25 Mar Am I Allowed to Refile My Chapter 13 Case?
With the recent rise in gas prices and the ripple effect resulting in increased costs of many goods and services, Chapter 13 debtors may very well discover that a payment plan which worked a year ago no longer works at all. Here in Atlanta, we are seeing a significant number of Chapter 13 cases fail when debtors fall behind on their trustee payments and end up with a dismissed case.
What happens if your Chapter 13 case gets dismissed? Can you refile to stop a pending foreclosure?
The short answer is “yes” you can refile unless there a specific order from the bankruptcy judge or in the Bankruptcy Code prohibiting a refile. We sometimes see orders disallowing refiling if the judge holds a hearing and finds that a debtor is abusing the bankruptcy process – for example if co-owners of a house file multiple Chapter 13 cases solely to stop foreclosure. The Bankruptcy Code also disallows a refiling if you have voluntarily dismissed a prior following the filing of a motion for relief (this is one of the reasons why voluntarily dismissing a Chapter 13 case is usually not a good idea).
Being eligible to refile a case is one issue – the automatic stay is another. Refiling may or may not stop a foreclosure. Under the BAPCPA changes to the bankruptcy laws, the automatic stay may be limited or non-existent in a refiled case. Rachel Lynn Foley of the Bankruptcy Law Network discusses the automatic stay rules relating to refiling a Chapter 13 on this informative blog post.
Jonathan Ginsberg, Esq.
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