Can I File Bankruptcy Again?

by Dan Nunley

Question

Sometimes people who have filed bankruptcy find themselves needing to file bankruptcy again. There are many different circumstances that can cause a person who has filed bankruptcy to find themselves again struggling with overwhelming levels of debt.

Going through bankruptcy a second time is not exactly a pleasant thought – but if you’re struggling with debt, and you think you may need to file bankruptcy again, it’s important to know what your options are.

Let me start by saying that the bankruptcy laws don’t limit how often a person can file bankruptcy. Technically, a person could file bankruptcy every year if they wanted.

However, the bankruptcy laws do limit how often a bankruptcy filer can receive a bankruptcy discharge i.e. have his or her debts legally forgiven, canceled, wiped out, etc. And getting a discharge of debts is generally why a person files bankruptcy.

If you need another discharge of debts, then you must wait a certain amount of time between your bankruptcy filings.

The amount of time you must wait depends on what type of bankruptcy you previously filed and what type of bankruptcy you intend to file this time. Here are the rules:

If you previously received a Chapter 7 discharge,  you must wait 8 years before you can receive another Chapter 7 discharge (11 USC 727(a)(8)) and 4 years before you can receive a Chapter 13 discharge (11 USC 1328(f)(1)).

If you previously received a Chapter 13 discharge, you must wait 2 years before you can receive another Chapter 13 discharge (11 USC 1328(f)(2)) and 6 years before you can receive a Chapter 7 discharge (11 USC 727(a)(9)).

And to make matters more confusing, even though we’re talking about discharges, the above time periods are not measured from the dates of discharge but from the dates of case filing.

For example, if you previously received a Chapter 7 discharge and you are interested in receiving another Chapter 7 discharge, the rules say that you must wait 8 years. So you start with the date you filed your previous Chapter 7 case. Let’s say that your earlier Chapter 7 was filed on March 1, 2002. The next step is to count forward the appropriate number of years which in this example is 8 years (Chapter 7 to Chapter 7) which gives you a date of March 1, 2010. This means that you would not be eligible for another Chapter 7 bankruptcy discharge if you filed today which is May 22, 2009. Instead you would need to wait to file until next March 1. However, in this example, you would be eligible on today’s date for a Chapter 13 discharge since the waiting period from Chapter 7 to Chapter 13 is only 4 years, you would have become eligible to file your second case beginning March 1, 2006.

Lastly, as in all things bankruptcy, there are some exceptions to the above rules. Therefore, you should seek the advice of a knowledgeable bankruptcy lawyer regarding your specific situation.

If you have filed bankruptcy before and are thinking that you need to file bankruptcy again, contact me today to schedule a FREE initial consultation. Just fill out the Contact Dan form on the far right side of the page and click the Submit button and I’ll get back with you as quickly as I can. I would count it a privilege to be able to visit with you in a relaxed and confidential environment where I’ll answer all of your questions in plain English and give you the straight scoop on the pros and cons of bankruptcy as related to your specific situation.

Source: Adapted from an article by New York attorney Jay Fleischman at Bankruptcy Law Network.

{ 45 comments… read them below or add one }

Russ DeMott May 22, 2009 at 7:14 pm

GREAT article! Very useful info, Dan. How’d you get the neat graphic in there? I need to come to Broken Arrow, OK and get some tips from the master BK blogger.

Gloria Boyd May 26, 2009 at 3:29 pm

How can I find out what, if any, exceptions in bankruptcy would allow me to re-file for bankruptcy after less than 7 years from date of discharge of a previously jointly filed/discharged case.

I am now totally disabled, have little income and although I’m struggling to stay up, I’m literally drowning in debt, some of it necessity debt. I dont know what to do and wonder if there is any exceptions to having to wait the 7 or 8 years too have to file again.
Thanks for any info you might have on this.

Dan Nunley May 27, 2009 at 11:25 am

Gloria,

I have emailed you directly to discuss your situation.

Stacy June 3, 2009 at 7:20 pm

What are the “other” exemptions? I filed in the state of North Carolina in Feb 2004. I now live in California. I have two small children and I am a single parent. I was laid off May 2008 and have still not been able to find a job. I can not pay my debts. I am not making new debts, but I am overwhelmed with the ones prior to losing my job. Is there anything I can do?

Dan Nunley June 8, 2009 at 4:25 pm

Stacy,

I would recommend that you contact a competent bankruptcy lawyer near you for advice regarding your specific situation. You can find many good California bankruptcy attorneys on the NACBA Bankruptcy Attorney Finder.

Christi June 27, 2009 at 2:24 pm

Dan,

I am in the same situation as Gloria Boyd that asked you her questions on May 26 and you emailed her the answer. I filed Chp 7 in Oct 2005 before the date that the laws changed. Like I said my situation is like hers and I need to do something with all this debt. Please let me know what you think, and if I can file before the 8 yr limit.

Thanks!

vicky July 15, 2009 at 9:27 am

I filed chapter 7 in NYC on 2003 . I have found myself in debt again . i need to file again because of new debt. can i do that only 6 years after? or do i qualify for something else?

Dan Nunley July 15, 2009 at 10:33 am

Vicky,

You can file another bankruptcy at any time. However, in order to be eligible for another Chapter 7 discharge, you must wait 8 years to file a subsequent Chapter 7 case from the date you filed your previous Chapter 7 bankruptcy. However, you would be eligible for a Chapter 13 discharge currently, as you only must wait 4 years from the filing of your previous Chapter 7 case in order to be eligible for a Chapter 13 discharge. Or you could file a Chapter 13 bankruptcy, stay in it for a couple of years, dismiss the Chapter 13 and file a Chapter 7 once the 8 years have elapsed as long as you would meet the other requirements at that time for a Chapter 7 including passing the Means Test.

vicky July 15, 2009 at 10:50 am

thank you. where can i find a lawyer in ny? i cant find the one that help me file previously

Dan Nunley July 15, 2009 at 11:02 am

VIcky,

Use the Attorney Finder on the National Association of Consumer Bankruptcy Attorneys’ website here: http://www.nacba.org/attorneyfinder/

I wish you well.

Kay July 19, 2009 at 12:50 pm

Dan,
I filed Chapter 7 in August of 2006 and is was discharged November 2006. It has not been 4 years yet but I am able to file a chapter 13 although it is not able to be discharged yet. How will that help and prevent my creditors from taking further action. What will stop it from being dismissed? Will I have to refile again when it becomes eligible for discharge. Just confused on how that works.

Dan Nunley July 20, 2009 at 11:24 am

If you file Chapter 13 bankruptcy, the automatic stay which is effective upon filing the case, would prevent your creditors from taking further collection action against you. If a Chapter 13 plan is confirmed by the court, it would not be dismissed as long as you make the required plan payments each month and comply with the other plan provisions. And yes, if you wanted the Chapter 13 discharge, you would need to dismiss and refile when you became eligible for the 13 discharge. You could also wait until you again become eligible for a 7 discharge and then dismiss your 13 and refile a 7 if you qualified under the Means Test.

If you live in the jurisdiction of the Eastern or Northern Districts of Oklahoma, feel free to give me a call to discuss your specific situation. If not, I suggest you contact a knowledgeable bankruptcy lawyer near you. You can find one by using the Attorney Finder on the National Association of Consumer Bankruptcy Attorneys’ web site.

Barb August 4, 2009 at 4:17 pm

Hi Dan, I am one of those people who find it necessary to file BK 7 again before my 8 years waiting period is up. Is it possible for me to retain an attorney for creditor protection and ask them to take 8 months to file for me? My creditors are getting very agressive. I am in the Chicago area.

Dan Nunley August 4, 2009 at 4:25 pm

Barb,

I would suggest that you contact a knowledgeable bankruptcy lawyer near you and discuss your specific situation with him or her. If you do not know of a competent bankruptcy lawyer, use the Attorney Finder on the National Association of Consumer Bankruptcy Attorneys web site (http://www.nacba.org). I wish you well.

marci August 11, 2009 at 2:56 pm

we filed bk 13 in ohio in 2005 can we now file again to stop foreclosure and still get it discharged?

Dan Nunley August 13, 2009 at 10:42 am

Marci,

Based on the information you have provided, it seems that you would qualify for another Chapter 13 discharge. If you were represented by an attorney in your last 13, I would suggest you get in touch with him or her regarding your eligibilty to refile and obtain a discharge. If you represented yourself, you should contact the bankruptcy court clerk for the bankruptcy district in which you presently live.

Dan

trisha August 18, 2009 at 1:54 pm

We filed chapter 7 bankruptcy 11-30-2001 due to my husbands job loss we find it necessary to file chapter 7 again. When can we file again? 1 lawyer we called said we can file now its been7 yrs and the other said we needed to wait till december. Im confused. We reside in Pa.Thanks

Dan Nunley August 18, 2009 at 8:20 pm

Trisha,

To be eligible for another Chapter 7 discharge, 8 years must have elapsed between the date you filed your previous Chapter 7 and the date you file your subsequent Chapter 7. Therefore, if your previous Chapter 7 was filed on November 30, 2001, you would be eligible to file and receive another Chapter 7 discharge on December 1, 2009.

Dan

Bryan September 30, 2009 at 9:18 pm

Dan,

Thanks for all the info on previous posts. I was discharged July of 2003 on a Ch 7. Now, I have been unemployed for the last 7 months and depleted all resources other than UI. I realize I can’t do a 7 but not sure a 13 would help? Do I let an auto go back and live with a potential $15,000 garnishment or file yet again under a 13 and deal with it that way? Oh, to the naysayers that may read your blogs with tainted eyes; I am a 17 year commercial banking/lending veteran. It can happen to anyone anytime! Just because you get to this point as thousands are, you are not worthless pond scum.

OKC

Ghislaine October 21, 2009 at 11:07 pm

I filed for chp 7 Nov. 2002. Since then I was doing well until my husband lost his job March 2009. My 8 years will not be up until Nov. 2010 and my creditors are hounding. Is there any exceptions to the 8 year rule?

Dan Nunley October 22, 2009 at 8:19 am

Ghislaine,

No there are no exceptions to the 8 year rule regarding subsequent Chapter 7 discharges.

You could file Chapter 7 in order to invoke the automatic stay which would stop collection activity but that would last only several months and then your bankruptcy case would be closed without a discharge and the creditors would come right back.

If you are in desperate circumstances, the better option would be to speak with a knowledgeable bankruptcy attorney about filing a Chapter 13 bankruptcy for now and then when November 2010 arrives, you could consider dismissing the Chapter 13 and filing a new Chapter 7.

Dan Nunley

Jim Ullom October 28, 2009 at 12:51 pm

I filed for the first time on Nov 1 2001 amd filed again on Oct 9 2009. Not knowing about the 8 year rule. I was actually 3 weeks early on my filing. They took my filing fees and sent me a letter in 3 weeks stating I would not get a discharge because of the 8 year rule. Do I need to file agin after Nov 1 or ask the Trustee for leniency

Dan Nunley October 28, 2009 at 1:42 pm

Jim,

A Chapter 7 debtor does not have the unilateral right to dismiss his or her case and the Chapter 7 trustee has no authority regarding this situation.

One option would be to file a Motion to Dismiss Case advising the court that you were not aware of the 8 year rule at the time you filed your case. If the court grants the dismissal of your case, you could then refile and be eligible for discharge in the subsequent case. If the court denied your motion to dismiss, then you could simply refile on November 2, 2009 or later.

However, there are some complex rules and laws involved in multiple or serial case filings that impact critical issues such as the implementation of the automatic stay and whether action in a previous case precludes a debt from being dischargeable in a subsequent case.

Additionally, local rules and procedure vary tremendously from jurisdiction to jurisdiction, and I do not practice in the jurisdiction where you filed your case.

Therefore, I strongly suggest that before you do anything else, you contact a competent bankruptcy lawyer near you for advice.

KIM December 8, 2009 at 8:39 pm

I FILED A JOINT CHAPTER 13 WITH MY HUSBAND IN MARCH OF 2005. I NOW THINK I NEED TO DO A CHAPTER 7 TO GET RID OF SOME MEDICAL BILLS AND OTHER THINGS THAT ARE ON MY CREDIT. I HAVE ALSO DONE A CHAPTER 7 IN 1998 AND IN 1999. WOULD THAT PREVENT ME FROM DOING ANOTHER CHAPTER 7 OR WOULD I BE ABLE TO AND WHEN SO THAT IT CAN BE DISCHARGED? I WOULD ALSO LIKE TO FILE IT AS AN INDIVIDUAL AND NOT MARRIED.

Dan Nunley December 8, 2009 at 11:33 pm

Kim,

If you received a discharge in your previous Chapter 13 case, 6 years must pass between the date you filed the Chapter 13 and the date you file a subsequent Chapter 7 in order for you to be eligible to receive a Chapter 7 discharge.

As you do not appear to live in Oklahoma, I would suggest that you contact a knowledge bankruptcy lawyer near you for advice. If you don’t know of any bankruptcy lawyers near you, I suggest you use the Attorney Finder provided by the National Association of Consumer Bankruptcy Attorneys.

Dan Nunley

Paul December 19, 2009 at 7:43 pm

It is frustrating to me to talk to several attorneys in my area, and each one gives you a different answer. Before my wife and I met, I had filed a Chapter 7 bankruptcy as a single man in May of 2001. She also filed a Chapter 7 Bankruptcy in October of 2002. Then we have been married, and due to unemployment and layoffs, we are faced with a mountain of debt and no way still to pay with no income coming in and needing to file bankruptcy.
We have heard we need to wait 8 years, we have heard we need to wait 7 years, and we have heard we need to wait 8 years, but can re-file again in that 8th year. I have heard one say I need to file CH 7 on my debts, and my wife needs to wait, or file a CH 13 and convert over to 7 later. I have had another say we can file NOW, because we are in the 8th year, it just wont be discharged until the 8 year mark.

I just don’t know which story to go with. Some attorneys charge $800, and some charge $7000. What is your advice? I hope to get re-employed soon and making money, and when that happens I don’t want to have my income then all be taken away from me to pay for the CH 13, yet I also don’t want to necessarily wait and then have a CH 7 disqualify me for being able to file. So sometimes I think I should file seperately from my wife…but then will my income (assuming I actually get one again) will my income prohibit my wife from filing a later then?

Do you agree that I we together can FILE a Chapter 7 BK, but we just wont get the discharge until 8th year (Oct 2010). I can already see my your other comments yo udon’t agree with the wait 7 years and file again DURING the 8th year, you have to wiat until the 8th years is up and file in the 9th year actually?

Dan Nunley December 21, 2009 at 9:28 am

Paul,

To answer your question, no I don’t agree that you can both file a Chapter 7 bankruptcy now and then get a delayed discharge when October 2010 rolls around. While you are currently eligible to receive another Chapter 7 discharge, your wife is not. If she files a Chapter 7 bankruptcy now, she will NOT be granted a discharge and therefore most likely will have filed for nothing.

This issue of timing between discharges is confusing to many people. The key is to ignore the date of your previous discharge. It’s irrelevant. What matters is that 8 years must have elapsed between the date you filed your previous Chapter 7 case and the date you file your subsequent Chapter 7 case. It is critical that you know the exact day your previous case was filed and that you count forward 8 years and 1 day.

Based on your prior Chapter 7 being filed in May of 2001, eight years has elapsed and you would now be eligible for another Chapter 7 discharge. However, since your wife filed sometime in October of 2002 which is less than eight years ago, she will not be eligible for another Chapter 7 discharge until sometime in October of 2010. Hope that makes sense.

Dan Nunley

Noelle January 5, 2010 at 5:28 pm

I have a few questions Dan. I filed a Chapter 13 on 4/05 and from reading the threads I now know that I can refile another Chapter 13 at any time. If I haven’t finished paying the first Chapter 13 can I refile another, and if i do will all the interest accrue on those debts for 5 years? Also If I refile, is it possible to strip a 2nd mortgage that is underwater? My 1st mortgage is about 350K and my 2nd is about 130K, If my house is worth about 375K, can I partially strip my second as its no longer secured, or is it all or nothing?
Thanks in advance,
Noelle

Dan Nunley January 6, 2010 at 8:45 am

Noelle,

As my bankruptcy practice is limited to Oklahoma, and as your contact information indicates that you do not live in Oklahoma, I would encourage you to seek advice from a knowledgeable bankruptcy lawyer near where you live. The application of bankruptcy laws differ tremendously from jurisdiction to jurisdiction not to mention the variances in local rules and procedure. I would suggest that you check out the Attorney Finder provided by the National Association of Consumer Bankruptcy Attorneys.

Generally, while you are eligible to receive another Chapter 13 discharge if your subsequent case is filed at least two years after your previous case, the judges where I practice would not allow you to have two active Chapter 13 cases simultaneously. One of the cases would be dismissed and generally it would be the newer case. If your first case is dismissed or completed, then you should have no problem with refiling.

As far as stripping a second mortgage, where I practice the entire second mortgage must be unsecured in order to be stripped, so the second mortgage could not be stripped in the scenario you set forth.

However, as I suggested earlier, the application of bankruptcy law as well as local rules and procedure may be different where you live and therefore you should seek the advice of a knowledgeable bankruptcy attorney who practices in that jurisdiction. I wish you well.

Gem January 20, 2010 at 11:11 pm

I filed a Chapter 7 in 2002. I need to file a Chapter 7 once again. I know there is an 8 year waiting period between filing another Chapter 7, but wouldn’t I be governed by the laws in effect in 2002, assuming they were different then?

Dan Nunley January 21, 2010 at 7:48 am

Gem,

No your situation would not be governed by the laws that were in effect when you filed your previous bankruptcy in 2002. The waiting period with which you must comply is the waiting period that is in effect at the time you file a subsequent bankruptcy case. Therefore, the time periods with which you must comply are those established by the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) which took effect in October, 2005, which now require an eight year waiting period between the filing dates of two Chapter 7 bankruptcy cases in order for the debtor to be eligible to receive a discharge in the subsequent case.

ronald September 2, 2010 at 2:22 pm

Me and my wife filed bankruptcy in 2006 and lost my job early this year I have bipolar disorder. The doctors advised me to quit my current job “I have documents” because it was a issue with my bipolar now that i dont have a job my debt is getting behind more and more. Is this an exception to be able to file earlier then the 8 years?

Dan Nunley September 16, 2010 at 9:20 am

Ronald,

No, there is no exception. You will not be eligible for another Chapter 7 discharge until eight years has passed from the date you filed your previous Chapter 7 case. You might consider filing a Chapter 13 bankruptcy at this point as you would be eligible for a Chapter 13 discharge once four years have passed from the date you filed your previous Chapter 7 case. I suggest that you contact a knowledgeable bankruptcy attorney near you for advice. I wish you well.

Dan Nunley

Shannon November 9, 2010 at 9:59 pm

Dan,

First of all, thank you for all the information you provide on your web site.

My ex-husband and I filed Chapter 7 bankruptcy on 01/04/02. Within 3 years he had driven us back into debt again. Unfortunately I was dumb enough to allow all of the debt to be only in may name. We divorced and he was ordered to pay all of the debt but of course he hasn’t. I lost my job then I attended school for 3 years. I’ve been back to work now for a year and the creditors are starting to come after me now that I have an income again. One of the creditors told me that I couldn’t file bankruptcy again until 2012. Is that right?

Thanks,
Shannon

Dan Nunley November 11, 2010 at 1:16 pm

Shannon,

The creditor lied to you. You became eligible to receive another Chapter 7 discharge on January 5, 2010. Eight years must elapse from the date you filed your previous Chapter 7 bankruptcy and the date you file a subsequent Chapter 7 case. I wish you well.

Dan Nunley

Wilson Ford November 25, 2010 at 2:28 pm

Hi, I need to file chapter 7. I filed in 1999 and yes I am in trouble again. I lost my job about a year ago. My telephone number is: 917-335-4171. Thanks and hope to speak to you soon.

Dan Nunley November 26, 2010 at 9:36 am

Wilson,

I am an Oklahoma attorney licensed to practice law only in Oklahoma. Since you are a resident of New York state, I cannot give you legal advice. Therefore, I suggest that you contact a knowledgeable bankruptcy attorney near you. You may want to use the Attorney Finder provided by the National Association of Consumer Bankruptcy Attorneys (http://www.nacba.org/attorneyfinder/). I wish you well.

Dan Nunley

anne December 29, 2011 at 1:31 pm

Hi Dan,

I filed chapter 7 in 2005 and was discharged and i was single then. Now that I am married, my husband has credit card debts on his name and I am not connected to any of his credit cards. Do I need to file with him? We live in California. Thank you.

shelly whorton December 30, 2011 at 10:16 pm

We filed close to 8 yrs ago and need to file again. We need to know if we can file another chapter 7.

Dan Nunley January 12, 2012 at 11:41 am

Anne,

First, you are not even eligible to receive a second Chapter 7 discharge at this point in time as eight years must elapse between the filing dates of two Chapter 7 bankruptcies in order for you to be eligible for a discharge in the second case if you received a discharge in the first case. Second, when two people are married, the bankruptcy laws do not require that they both file bankruptcy. One spouse can file bankruptcy all by himself or herself if that makes sense in their specific financial situation. Since I am an Oklahoma attorney and you are a California resident, I would suggest that you seek further advice from a knowledgeable, experienced bankruptcy attorney near you. I wish you well.

Dan Nunley

Dan Nunley January 12, 2012 at 11:44 am

Shelly,

If you received a discharge in your previous Chapter 7 bankruptcy, then you won’t be eligible to receive another Chapter 7 discharge unless you wait to file the second case until a full eight years has elapsed from the date you filed your earlier case.

Dan Nunley

Bry March 19, 2012 at 8:53 am

Hello Dan,

I am currently in the process of filing bankruptcy. I am married but I will be filing individually as my wife and I have separate creditors. However, my wife is now considering filing bankruptcy. Will she be allowed to file bankruptcy after I file or must she wait 8 years because we are married? We live in California. Also, is there is a cap as to the amount of debt that can be discharged? Thanks in advance.

Dan Nunley March 21, 2012 at 8:56 am

Bry:

Your bankruptcy filing would not prevent your wife from also being able to file as long as she herself qualifies.

There is no cap on the amount of debt that can be discharged in a Chapter 7 bankruptcy but there is a cap in a Chapter 13 bankruptcy.

Since I’m licensed to practice in the state and federal courts of Oklahoma and you are a resident of California, I would suggest that you seek further advice from a knowledgeable bankruptcy attorney near you. I wish you well.

Dan Nunley

Melissa February 25, 2013 at 9:19 am

I filed chapter 7 in 2008. Can i file chapter 13 now?

Dan Nunley February 25, 2013 at 2:39 pm

Melissa:

If you received a discharge in a previous Chapter 7 bankruptcy, you will be eligible for a Chapter 13 discharge when at least four years elapse between the date you filed the previous Chapter 7 and the date you file the subsequent Chapter 13.

Dan Nunley

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