Kentucky Bankruptcy Law

Counsel with Care

Timing between consecutive Chapter 13s

I am doing a series on timing between filings of bankruptcies and began looking at the time between two Chapter 7 filings. Today is looking at the time between Chapter 13s. As I stated previously, the issue is not when one can file, but when one can receive a discharge in the subsequent case. The time issue for a 13 to a 13, unlike other scenarios, is open to litigation.

If the preceding bankruptcy was a Chapter 13, then you cannot receive a discharge in a subsequent Chapter 13 if it is filed  two (2) years or less from the prior Chapter 13. However, it remains unclear in the Sixth Circuit (including Kentucky) if this means two years from the discharge of the prior Chapter 13 or the date the first Chapter 13 was filed. See 11 USC Sect. 1328(f)(2). I believe the most likely reading is from filing date to filing date due to the similarity in language of the statute. However, one should be aware that this has not been squarely decided in the Sixth Circuit and there are arguments on the other side. The main argument on the other side is that it really makes no sense to have a two-year period when Chapter 13s run three to five years, but that really only makes this statute cover a rare situation, not an impossible one.

4) If the preceding bankruptcy was a Chapter 13 (or Chapter 12), then you cannot receive a discharge in a subsequent Chapter 7 if the Chapter 7 was filed within six (6) years of when the preceding bankruptcy was filed. See 11 USC Sect. 727(a)(9). There are two exceptions: if there was 100% payment to unsecured claims in the Chapter 13 or if there was 70% repayment AND it was the Debtors’ best effort.

5) If there was no discharge in a preceding Chapter 7  or Chapter 13, then there is no time limit on filing with regard to receiving a discharge. However, there is an impact on the automatic stay which is not covered here.

When I say “within” I advise to wait that period of years and then one can file the day after that period has run.

May 24, 2013 Posted by | Bankruptcy, Chapter 13, Discharge, Planning, Pre-filing planning, Priority debt, Student loans, Tax Debts | , , , , , , , , , , , | Leave a comment