We received the following question from a user:
I recently filed a Chapter 13, unfortunately I am not sure if my attorney did what he was supposed to do. In any event, my mortgage company has started to foreclose on my property. My question is, am I able to file for another Chapter 13 despite the fact that I did one recently in order to save my home?
Here’s what Jeff Jenkins had to say:
If you file a bankruptcy and receive a discharge, the Bankruptcy Code has certain waiting periods for you to file another bankruptcy depending on what kind you filed initially and what kind you filed subsequently. Note that I said a bankruptcy where you received a discharge. If you file a Chapter 7 and get a discharge and you want to file another Chapter 7, you have to wait at least eight years between filing dates. If you filed a Chapter 7 and got a discharge and wanted to file a Chapter 13, you have to wait at least four years between filing dates. If you filed a Chapter 13 and received a discharge and want to file a Chapter 7, you have to wait at least six years between filing dates. If you file a Chapter 13 and get a discharge, you need to wait at least two years before filing another Chapter 13 in order to receive a discharge in the second Chapter 13.
Sometimes, when you file a bankruptcy and successfully complete it by receiving a discharge, there may be reason why you would need to file another bankruptcy. Sometimes, we might have a client who has a great deal of unsecured debt and is behind on their mortgage. Normally, you would think about filing a Chapter 13, but there are debt limits to a Chapter 13. The limits change from time to time, but presently, the maximum amount of unsecured debt you could have and do a Chapter 13 is a little less than $400,000 and the amount of secured debt that you can have is slightly over 1.1 million dollars.
If a client came to us and had more than the Chapter 13 threshold amount for unsecured debt and was having mortgage problems or issues with taxes that have to be paid, be they property taxes or amounts owed to the IRS or the State of New Jersey, filing a Chapter 7 and eliminating all the unsecured debts that can be eliminated and then, upon discharge in the Chapter 7, filing a Chapter 13 makes sense. When you file a Chapter 13 after filing a Chapter 7, unless you have waited the time period that I indicated above, you are not entitled to a discharge. But, in filing the Chapter 13, you are protected by the automatic stay, so creditors cannot do anything to you to collect the sums that you owe.
Accordingly, you could use the Chapter 13 to pay back mortgage arrears or property taxes that are owed or taxes that are owed to the IRS or the State, etc. The reason for this, of course, is that you are not after another discharge, you simply want the automatic stay to be in place so you are protected while you use the Chapter 13 as a vehicle to repay sums that you owe that are not dischargeable.
I have had clients who may have done a Chapter 7 and received a discharge, but during the Chapter 7 they fell behind with their mortgage payments and now they are not able to catch up. In that situation, they can certainly file a Chapter 13 without any particular waiting period, because, as I mentioned previously, they are not after a discharge of their mortgage obligation, they simply want the stay to be in place so a foreclosure cannot occur and they are protected while they repay their mortgage arrears through the Chapter 13 plan.