Discharge Eligibility - When Can I file a new bankruptcy case?

Bankruptcy is a tool and product of federal law, and the truth of the matter is that, due to a huge variety of circumstances, it may be necessary to file more than one bankruptcy case.  The question then becomes "when can I file a new bankruptcy case?"

First of all, it is important to realize that being eligible to file for a particular form of bankruptcy relief is not the same as being eligible for bankruptcy discharge.  Eligibility for filing bankruptcy simply allows debtors to go through the process.  Discharge eligibility determines whether a discharge order will be entered at the end of the case; the discharge order is what actually eliminates the debts.

In some cases, using a Chapter 13 bankruptcy, even if a debtor is not eligible for discharge, can be a very effective way to manage debt.  The lack of discharge at the end can make the decision difficult, but it can still be the right decision for a given circumstance.

Eligibility for discharge is determined by the filing date of the previous case.

New Case	Old Case	Waiting Period	Statute
Chapter 7	Chapter 7	8 years	11 USC §727(a)(8)
Chapter 7	Chapter 13	6 years, or  none if the last case paid 70% or more on claims	11 USC §727(a)(9)
Chapter 13	Chapter 7	4 years	11 USC §1328(f)(1)
Chapter 13	Chapter 13	2 years	11 USC §1328(f)(2)

• If your previous case was a Chapter 7 case, and you want to file a new Chapter 7 case, you have to wait 8 years from the filing of the previous Chapter 7 case to be eligible for discharge in the new Chapter 7 case.
• If your previous case was a Chapter 13 case, and you want to file a new Chapter 7 case, then you have to wait 6 years from the filing date of the previous Chapter 7 case to file new the Chapter 13 case.  However, if the payments made in the previous Chapter 13 case paid more than 70% of the claims, then you can file a Chapter 7 immediately after the Chapter 13 is completed.
• If your previous case was a Chapter 13 case, and you want to file a Chapter 7 case, you must wait 4 years from the filing date of the Chapter 13 case to file the new Chapter 7 case.
• If your previous case was a Chapter 13 case, and you want to file a new Chapter 13 case, you must wait 2 years from the filing date of the previous Chapter 13 case to file the new Chapter 13 case.

11 USC 1328(f)(1) and (2):

(f) Notwithstanding subsections (a) and (b), the court shall not grant a discharge of all debts provided for in the plan or disallowed under section 502, if the debtor has received a discharge—

(1) in a case filed under chapter 7, 11, or 12 of this title during the 4-year period preceding the date of the order for relief under this chapter, or

(2) in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order.

11 USC §727(a)(8) and (9):

(8) the debtor has been granted a discharge under this section, under section 1141 of this title, or under section 14, 371, or 476 of the Bankruptcy Act, in a case commenced within 8 years before the date of the filing of the petition;

(9) the debtor has been granted a discharge under section 1228 or 1328 of this title, or under section 660 or 661 of the Bankruptcy Act, in a case commenced within six years before the date of the filing of the petition, unless payments under the plan in such case totaled at least—

(A) 100 percent of the allowed unsecured claims in such case; or

(B)

(i) 70 percent of such claims; and

(ii) the plan was proposed by the debtor in good faith, and was the debtor’s best effort;