So if a bankruptcy case is filed too soon, even though it will not be dismissed, a discharge may not take place. Why would anyone do this? Well there are several reasons to name a few.
If enough time has not taken place, but a debtor wants to eliminate their debt in a subsequent chapter 7 and has sufficient assets to do so, filing another case may be a good idea. Suppose a debtor has a messy asset(lawsuit, insurance claim, etc) but wants to use that to pay creditors. By filing another chapter 7, the trustee can liquidate that asset to pay the debts. Although the debtor may not be getting top value for the asset since the trustee only cares about getting enough money to pay the creditors, it may be worth the peace of mind for the debtor in not dealing with the asset and having the trustee in charge of converting it to dollars.
Or, maybe a debtor recently filed a chapter 7 and has remaining non-dischargeable student loans or taxes. The debtor could then file a subsequent chapter 13 and be protected for the next 5 years without any worries of lawsuits, levies, or wage garnishments, even though at the end of 5 years no discharge is entered. Then, maybe at that date, the debtor might also be eligible to eliminate the debt in another chapter 7 or 13.
In a nutshell, the time frames between discharge eligibility are as follows:
8 years between 7s. -727(a)(8)
2 years between 13s. -1328(f)(2)
4 years between a 7 and 13 -1328(f)(1)
6 years between a 13 and 7(if under 70% plan). -727(a)(9)
The time is counted from filing to filing — not from first discharge to second filing.
So don’t immediately give up on bankruptcy relief just because not enough time has passed. With a little pre-bankruptcy planing and creative filing techniques, you and your attorney can probably get you the relief you need!
Written by Michael G. Doan
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