Re-Filing Chapter 13 Bankruptcy in Detroit, Michigan
Re-Filed Chapter 13 Bankruptcy: Can You Do It?
If your Chapter 13 bankruptcy is dismissed, voluntarily or involuntarily, you have the right to re-file a new Chapter 13 so long as the new filing is what the courts like to call a “good faith” filing. That is, it can’t be simply for the purpose of the short-term evasion of creditors when you have, perhaps, no financial ability to fund a “feasible” Chapter 13 payment plan process (as well as other “bad faith” circumstances).
Presuming for the purposes of this post that you are NOT considering re-filing a Chapter 13 bankruptcy for “bad faith” purposes, what are the restrictions on re-filing? And what’s different in the re-filed case?
Detroit Michigan Bankruptcy: Re-filing Chapter 13, What Is the Same the Second Time Around?
In the re-filed Chapter 13 bankruptcy case, some things will be the same. You will need to re-retain your attorney or a different attorney, likely pay your attorney a new retainer, pay a new court filing fee (currently $310.00), and pay for and complete a new pre-filing credit counseling course (unless your case was dismissed so quickly that it has not been more than 180 days since you first took it).
You’ll need a new Chapter 13 bankruptcy petition prepared by your attorney with updated information current as of the new, prospective date of filing, and a new Chapter 13 payment plan.
All the work you did the first time with your attorney will need to be re-done, in other words.
Re-Filing Chapter 13 Bankruptcy: What Is Different in the Re-Filed Case?
The primary difference, presuming your prior Chapter 13 wasn’t dismissed under some level of duress, is that you need to explain to the Court why you should have the “automatic stay” extended from your last case to the new one.
To refresh, the “automatic stay” is the injunction that activates upon the filing of the bankruptcy matter that causes all collection activity to cease immediately. The automatic stay is the reason that creditors cannot continue to sue you or garnish your wages or foreclose your home, among other things, when you file a bankruptcy.
When you file a bankruptcy petition more than a year from a prior case’s dismissal, the stay injunction is, as advertised, “automatic.”
When you file the new case within that time-frame, it is not automatic.
If you re-file your case within 30 days of the dismissal of the prior case, you can file a motion to have the stay “extended” to the new case. When this motion is granted, it continues on for the length of the new Chapter 13 as if the old one had not been dismissed.
The motion requires that you prove that your new, re-filed Chapter 13 bankruptcy case has been filed in good faith and is likely to be (mathematically) feasible.
If you don’t file the motion or your motion isn’t granted by the Court, you’ll have no automatic stay in the re-filed case.
If you’re filing a third case within a year, the automatic stay simply doesn’t apply.
Detroit Michigan Bankruptcy: The Bottom Line
The bottom line is that, if you are filing or re-filing a Chapter 13 bankruptcy, it is essential that you retain an experienced attorney to assist you.
Attorney John Hilla would be pleased to discuss your matter with you. Contact Us Here, or call (866) 674-2317.