If you call me and ask if you “qualify” to file bankruptcy, one of the first questions I’ll ask is:  “Have you ever filed for bankruptcy in the past?”  How you answer that question is the first step in determining whether you will be able to receive a discharge if you file for bankruptcy now.

If you have filed for bankruptcy in the past, we’ll need to explore that carefully.  We’ll need to determine exactly when the case was filed, which Chapter (7 or 13) it was filed under and whether or not you received a discharge.  I can usually get the exact information by looking up your old case on the Court’s website just by using your name and social security number.

Let’s assume that we look up your old case and find that you filed a Chapter 7 case on July 15, 2007 and that you received a discharge.  It’s now September, 2009, so a little more than two years have passed since you filed your previous case.  In this case, at least for the time being, you’re out of luck.  Since you received a discharge in the 2007 case, you will not be able to get a discharge of your debts in another Chapter 7 case until eight years after you filed the previous case, in other words, sometime after July 15, 2015.  However, if you now wish to file a Chapter 13 case, you only have to wait four years from the filing date of the 2007 case, or until July 15, 2011.

If your previous case was a Chapter 13, and you received a discharge, you would have to wait at least six years to file a Chapter 7 unless you either: a. paid all of the money owed to your unsecured creditors in the plan, or b. paid at least 70% thereof and your plan represented your “best efforts” and was made in good faith.  If your previous case was a Chapter 13, and you now want to file another Chapter 13, you only have to wait two years from the filing date of the previous Chapter 13 case.

What if you didn’t receive a discharge in the earlier case?  Then, no problem.  There’s no waiting period.  Give me a call.  We’ll get the paperwork going.  A previous case is only going to stop you from getting a discharge in a new case if you received a discharge in the previous case.

One last thing.  If you’re looking to file a new case for some reason other than getting your debts discharged, maybe to get the automatic stay imposed, then we should talk.  Every case is unique and a general bankruptcy law blog post is probably not the best place to discuss your unique circumstances.

Next question:  How long have you lived in Colorado?