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A.J.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4296
Experience:  Experienced consumer bankruptcy attorney.
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I filed Chapter 7 in August 2004 and then I filed a Chapter 13 in November 2007. The trus

Customer Question

I filed Chapter 7 in August 2004 and then I filed a Chapter 13 in November 2007. The trustee filed a motion to discharge my bankruptcy pursant to 1328(f)- Not enough time between backruptcy - At no time to the atty of record tell me that my backruptcy would not be discharged. My vehicle was repossessed after paying 19,676.00 (loan was 16,300.00) can I file a motion to reopen my Chapter 13, to get a relief from debt and to get my car back.
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  A.J. replied 1 year ago.

SavyLawyer :

Hello, and thank you for contacting Just Answer. My name isXXXXX am a bankruptcy law professional, and I look forward to answering your questions this evening.

SavyLawyer :

Just to make sure I understand the situation correctly, you mean that the trustee filed a motion to dismiss your chapter 13 filed in November of 2007? When was the bankruptcy dismissed (how long ago)? How long ago was the vehicle repossessed?

Customer:

The chapter 13 was closed 12/20/12, and my vehicle was repossesed today

SavyLawyer :

And presumably the vehicle was repossessed because of failure to pay the debt in the chapter 13 plan (because it was not discharged?)

SavyLawyer :

Also, I am assuming that you mean the trustee moved to "dismiss" the chapter 13, not discharge (it makes a pretty significant difference).

Customer:

No, I completed all the payment to trustee (never late). Capital One stated that they are entitle to the difference between the interest rate 23.7%? and the interest rate the plan 5.25%....Stating that the interest had been accurring while I was in backruptcy and because the backruptcy was not close they should get more money

SavyLawyer :

I understand, and thank you for the extra information. Unfortunately, they may not be wrong. The problem is that, according to 11 USC 1328(f) (which is a section of the US Bankruptcy code), where a person has received a chapter 7 discharge within 4 years of the filing of the subsequent chapter 13, the debtor cannot receive a discharge of the chapter 13 debts. What this means is that, while as the debtor you had the protection of the bankruptcy court from your creditors, the debts are not discharged and continue to exist to the extent that they were not paid during the chapter 13 plan. If you worked with a bankruptcy attorney when filing the chapter 13, this should be something that was discussed, as obviously you are experiencing the big drawbacks of not having a debt discharged in bankruptcy.

SavyLawyer :

Re-opening the bankruptcy case arguably would not help, because the problem was not something that happened during the bankruptcy, it is just that the chapter 13 was filed too soon after the chapter 7. I wish that I had better news for you, but ultimately I am not aware of a mechanism under the bankruptcy code that could fix the problem you describe. This is absolutely something that should have been raised before filing the chapter 13, particularly where there were secured debts/property involved that could be repossessed if the debt is not paid.

SavyLawyer :

One option may be to go back to your attorney and raise the issue that, because of the mistake, you have suffered damages. Should you choose to take legal action against the attorney, I would strongly encourage you to consult with a legal malpractice attorney before doing so. There is a list of attorney referral services by county in Ohio at:

SavyLawyer :

http://www.ohiolegalservices.org/programs/ohio-lawyer-referral-programs-1

SavyLawyer :

Or failure of an attorney to provide accurate information that leads to damages can be reported to the state Supreme Court through their grievance process at:

SavyLawyer :

http://www.supremecourt.ohio.gov/DisciplinarySys/odc/complaint.asp

SavyLawyer :

As I said above, unfortunately based on the information it sounds as if the trustee had the right to prevent a discharge because of how close to the chapter 7 the chapter 13 was filed (within 4 years is the rule). If there are assets that have secured debt being resolved in the bankruptcy, and no discharge occurs, the creditor can certainly argue that the debt is still owed, and failure to pay would lead to repossession.

SavyLawyer :

I really wish I had better news for you, and I appreciate the opportunity to answer your question. Let me know if you have any additional questions, or if you need clarification, I am happy to keep chatting. Otherwise, please remember to RATE my answer positively so that I can receive credit for my work.

Customer:

Thank you, XXXXX XXXXX just about to ask question about what you just typed. I appreciate your time.

SavyLawyer :

My pleasure, I do wish I had better news for you. If you do not have any further questions, please do remember to RATE my answer positively so that I can receive credit for my work.

Customer:

I will thank you

SavyLawyer :

You are most welcome, and I wish you the best of luck in all of your future endeavors.

A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4296
Experience: Experienced consumer bankruptcy attorney.
A.J. and other Bankruptcy Law Specialists are ready to help you

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