of two reasons/circumstances, you will not be eligible (you are legally not permitted) to file another case until 180 days after the dismissal of your prior case.

Here are the two ways that dismissal of a prior case can prohibit you from filing a second case until the 180-day period passes:

  • Your first case was dismissed for “willful failure of the debtor to abide by orders of the court, or to appear in proper prosecution of the case.” Normally the order dismissing the first case will make it clear that there is a 180-day bar to refiling.
  • The first case was voluntarily dismissed on the debtor’s motion after one or more creditors filed a motion to get out of the bankruptcy, called a Motion for Relief from the Automatic Stay.
    • This happens sometimes where the debtor is supposed to be making mortgage payments directly to the mortgage company but also is making separate payments to the Chapter 13 trustee under the Chapter 13 plan.
    • If the debtor misses some mortgage payments, the mortgage company will ask the bankruptcy judge, in a Motion for Relief from the Automatic Stay, to enter an order letting the mortgage company be removed from the bankruptcy so that they can foreclose on the debtor’s house. The debtor then sees this and files a Motion to Voluntarily Dismiss the entire bankruptcy, probably with an eye toward filing a new bankruptcy before the mortgage company can foreclose.
      • But that strategy will not work. The voluntary dismissal creates a 180-day bar, so the debtor cannot file a second case until that 180-day period runs.