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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31200
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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We are in PA. My husband and I filed a Chapter 7 bankruptcy

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We are in PA. My husband and I filed a Chapter 7 bankruptcy in 2/05 and it was discharged in 5/05. Due to an immenient foreclosure on our house, we have been forced to file a Chapter 13 which was just recently filed on 2/11/09. However, our attorney has just advised us that we may not get a discharge of our unsecured debt in this Chapter 13 case because it has not yet been 4 years since the Chapter 7 was DISCHARGED, although it HAS been four years since it was filed! He is recommending that we do not show up to the meeting of creditors scheduled for later this month. He says they will then schedule another meeting for about a month after that and if we don't show up for that one the case will be dismissed. He says by the time the case is dismissed, it should be almost May which will then BE four years since the Chapter 7 was discharged and We can file a new Chapter 13 case then, possibly only a few weeks after this one is dismissed? Is this sound advice? Should we do as he says? And WILL we then, in fact, receive the Discharge in this new Chapter 13 case as he says we will? We have about $30,000 in unsecured debt so I really want to make sure we are eligible for a discharge.

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.

Customer: replied 7 years ago.

So, you are saying he is incorrect and we should be eligible for a Discharge now because it has been four years between the FILING of each case.

What if it is short of the four years by only a few days? I think we filed the Chapter 7 on 2/12/05 and the new Chapter 13 was filed on 2/11/09. Short by just a day or so I think.

Does that matter?

These are the numbers in the bankruptcy code. If you're outside of the timelines, you can re-file. However, if you're within the timelines, even by a day, you can't file; and if you did, it was an improper filing.
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