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If you have received a discharge in a Chapter 7 bankruptcy within the last eight years you are not eligible to receive another Chapter 7 discharge. You may be eligible to file a Chapter 13 bankruptcy and receive a discharge if four years has passed since the filing of the Chapter 7 bankruptcy case you received a discharge in. If you have received a discharge in a Chapter 7 bankruptcy case less than four years ago, you cannot receive a discharge in a Chapter 13 case. Four years must have passed since the filing of the chapter 7 bankruptcy case you received a discharge in.
Filing a chapter 13 bankruptcy to discharge debts four years after filing a chapter 7 bankruptcy case is becoming more common. There have been a number of cases that highlight the advantages of discharging unsecured debts in a chapter 7 case, then filing a chapter 13 bankruptcy to get rid of a second mortgage or equity line a credit from a home. Whether the chapter 13 case was filed in bad faith based upon the totality of the circumstances is a case by case analysis and differs from jurisdiction to jurisdiction. No all judges, trustees or courts will allow the filing of the chapter 13 case under these circumstances. Our Fremont bankruptcy lawyers will explain whether this is the right course of action.
You also may not qualify to file Chapter 7 bankruptcy if you can afford to pay back a portion of your debts in a Chapter 13 plan of reorganization. This is commonly called not passing the means test and therefore you cannot file a Chapter 7 bankruptcy case. Based upon your income and expenses you have monthly disposable income available to your unsecured creditors. This does not mean you have a lot of monthly disposable income. It could be a little as $150 per month left over to pay unsecured creditors. To be eligible to file a chapter 7 bankruptcy though you must not be able to afford to pay anything back to unsecured creditors.