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May I file a chapter 13 bankruptcy if I have filed one before?



This is complicated and is the subject of the new bankruptcy law, much of which is still being decided by the courts and can be inconsistent. Before the new bankruptcy law passed, a debtor could file as many chapter 13 bankruptcies as the bankruptcy court would allow. Usually, these were filed to stop foreclosures. If one chapter 13 bankruptcy was dismissed for failure to pay the chapter 13 trustee or because the bank obtained permission to foreclose on the debtor’s house because he didn’t make his payments on time, then the debtor could file another case to stop the sale of the house. There was no restriction on how many chapter 13 bankruptcies a debtor could file.

This is not to say that the courts allowed abuse. Generally, if a debtor filed more than two chapter 13 bankruptcies that did not work, the third one would not be allowed. The new bankruptcy law has several restrictions on a debtor’s filing more than one chapter 13 case. These can be complicated, but I will oversimplify it by saying that: (1) a debtor cannot discharge or wipe out any amounts of debts his chapter 13 bankruptcy plan does not propose to pay in full in the plan IF he has filed a previous chapter 13 bankruptcy which was completed and discharged within the last four years; and (2) if a debtor has had a chapter 13 case dismissed within a year prior to filing his next chapter 13 bankruptcy, then there is no automatic stay or protection from your creditors in the second chapter 13 bankruptcy case without: (1) having a hearing in SC, or (2) giving the creditors a chance to ask for a hearing in NC.

In South Carolina, if you have to file a Motion to Exend Stay (the thing in the last paragraph), it is very clear that you must have some real proof and testimony that shows that there has been a real positive change in the debtor’s finanincial situation since the dismissal of the previous case in the prior year that will indicate to the Court that it is likely that the debtor will make it in the second case in which you are filing a motion to extend.

The bottom line is, think of your first chapter 13 bankruptcy as your last chance and do everything you can to make it work. If it does not, see an experienced bankruptcy attorney to help you with the second one.





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