September 1, 2014

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.

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Jonathan Ginsberg represents honest, hardworking men and women in the Atlanta area who need personal bankruptcy protection. In practice for over 25 years, Jonathan teaches bankruptcy law and practice at legal continuing education seminars and he is a founding member of the Bankruptcy Law Network. Jonathan lives with his wife and children in Atlanta.
About Jonathan

Jonathan Ginsberg represents honest, hardworking men and women in the Atlanta area who need personal bankruptcy protection. In practice for over 25 years, Jonathan teaches bankruptcy law and practice at legal continuing education seminars and he is a founding member of the Bankruptcy Law Network. Jonathan lives with his wife and children in Atlanta.

Comments

  1. 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.

  2. 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.

  3. 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.

  4. 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

  5. RICHARD GETHERS says:

    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.

  6. 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.

  7. 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.

  8. Jeanette Johnson says:

    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?

  9. 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?

  10. 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?

  11. nikki sunderland says:

    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

  12. 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

  13. 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.

  14. 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.

  15. Stephanie Hampton says:

    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

  16. 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

  17. 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.

  18. I filed a Chapter 13 about a year ago and my question is if the mortgage company files a motion to dismiss would I be able to quickly convert my case to a Chapter 7 to prevent the foreclosure. This is my first bankruptcy.

  19. I have some payroll business taxes that are in the IRS collection dept. I am currently in a personal chapter 13 making payments for 9 months. I had lost two businesses and am trying to keep my only operating business. The person from the IRS said that because I have a past due amount of payroll taxes over $10,000 they may dismiss my chapter 13. If this happens can I re-file for chapter 13?

  20. me and my husband filed chapter 13. we get the judgement . but the monthly payment is high. at the time of paperwork our income was high. for last 5 months our income dropped down to 1500 less than the time bank ruptsy was filed. but the trustee monthly payment is base on before 5 months income which was higher. it is now hard for us to pay. we didnt oose our job. have job..i used to do lot of overtimes during that time. now no more..its a kind of hard for us too pay ..can u explain what to d?

  21. I filed for chapter 13 and was dismissed. I am so confused and heart broken about the dismissal and dont know what to do. My attorney did not do anything on my behalf and never advise me on what to do. I paid him too much to hire him as my lawyer and he did nothing. He did not even give me a copy of any papers I filed even I asked for it. No receipts given after I gave him a checks for the trustee and now he cannot find the other other I gave or does not even recall that I gave two checks.

  22. I about to lose my home and I seek advice from this lawyer, she adviced that to keep my home I should filed for BK chapter 7. This lady linga around my case after taken my money including the court filing fees, the court date came and she was not registry for the Alexandria Court. The judge was furious and my BK was dismissed in august 2009. Not knowledgeable enough, I thought that was the end of it after my home was taken from me. Now almost two years I lost my job due to clearance denied. I cannot find employment, I am a single parent with one child in college and the other in high school. I have no savings, my unemployment benefit bearly pay my rent. What should I do? I feel like my world is ending. I cannot live like this any more, please help me with some answers.

  23. Micki Ramirez says:

    Help, I filed a chapter 7 and it got dismissed, so I filed a Chapter 13 three days later and then voluntarily dismissed it. Then, I decided to go back and reopen my 7 and try to make it work, do I still have the automatic stay?

  24. I filed for Chapter 13 a little over a year ago. At the time our income was high enough to make the trustee payment. Since then my husband and i have both lost our jobs and we got behind on the payments. My mortgage company issued motion to lift the stay, and we attempted to catch the payments up. We both have jobs now, however my husband’s income is sporadic – really good one week, not so good the next – not reliable at all. Now again we have fallen behind and the mortgage company wants to lift the stay again. When I initially filed I was eligible for Chapter 7 but since I was one payment behind on my house my atty convinced me I should file for Chapter 13 instead (big mistake in hindsight). The monthly payment to the trustee exceeds the disposable income listed on my original Chapter 13 paperwork. We have currently fallen behind because the cost of everything (due to economy) has risen – fuel to get back and forth to work, groceries to fee my family, utilities, insurance, etc. My question is this – I believe I can make the payments to my secured creditors with our income, but not the additional 19% to all other creditors in the Chapter 13. Would I be better off to pay my house payment directly to the mortgage company, or make the trustee payment? How long does it take for a dismissal to go through? My understanding is that if the dismissal goes through, then I can file for chapter 7 or 13 again. I have tried to call my attorney for three days now and she will not return my calls. Also I have tried to talk to the mortgage company about establishing a payment arrangement to catch up, but they will not talk to me unless I get a release from my attorney, which I can’t even get her to call me so I’m not sure how to do that. One it be better to get the Chapter 13 dismissed, or convert to Chapter 7?

  25. @Christy, your question calls for legal advice, which I cannot offer in a blog comment box. Your attorney has a professional and ethical obligation to advise you – this is why you paid a fee. I would either hand deliver or sent by registered mail a letter to your attorney politely requesting a phone call. In that letter advise your attorney that if she does not call, you will contact both the judge’s office and the Chapter 13 trustee’s office to ask for their assistance in establishing communication. Note that your attorney may not have any great alternatives for you but it is always better to know something than to face the unknown. Good luck to you.

  26. @Micki – you most definitely need counsel with this. It is unusual that Chapter 7 cases are dismissed (as opposed to discharged) so I would strongly suggest that you not try to deal with this yourself.

  27. Jonathon – thank you for responding so quickly. Can you tell me, in the state of Michigan, is it possible to convert using a different attorney than the one I originally filed Chapter 13 with, or do I have to use the same one? Also I was wondering if you could tell me, if my case is dismissed, is there a waiting period of one year to re-file? (I had heard this but wanted to verify.) Thanks again.

  28. @Christy: Cristy, you can file/convert using a different attorney. I am not familiar with Michigan bankruptcy law and procedure but I suspect that the bankruptcy courts in Michigan have procedures in place to govern attorney’s fees so any new attorney needs to make the proper disclosures. Generally there is no “waiting period” to refile unless there is an (unusual) provision to that effect in the Chapter 13 confirmation order. I usually look at converting as opposed to filing a new case after dismissal since you save the extra filing fee and you show only one case on your credit report, not two.

  29. Cory Chorpenning says:

    Hello! Due to many months off from work that ended about 18 months ago, I’ve been in financial turmoil for many many months. I first turned to Debt Settlement which was working fine until my largest creditor took me to court. Last Nov, I decided to meet with an attorny to determine if a chapter 13 bankruptcy would be better for me. My attorney convinced me to do so. However, since then it’s only made my financial situation worse off due to the neglect and lack of attention I’m getting from my attorney. After 7 months of making payments, my case was dismissed because my attorny never turned in my tax return from last year. I called the attorny for several weeks after I received the letter stating my case was dismissed. Then, without notice, my case was reopened. Apparently, my attorney turned in the necessary paperwork. However, I still haven’t heard from him. Since I had not heard from him, I contacted another attorney’s firm that does both debt settlement and bankruptcy.

    I’m considering having my own case dismissed and either working through debt settlement or directly with the creditors. My question is, will I be able to resubmit a bankruptcy case if I’m unable to come to agreements with the creditors and/or lose my job – even though I voluntarily dismissed the chapter 13?

  30. Cory, I do not think it is wise to voluntarily dismiss a Chapter 13 case without the advice of a lawyer. Assuming your lawyer has been paid for your Ch. 13 I think you have the right to a sit down meeting with him to discuss your option. Otherwise, you may want to get a second opinion from another lawyer in your jurisdiction. Good luck to you.

  31. Hello. I filed a chapter 13 bankruptcy in 2009 and it was finally confirmed April of this year. I fell behind on my payments, then, got a letter stating that my case was up for dismissal. I then, contacted my attorney which informed me that my case could be modified, and that the modification would catch up any arrears.So, I paid the fee and got my case modified. Over the past couple of years, my payments increased, and I lost my job. However, I am doing a little bit better financially. Now…the trustee is stating that the first modification payment needs to process before my hearing which is in 3 days. I will have all of the money up until the day prior to the court date, and I am not certain that it will make it on time. If it doesn’t post to the trustees office in time…will they dismiss my case. My attorney told me to fax her documents on that day and she will fax it to the trustee, but will the court accept being that it was sent the day before the hearing, and they didn’t officially get it in through mail delivery or what not. Also, my payments started off at 900 dls a month, and since my case modifications it has increased to 1900 dollars, like wayyyyy too much! Until I am able to move or do better, do you think it would be better to get my case dismissed, and then reopened? In Texas, would you say that it sounds like I am eligible to have it refiled/reopened? Any advice that you can have would surely be appreciated. God Bless.

  32. my chapter 13 was not confirmed due to objections from the trustee..because of no proof of mortgage payments..can i file a modification to add the missing payments and refile my chapter 13.

  33. Cory,
    I am in need of some very quick advise. We filed for chapter 13 in 2009. We received notice from the trustee that we our income had increased by 20,000 from our original filing and they want to double our repayment each month, which we can not afford to do. The increase in income is from overtime that my husband has been working to try to keep us from going under. We do have an increased income from 2009 but we also have an increase in our output which leaves us still struggling each week to pay our bills and we are always paying everything a month behind. Now we are going to have to go before a judge next week and I’m scared to death. We have never missed a payment to the trustee, their total objection is that we now make more mnoey. However, after revising our monthy expenditure sheet, our attorney has come up with the figure of $100 is left of disposable cash. His advise to me was to keep my answers basically to “yes” and “no” when the judge asks a question. I feel like the judge will see that as being evassive. He has also said that it will be better if I come to court alone because he thought I did a good job answering questions in his office and we wouldn’t need my husband there. Even though, while in his office, he kept telling me that I was trying to make my answers be what I thought the judge wanted to hear and he had me in tears. I guess my question is this, should I keep my answers to yes and no? And also, would it be better for both of us to come to court, won’t the judge look at it like my husband is being disrespectful to the court by not showing up? If you could post an answer for me as soon as possible, I would be so grateful! Thank you.

  34. Hi I have a problem. I had a major back injury and fell behind on my payments, I count three months. According to the trustee, they say 5.5 payments behind as of August, and have filed to dismiss the case. I called my attorney and he wouldn’t even talk to me without another 2k. I continued to make the payments, in fact more so. As due in good faith. The letter I got yesterday says they have dismissed my case anyway but the trustee says that did not happen. Now they tell me I’m 7 months behind and I have the cashed bank checks in my hand to prove that is not true. no one will talk to me, not the attorney, trustee, nothing. I simply cannot afford to pay the attorney fees or the past payments, as I don’t make anything near what I did when I filed. I live on nothing I have nothing and they have been taking my payments, cashing them and dismissed my case anyway. I don’t know what to do, I thought about trying to convert to a 7 but my attorney wants another 2k, and says I have to go back to Arizona, I just started a new job in California and I simply cant do that Ill loose my job! I am pulling my hair out I don’t know what to do I’m so lost and I don’t know how much more stress I can physicality take. What do I do? There is simply no help for the poor.

  35. Phil, I practice in Atlanta where the rules may be different from Arizona (which I am assuming is where you filed). Here, when a lawyer files a Chapter 13, form 2016(b) – the attorney disclosure of compensation – sets out the fee that your attorney is asking the court to approve and any limitations on services. Generally, if an attorney is representing you in a case, he cannot refuse to talk to you unless you pay more money. I think that the attorney who is the attorney of record in this case owes you an explanation as to the current status of your case and what your options may be to keep your case alive and/or to convert it to Chapter 7. Here, in cases where there was a medical emergency that caused a delinquency I have been successful in asking the court for a few months of deferral (although it is best to do that before the delinquency actually happens). A Chapter 7 does require a whole new set of pleadings so I don’t think it is unreasonable for a lawyer to ask for payment. Perhaps another option would be to talk to a lawyer in California about transferring your case there, and then converting. The issues you describe are complicated and it may be that any option available to you may not be affordable, but this may be a case where a written description of your options from your current lawyer is in order. Good luck.

  36. Patti, ideally both you and your husband should be there but judges do understand when someone cannot get off work. As far as testimony, I would follow your lawyer’s advice, but don’t hesitate to raise your concerns with him. In my experience, however, when witnesses ramble on during testimony it tends to hurt their cases.

  37. today i received a letter that the finical company wanted dismiss our case my father pass awy i been in thehospital and my husband been out work i had to help with funreal expenses with my father now its becuz im behind in my chap 13 payments what can i do can i re file its been 2 years since i filed to make the payments lower in ga

  38. The trustee in Ohio filed a motion to dismiss my case on 1/20/2012. How long before the dismissal is finalized??? I am now 4 months behind. Thanks.

  39. We recently filed Ch 13 and our plan was not confirmed now there is a motion to dismiss. My attorneys office said they would make arrangments almost a month ago this was not done. Is my attorney able to stop the dismissal.? I have made all payments since January to the trustee amd mortgage company.

  40. Mary, there are almost always objections to the confirmation of Chapter 13 cases. Usually these objections can be cured by amendments to your petition and plan. You need to know when the confirmation hearing is scheduled and plan to be there unless and until you hear otherwise from your lawyer.

  41. i filed a chapter 7 trustee wanted 6 years of past doc. could not produce all so i converter to a chapter 13 and want to try to keep a house. chapter 7 trustee stated she thought there was combined debt on the property but there isnt my name is the only one on the note my husband name is on the mortgage and deed but not the note. does that would mean he is also liable for the debt. and would take our joint savings to pay the debt also chapter trustee states if i couldnt complete the chapter 13 payment plan i would have to convert back to his chapter 7. if something happens and i have to surrender the property does that mean i cant complete the balance of the plan no help from attorney cant call him for advice and dont know what to he want answes calls. i have proof that husband isnt on note. should i call trustee or is there a place where i can see what is being filed in my case. i am worried to death already had a mental breakdown and my heal is going down fast.please answer asap. thank you in advance

  42. Ann, this is a matter for your attorney. If you try to contact the trustee directly, he will tell you to call your lawyer. If your lawyer will not respond to you, you need to appear at the next scheduled hearing and when your name is called, stand up and tell the judge that you need the court’s help in reaching your lawyer. I don’t think you’ll have a problem getting your lawyer to call you thereafter.

  43. @Rema: What did u find out from ure chapter 13 payment I’m in same condition?

  44. Chris, a hearing should have been scheduled along with the motion to dismiss.

  45. I am on my second chapter 13 its been a year and 3 months so far and i am now behind a month and a half on my payments to the trustee. I set up a payment arrangment with the trustee and paid half of what i owed but am still behind. I received a letter in the mail from the trustee on friday its a letter of intent to dismiss my case. Is their anyway to stop that if i have the money now to catch up? or is it too late. I am going to call my lawyer monday and see if they can help me but I like to get some feedback as well. if worstcase scenerio am i able to file chapter 13 a third time? this is something i do not want to do but i owe the irs and they will garnish my wages. please if you can help any feedback is appreciate.

  46. Serena, negotiating with the trustee is what your lawyer is supposed to do to earn his fee. If the trustee will not agree to a deal, then your lawyer will need to argue the issue before the judge.

  47. Gene, you can petition the court for a temporary suspension in your payment obligations and/or forgiveness for missed payments. You can also ask for a hardship discharge if you have paid a certain amount and your budget will not allow for ongoing payments. Talk to your lawyer about your options.

  48. Yes, but remember that 2nd filings carry extra strings – specifically having to do with the automatic stay.

  49. I livein Utah and we did not turn in our tax refund for a chapter 13. The case is going to get dismissed. Is there any way to refile the case? Do judges usally go for a refile if you missed giving a tax return? Is there a possibility I could negotiate a repayment schedule with the trustee?

  50. Charles, you need to speak with a Utah bankruptcy lawyer about this – you are asking for legal advice.

  51. I have 11 month left in my chapter 13 and I received a letter yesterday that the trustee was dismissing my case because payments were untimely. I have paid in over $40,100 and I am current with my outside payment for my mortgage. This is been the longest process of my life but my lawyer say I can refile. Does it make more sense to talk to mortgage lender to modify the remaider of the $8,100 which would have been complete in the Chapter 13 if it wasnt dismissed for those 11 months or should I refile since that option was offered. To make matters worse I have an automatic stay and fear the next 30 days they gonna be at me but in reality I want my home..

  52. carla phillips says:

    My husband missed both 341 and confirmation hearing because he was hospitalized. We have an attorney, he informed us that once the case is dismissed, we should do a second filing within 24 hrs. You agree?

  53. Carla, your question calls for legal advice from someone who knows the practices in your jurisdiction and your case. I do not feel comfortable offering an opinion about this.

  54. Lakeeta, you have several options. You (your lawyer) may be able to negotiate a consent order on the motion to dismiss. You could ask the court for a hardship discharge. You could not contest the dismissal and refinance. You should sit down with your lawyer to discuss all of these options.

  55. Cedrick reid says:

    Need to ask a question just file for chapter 13 and can’t afford to pay it and the judge just dismissal my case. Can i try to reapply again for bankruptcy. and can they try to pick up my truck.

  56. Cedrick, once your Chapter 13 is dismissed, the automatic stay disappears and your truck is fair game for being repossessed.  Talk to your lawyer about possible refiling.

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