My Chapter 13 Was Dismissed Two Weeks Ago – Can I Refile a Chapter 13?
A visitor to one of my web sites wrote me to ask about refiling his Chapter 13. After being in a Chapter 13 for almost 2 years, this gentlemen lost his job and fell behind with his Chapter 13 payments. His mortgage company filed a Motion for Relief because he had falled behind on his mortgage payments (this motion was granted) and the trustee filed a motion to dismiss based on the delinquency in trustee payments. This motion to dismiss was also granted and the case was dismissed.
Now, some 6 weeks later, the mortgage company has started foreclosure proceedings and my visitor wants to know if he can refile the Chapter 13 to stop the foreclosure.
Here are my thoughts: under the BAPCPA changes to the bankruptcy law, a debtor can refile his Chapter 13 case. However, if case #2 is filed within 12 months that case #1 was pending, then the automatic stay is not absolute. Instead, the automatic stay does go into effect, but it terminates in 30 days unless the debtor files a motion with the court and convinces the judge to extend the stay.
Thus, my site visitor can refile his case, but he and his lawyer need to immediately file a Motion to Extend the Stay. Some judges will extend the stay for pretty much any reason, while others will want to see a significant change in the debtor's circumstances.
If the judge does not extend the stay, then it would come to an end in 30 days and the mortgage company would be free to re-start foreclosure proceedings.
Note that there are different rules for a 3rd case filed within any 12 months when prior cases were pending, or if the debtor had voluntarily dismissed his prior case – subjects for a different blog post. In the meantime, my colleague Rachel Lynn Foley does tackle some of these issues in a helpful post published on the Bankruptcy Law Network blog.
Filed under Automatic stay issues, Chapter 13 issues, Extending the Automatic Stay by 
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Jonathan Ginsberg
Comments on My Chapter 13 Was Dismissed Two Weeks Ago – Can I Refile a Chapter 13?
The trustee wants to dismiss my chapter 13 because they say I'm behind in my payments. I have looked over my ledger and I do not see any missed payments. I don't want to lose my house. Will the mortgage company try to work with me because my financial situation is much better. I thought rather than try to get rid of a foreclosure, they might want to work with me.
Carol: You need to contact your attorney to enlist his help to find out why the trustee contends that you are behind with your payments. Perhaps a claim came in higher than expected. Perhaps a payment did not get posted. If there is, in fact, a deficiency, your attorney will most likely be able to work out a deal (a consent order denying the trustee's Motion to Dismiss). If your case does get dismissed, you should speak to your mortgage lender immediately. Every mortgage company is different, but I can't imagine that too many lenders want more inventory on their hands, especially if the borrower (you) has the capacity to pay.
I filed Bankruptcy about 2 1/2 years ago, I recently got behind on my mortgage payments because I misunderstood that my monthly payments increased almost double because of the escrow account being in the negative, I could not afford the double payments so I continued to pay just a little above the regular payments.And now the mortgage company is asking for a stay of relief because they are now saying I've missed some payments.If a stay is granted what are my options. I can't come up with all the money, so what are my options.I don't want to sell the property,how to I keep my house. Up unti this all of my trustee payments are made and mortgage payments were made.
Marie: You should contact your lawyer and ask him to contact the attorneys for the mortgage company about entering into a consent order to cure the post-petition arrearage.
Jonathan
I GOT A LETTER IN THE MAIL THIS AFTERNOON STAMP BY THE JUDGE SAYING MY CHAPTER 13 IS DISMISS I LEAVE IN WALTERBORO, SC NOW I SPOKE WITH MY LAWYER ON MONDAY TO FIND OUT HOW MUCH TIME I HAVE TO GET THE PAYMENT IN AND HE TOLD ME AS LONG AS I GOT IT IN BEFORE THE END OF THE MONTH SO CAN YOU PLEASE TELL ME WHAT ARE MY OPTIONS NOW.
Richard: Most bankruptcy courts will allow you to reopen a case, especially if you move to reopen quickly and if you can bring your case current. I think the lesson here is that if you fall behind on your Ch. 13 payment, then you risk dismissal without notice or hearing. If you file a Motion to Reopen your case, there will be a filing fee involved. You should speak with your lawyer about whether moving to reopen makes more sense than refiling.
I filed a chapter 13 bankruptcy on March 27, 2008. I surrendered my car 10 days after filing. I went to the creditors meeting, and of course, none of my creditors showed up and the trustee said everything in the case was good and that there were no foreseeable problems. Today(7/9)I get a letter in the mail from the company I had my car lien with. The letter states that I have yet to surrender the car and that they are now trying to lift the protection I have within my bankruptcy. My question is, why would they wait 3 months to send a letter about the car…and why would they say they dont have possession of the car?? Please let me know what you think as I am awaiting information from my attorney.
I received a letter from my Chapter 13 Trustee indicating he has filed a motion to dismiss, because I failed to remit 2006 and 2007 income tax returns and one-half of refunds, if any. In addition, this plan is currently not feasible to complete within five years. The five-year maximum is up July, 2008 and the trustee still needs over $1,500.00 plus the missing tax refunds in order to complete the plan. I have been in my Chapter 13 since 2003. What are my options?
hello I have filed chapter 13 and now I'm behind on my house payment and cannot make it up will thay take my house?
Hi. I have fallen behind on my mortgage AND my ch. 13 payments. Several reasons for this. One is in May my husband was laid off for 4 weeks and then re hired but took a pay cut. Two is that in June of 07 my mortgage rate adjusted and we couldn't afford the payments. Three is that we started a refinance process on our home in January of this year. Well our attorney kept making paper work mistakes and since it has been so long no one will give us the refi. Now the attorney is trying to dismiss the case and is not returning my calls. The way I see it, if he'd done his job right back in January, everything would be fine. What can I do?
we filed a chapter 13 but cant keep up with the almost double payments on our mortgage, in the middle of our chapter 13 my husband had to get a new job with less money. Can we now file a chapter 7? the banks are now asking to yet again foreclose on our house
I have a dismiss hearing tomorrow due to being behind. I'm waiting on the funds to make it current. If it does not get here in time to make it current before the dismiss hearing, can i make the payment next week and reopen the case. thanks
I filed a chapter 13 back in 2005. I pay a monthly charge of 636.94 a month It is automatically deducted for my pay check. I was told last week, by the trustee, that there is not enough is being deducted to satisfy the claim. It would exceed the 60 month period. Shouldn't my attorney have fixed this earlier. It is now a possibility that it could be dismissed.
Help – I'm a week away from confirm and trustee will dismiss. We are too far off on payment. He wants 2k we put in for 600. My overhead is more than my take home. I don't know what to do. Lawyer says dismiss and refile but stay lift will unleash sharks.
We are over a year behind on our house payments. My husband was fired In 2007, for taking too many days off. We both been taking care of our mothers who were dying. We had filed chapter 13, but it was dismissed because our paralegal was missing paper work like tax, bank statements etc. We started in middle of may and it was finally dismissed in September. Can we go refile chapter 13 again? Is there limit to how many times we can refile 13 after a dismissal? Las vegas, nv. Thank you
please explain, I received a letter from the trustee office stating the judge was in support of the order to dismiss my chapter 13. The letter had a listing of all my payments and they were at 25%. The letter also stated that the case was feasible. Please tell me if that means that my case has or has not been dismissed. The term " case is feasible" is confusing to me.
Thank you
Jane, the notice you describe does not sound familiar to me. You should ask your lawyer. If your Chapter 13 was recently filed, this may be an objection to confirmation, which means that the trustee has objections but does not mean that your case has been dismissed. On the other hand, if your case was confirmed and you were subject to the terms of a consent order on the trustee's motion to dismiss, this notice could be speaking of a dismissal. Again. call your lawyer – that's why you have one. Your comment did prompt me to write an article about the confusing nature of bankruptcy notices – see http://bit.ly/b0q3og.