How long do I have to wait between Florida bankruptcy filings?
As a practicing Florida bankruptcy attorney, many times debtors ask if they are eligible to file bankruptcy for a 2nd or 3rd time. This answer depends on several factors. Which chapter did the debtor file before? Did the debtor receive a discharge? If the debtor did not receive a discharge, was the case dismissed for fraudulent intentions?
The new bankruptcy laws of 2005 changed many of the eligibiity requirements to file for both chapter 7 and chapter 13. If the debtor has FILED a chapter 7 within the past eight years and received a discharge in that case, the debtor cannot file a chapter 7 again until eight years lapse from the previous filing date. Note that the important date is the filing date in determining the length of time to become eligible.
The debtor could possibly file a chapter 13. Debtors only have to wait four years in between chapter 7 and 13 cases. If the debtor did not receive a discharge and as long as the case was not dismissed for fraudulent intentions, the debtor can refile the case as long as it is filed in good faith. The good faith standard is determined by the judge. In addition, the automatic stay is typically limited to 30 days after filing, therefore, the debtor would need to ask the court's permission to continue the stay until further notice. Usually, this request needs to be made as soon as the case is filed but can be made prior to the 30 days running out. What happens if the automatic stay is not extended? Creditors can continue to try and collect on the debt. If that means by lawsuits or by contacting the debtor, the creditor may do so within the confines of state law. Garnishments and liens could be implemented or reimplemented until the discharge order goes through in the bankruptcy.
That is why it is critical to have an attorney who is experienced and well versed in what they are doing to provide this service. The average layperson would not know to do this or how to do this. What is the public policy behind the limitation on the automatic stay (unless the debtor is successful at extending it)? The reason behind the rule is the system is not designed to keep putting creditors in a bind of when or when not a particular debtor files for bankruptcy. If the debtor were allowed to file case after case and there was no limitation on the automatic stay, creditors rights would be impaired and constantly being suspended. This suspension and backlog would carry over into the state courts. The 2005 amendments were highly influenced by credit card companies and other creditors. For
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Greg Gilbert
Keith Maynard
