Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question.
If a bankruptcy case is refiled after there has been one dismissal in the previous 12 months, then the automatic stay will only last for 30 days. If a bankruptcy case is refiled after there has been two or more dismissals in the previous 12 months, then no automatic stay will go into effect. See 11 USC § 362 (c) (3) (A) and (c) (4) (A).
In these refiling situations, it is necessary for the debtor to file a motion with the court to either extend or create an automatic stay in order to receive protection from creditors. If the debtor is unable to convince the court that the refiling is made in good faith, then the extension or creation of an automatic stay may not be granted.
So if I filed chapter 13 on Jan 12, 2012 and it was dismissed which is over a year ago. Am I still on good for 30 days without permission to extend?
I am wondering if the filing for chapter 7 which went through coutns against me for an automatic stay. In other words does the court count by the number of bankruptcies collectively or do they count per chapter.... In other words, since I filed chapter 13 a little over a year ago, I am good for automatic stay even though I had an interim chapter 7?
You should have 30 days automatic stay protection, and you can file a motion with the court to extend the automatic stay by proving good cause to do so.
The Chapter 7 would could against you in terms of the stay.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).