Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.
Question: My sister-in-law filed Chapter 7 in January 2003 and debts were discharged in April 2003. What is the earliest date that she can file for Chapter 7 again. Can she file now? She lives in San Diego, California.
Response: No, she cannot file now. She has to file in May of 2011, eight years after the previous filing. Generally, one can file for a Chapter 7 bankruptcy relief every eight years of getting a discharge from the previous Chapter 7 filing. See 11 U.S.C. Section 109(g); Section 349(a); Sections 727(a)(8), 727(a)(2), and 727(a)(11). One can file for a Chapter 13 bankruptcy relief after four years of getting a discharge from a previous Chapter 7 filing or two years after a previous Chapter 13 bankruptcy discharge. See 11 U.S.C. Section 1328(f). Thus, she can file for another bankruptcy at any time if it has been more than 8 years of her previous Chapter 7 bankruptcy discharge or more than two years after a previous Chapter 13 discharge.
Thanks. I thought the controlling dates were the date filed, not the date discharged. She filed in January 2003 and the discharge was the following April. What happens if say she files next month or early December - would it be rejected?
Response: Kindly check the citations that I provided you earlier especially 11 U.S.C. Section 727(a)(8):
"a) The court shall grant the debtor a discharge, unless--
...(8) the debtor has been granted a discharge under this section, under section 1141 of this title, or under section 14, 371, or 476 of the Bankruptcy Act, in a case commenced within 8 years before the date of the filing of the petitiongave you."
The date of the discharge controls. Thus, she cannot file any case this year as it would not have been 8 years since her previous discharge. If her filing is premature, the filing would be rejected.