QUESTION
Am I able to re-file without waiting if I have a without prejudice dismissal of a Chapter 7?
Asked on Oct 30th, 2013 on Bankruptcy - Michigan
More details to this question:
I filed Chapter 13 with attorney. Attorney missed the information and put incorrect information. I figured this out after examining the bankruptcy paper and researching tons of bankruptcy laws/rules. I fired attorney and I took over for a couple of weeks while I tried to find attorney. I found an attorney but they ended up doing nothing but set up creditors meeting again, but had not fixed list of creditors, or anything. I asked her about conversion, as Chapter 7 was better plan we should have done. She wanted $2200. I researched information and had found out some much information before, I decided to convert on own. I filed conversion from Chapter 13 to Chapter 7. I was missing a schedule that I was trying to find out an expense for, so did not file all complete paperwork in time. It was not that I did not know. Our original attorney was late on paperwork so I did not think a day or two would get anywhere. I got dismissed, without prejudice, from our Chapter 7. I found out an hour after the judge signed dismissal based on missing schedules. With the dismissal being without prejudice, this means I do not have to wait the 180 waiting period, correct? After two attorneys and all the money we wasted with the mess up, we can't afford it. We are in bankruptcy here. I am capable of filing.
8 ANSWERS
Business Attorney serving North Andover, MA
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Law Offices of Andrew D. Myers
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Let's not be so quick to throw not one (1) but two (2) attorneys under the bus here. On this side of the computer, to be true, we do not have all of the facts. However, it must be noted that the petition is very clear that it is being signed by the debtor under the pains and penalties of perjury. The disclosures, also signed by the debtor, clearly spell out the debtor's obligation to file full truthful complete schedules. So, it was your obligation to provide full clear accurate information to the attorney and to assure that the petitions, statements and schedules were all complete prior to signing. To directly answer your question, you can re-file. But, the protection of the automatic stay will last only 30 days unless you file a motion to extend the stay. Please do not take it from me but read the U.S. Bankruptcy Code at 11 USC 362. I wish you the best.
Answered on Nov 05th, 2013 at 7:57 AM
David Thomson Egli
Yes, you can file immediately without waiting. If you were barred from refiling within the 180 days from the dismissal, the order of dismissal will say so.
Answered on Nov 05th, 2013 at 7:57 AM
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You can file now but would need to file a motion to extend the automatic stay. It's only good for 30 days.
Answered on Nov 05th, 2013 at 7:55 AM
Bankruptcy Law Attorney serving Livingston, NJ
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Law Office of Stuart M. Nachbar, P.C.
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Based on your facts, you interpretation is correct.
Answered on Nov 05th, 2013 at 7:54 AM
To be clear, the fact that you don't know if you can file a Chapter 7 right away, tells me that in fact you do need an attorney. It is unfortunate that you had such a bad experience with two attorneys, but I think that is the exception rather than the rule. In a Chapter 7 you have to be very careful and do it correctly or you could lose assets. That being said, it appears from what you have written, that you can go ahead and file another chapter 7 because the prior case was dismissed and not discharged. However, because this is a "successive" filing, if you need the protection of the automatic stay you will only have it for 30 days on this bankruptcy, without filing a motion to extend the automatic stay. And, that motion has to be filed immediately and you have to get the order signed before the 30 days is up. So, as you can see there are some complications that you might need an attorney to help you with.
Answered on Nov 05th, 2013 at 7:54 AM
Deborah F. Bowinski
Yes, you can file again. You will most likely also have to file a motion to extend the automatic stay.
Answered on Nov 05th, 2013 at 7:54 AM
You should file a motion to reopen the Chapter 7 case, instead of filing a new case. That will save you time.
Answered on Nov 05th, 2013 at 7:53 AM
Bankruptcy Attorney serving Livonia, MI
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Charles J. Schneider, P.C.
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If you do not need an attorney how do you explain committing your own malpractice by missing a deadline and having your case dismissed. If you do not need an attorney why bother asking a web site that provides answers from attorneys? You need a board certified attorney not a cheap or free one.
Answered on Nov 05th, 2013 at 7:24 AM