An individual may file multiple bankruptcies for many reasons. When a discharge of debt is needed, the federal law limits time between discharges. After you receive a discharge in a previous Chapter 7 bankruptcy case, you must wait 8 years before you can receive another Chapter 7 discharge; and 6 years to receive a Chapter 13 discharge.  If you received a discharge in a previous Chapter 13 bankruptcy case, you must wait 4 years before you can receive a Chapter 7 discharge; and 2 years to receive another Chapter 13 discharge. 

The above time periods are measured from the date the previous case was filed.  For instance, if you filed a Chapter 7 bankruptcy on June 1, 2005, then on June 1, 2013 you will be eligible to file a Chapter 7 bankruptcy case and receive a discharge. However, on June 1, 2011 you are eligible to file a Chapter 13 bankruptcy and receive a discharge. 

In some cases a discharge is not needed. A debtor can file a Chapter 13 bankruptcy and repay debts without receiving a discharge. In this situation there is no legal limitation between bankruptcy cases. This strategy is especially useful when faced with non-dischargeable debts that must be fully paid. The obligation is paid over time under the supervision and protection of the bankruptcy court.  In some rare cases of abuse a bankruptcy court will deny the debtor relief. This may occur when a debtor has shown a history of repeated bankruptcy filings that have been dismissed. 

If you have received a discharge and need the protection of the bankruptcy laws for a second time, discuss your situation with an experienced bankruptcy attorney. The bankruptcy laws are meant to help the honest, but unfortunate debtor and can help you straighten out a difficult financial dilemma.

After receiving your free credit reports, check each report for errors. First, any debt discharged by your bankruptcy should be listed as “Discharged in Bankruptcy” with a “Zero Balance.” Second, there should not be any negative activity reported after the date that you filed your bankruptcy case. This includes any new collection agency report after your filing date. Third, any debt that was reaffirmed should not be listed as “Discharged in Bankruptcy,” and should list your on-time payments. Finally, in some cases inaccurate information will be reported. For instance, a car voluntarily surrendered back to a creditor during a bankruptcy is not a “repossessed vehicle” and should not be reported as such. 

Correcting any errors on your credit report is simple and easy. Each reporting agency has procedures from contesting erroneous information, either by mail or on-line. Once the credit agency has updated its records, it must issue you a free corrected report. Review this new report for errors; do not assume that the report has been correctly amended. You may need to correspond with the agency several times and supply documentation regarding your bankruptcy case. It is your responsibility to ensure that your credit report is accurate. Neither the bankruptcy court, nor your attorney, nor your creditors are responsible for sending the credit reporting agencies information regarding your bankruptcy case. 

Updating and correcting your credit reports is the first step on the road to rebuilding your credit after bankruptcy. Fortunately, this step is free and takes very little effort. Be sure to correct your credit reports and then closely monitor your credit regularly for the first two years after your bankruptcy discharge. With timely payments and by carefully protecting your credit file, your credit score will increase quickly.

A bank objecting to the discharge of a credit card debt on the basis of fraud will file an adversary case against the debtor. The fraud claim is usually one of two types: (1) fraud in obtaining the credit; or (2) fraud in incurring the credit. 

A bank may claim that the debtor committed fraud in obtaining the credit card.  If the creditor can prove that the card was obtained under false pretenses (i.e. that the application was false), the credit card debt may be declared non-dischargeable because of the fraud. False pretenses may include many things, but is usually lying about financial stability or income. 

The bank may claim that a charge was made when the debtor was unable to repay, and had no intention to repay the debt. Because proving this may be difficult for the creditor, the bankruptcy law presumes that a charge is fraudulent if luxury goods are purchased, or a cash advance is taken, shortly before the bankruptcy case is filed. It is then up to the debtor to prove that the charge is not fraudulent or the charge is not included in the bankruptcy discharge. 

Banks routinely check the bankruptcy debtor’s account for signs of fraud. Some red flag actions include: 

• Filing bankruptcy on a new card;
• Taking a cash advance prior to filing;
• Charges for travel or vacation;
• A debt transfer from one card to another;
• Credit charges while unemployed; and
• Charges made after consulting a bankruptcy attorney. 

The more time between the credit card activity and the bankruptcy filing, the less likely the charge will cause a discharge dispute.  The best advice is: if you are considering bankruptcy, stop using your credit cards.  Consult with your bankruptcy attorney regarding the best way to discharge your credit card debt.

The rules for discharging an income tax debt can be complicated, and the debtor’s ability to discharge all or a portion of the tax debt or penalties may depend on whether the case is filed under Chapter 7 or Chapter 13 of the Bankruptcy Code.  An income tax debt arises from a tax return for a particular tax year.  In general, an income tax debt for a particular tax year may be discharged if the following criteria are met: 

1. The due date for filing the tax return was at least three years prior to the bankruptcy filing date. This due date includes any extensions. 
2. The tax return was filed at least two years prior to the bankruptcy filing. This date is the time the return was actually filed with the IRS.  
3. A tax assessment was made at least 240 days prior to the bankruptcy filing. The tax assessment is usually measured from the IRS proposed assessment sent to the taxpayer. 
4. The tax return was not fraudulent, and the taxpayer has not attempted to evade the tax laws. Dishonest taxpayers do not receive the benefits of the bankruptcy laws. 

Taxes that do not meet the above criteria are not included in the bankruptcy discharge. This includes income tax debts from unfilled tax returns. Even if the IRS assessed a tax many years ago, if the taxpayer failed to file a return, the debt is not dischargeable. 

When an income tax debt is discharged in bankruptcy, any tax penalty is also discharged. However, in some cases the tax penalty may be discharged, even when the tax debt itself is not discharged. For instance, in a Chapter 7 case tax penalties are discharged if the penalty is associated with a tax debt more than three years old. In a Chapter 13 case all unsecured tax penalties are dischargeable, and receive the same treatment as all other unsecured debts during the term of the bankruptcy repayment plan. If the debtor is repaying a tax debt through the Chapter 13 bankruptcy case, no new tax penalties will accrue. 

The federal bankruptcy laws contain specific provisions for discharging income tax debt. Bankruptcy can provide you with time to repay your obligation, without the threat of IRS seizure or garnishment; or, in some circumstances, can permanently discharge your tax debt. Your bankruptcy attorney can explain your legal rights and the available opportunities to free yourself from your income tax burden.

“Undue hardship” seems like an easy hurdle to clear.  If you are broke, the choice may be buying food or paying on the student loan, right?  Unfortunately, courts have taken a very narrow and hard-line approach in construing the undue hardship standard.  Consequently, it is very difficult to discharge student loans in bankruptcy.  A good example of this is found in the recent case of Wallace v. Educational Credit Management Corp., 2010 WL 5764771 (Bky.S.D. Ohio Dec. 1, 2010). 

The bankruptcy debtor in Wallace graduated with bachelor’s degree in sociology and over $30,000 in student loan debt. Wallace was able to work one year making a little over $12,000 before being forced to quit working due to complications from diabetes. Over the next few years he lost one eye, and had a kidney and pancreas removed.  By 2008, he was legally blind and receiving $811 each month in social security disability.  His monthly expenses were determined to be $790. 

Wallace and his attorney filed an adversary case in the bankruptcy court seeking to discharge the student loan debt under the undue hardship standard.  The Bankruptcy Court for the Southern District of Ohio looked at three factors (known as the Brunner test) in reaching its decision: 

1. whether Wallace could maintain a “minimal” standard of living if forced to repay the student loan debt;
2. whether additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the student loan repayment period; and
3. whether Wallace made a good faith effort to repay the student loans. 

The Ohio Bankruptcy Court decided that while the first prong of the Brunner test was met, Wallace “failed to demonstrate that his state of affairs is likely to persist for a significant portion of the repayment period of the Loan.” The Bankruptcy Court ordered Wallace to pay $20 per month, but stayed final judgment on the issue until 2012 and would review the case.  In a bit of ironic prose, the court stated that “It remains to be seen into which group Wallace will land, whether he will find work or remain unemployed.”  

As you can see from the Wallace case, student loans are very difficult to discharge.  If you believe you can meet the undue hardship test, discuss your with an experienced bankruptcy attorney.  While not impossible, discharging student loans is a very high bar to clear.

Modern bankruptcy law in the United States is more forgiving and promises the individual creditor a fresh start.  The United States Bankruptcy Code is enacted by Congress via authority granted by Article I, Section 8 of the United States Constitution.  United States bankruptcy laws have evolved to protect the honest, but unfortunate debtor and provide a discharge of overwhelming debts.  Debtor’s prisons were abolished in the United States. 

The cornerstone of the bankruptcy fresh start is the bankruptcy discharge, a permanent court injunction that prohibits creditor collection against the debtor.  The bankruptcy discharge is available to individual debtors and is generally ordered at the end of the bankruptcy case.  A discharge is not available to a non-individual, like a businesses or corporation.  The discharge order forbids creditors from contacting the debtor to collect on a debt, or taking legal action against the debtor personally.  The bankruptcy discharge is very broad and is enforced through a contempt action with the bankruptcy court. 

Certain debts are not affected by the bankruptcy discharge including child support obligations, debts obtained by fraud, criminal fines or restitution, most student loans, and certain taxes.  While these debts are non-dischargeable for policy reasons, other common debts like medical bills and credit card debts are discharged by the bankruptcy.  The Bankruptcy Code offers certain protections to the debtor to repay non-dischargeable debts during a bankruptcy case. 

If you are struggling with debts and need a fresh start, discuss your options with an experienced bankruptcy attorney.  The modern bankruptcy law offers many legal options for paying or discharging personal debt.  Learn how a bankruptcy discharge can start you on a path to a fresh financial start.

Once you decide to file bankruptcy, you will discover that the procedure is very simple and straight-forward.  The bankruptcy process essentially breaks down to an accounting to determine whether you have sufficient assets or income to pay something to creditors.  If you do, then your creditors will receive some payment and the rest of your debts are discharged.  If you don’t, then creditors receive nothing and are discharged.  There are a few narrow exceptions to discharging debts, like student loans, child support, and recent taxes, but most debts are dischargeable. 

Nearly all those who file bankruptcy are able to keep all of their property.  The United States Trustee Program reports that nationwide only around four percent of all Chapter 7 bankruptcy cases have assets that are turned over to the bankruptcy trustee.  That means one case in twenty-five may have non-exempt property that is taken and sold to pay creditors.  An experienced bankruptcy attorney is able to identify assets that may be at-risk and will advise the client regarding options for protecting the asset from turn-over. 

Many people are unaware that the bankruptcy process is quite private.  The press reports on celebrities who file bankruptcy, but unless you are famous or infamous, you will likely not receive any attention.  Newspapers no longer publish the names of individuals who file bankruptcy.  Notice of your bankruptcy is sent to your creditors, but not to your friends, family, bank, or your employer (unless you owe money to them). 

The typical debtor never sees the bankruptcy judge, and there is generally one meeting with a bankruptcy trustee.  This meeting will take place with other debtors and, while it is open to the public, it is rare that anyone other than debtors, attorneys, and an occasional creditor attends this meeting.  Most clients report being very nervous about meeting with the bankruptcy trustee, and are surprised at how fast and easy the meeting actually is. 

Many clients confess that bankruptcy was the best decision to discharge overwhelming debt.  Once the burden of debt has been lifted, you feel better and your financial condition can begin to improve.  If you are struggling with debt, speak to an experienced bankruptcy attorney and learn how the federal bankruptcy law can provide you with a fresh start.

Most debtors are confused as to when the bankruptcy case is finished.  There are actually two different events that happen near the end of a Chapter 7 case: the discharge and the closing of the case.  The discharge is a permanent injunction entered by the bankruptcy judge prohibiting certain creditors from collecting from the debtor personally.  The discharge injunction is ordered near the end of the case, but cannot be entered until after the last day for creditors to file objections has passed.  That day is set by the Bankruptcy Code as 60 days after the date first scheduled for your 341 Meeting of Creditors.  The date is also listed on the 341 meeting notice. 

While the bankruptcy court may enter the discharge order before the case is closed, your case is not finished until a final order is issued closing the case.  When there are no assets to distribute, the bankruptcy court will often enter the discharge order and the order closing the case on the same day.  If there are assets to distribute or objections to the discharge of a debt, your case may remain open for several months.  Statistically, only one in twenty five Chapter 7 cases have assets to distribute to creditors.  The typical Chapter 7 case is discharged and closed soon after the objection deadline passes. 

Your Chapter 7 case will likely take between three to four months from start to finish.  One of the main advantages in hiring an experienced bankruptcy attorney is the benefit of the attorney’s efficient processes that will take your case from start to finish without complication. Your attorney can identify and correct potential problems before you file your case, and avoid any delays getting you the relief you need.  If you are considering bankruptcy, consult with an experienced bankruptcy attorney and discover how the federal bankruptcy laws can help you.

First, immediately after your case closes (usually soon after you receive your discharge), obtain your credit reports from the three largest credit bureaus: Experian, Equifax, and TransUnion.  You can obtain an absolutely free credit report from each of these companies by visiting this site: https://www.annualcreditreport.com 

Review your credit reports for errors.  All debts discharged by your bankruptcy should be listed as “Discharged in Bankruptcy” with a “Zero Balance.”  There should be no activity reported on these accounts after the date you file bankruptcy.  Each credit bureau is required to provide assistance in correcting errors on your credit report.  Once the credit bureau has corrected the erroneous information it will send you an updated report. 

Second, obtain new credit.  Many debtors are reluctant to take this step either out of fear of rejection or fear of abusing available credit.  The only way to improve your credit score is to demonstrate a responsible use of credit over time.  Approximately 1/3 of your score is based on your payment history; 1/3 is your available credit; and 1/3 is various items like types of credit and length of credit history.  Obtaining new credit is necessary to improve your credit score after a bankruptcy.  

Many debtors are amazed at receiving credit card offers in the mail just after they receive the bankruptcy discharge order.  Some of these offers carry very high interest and fees, so select your new credit card account wisely.  If you do not already have an installment loan, like a car loan or home loan, you should consider obtaining a secured loan from your local bank.  This loan is secured by a deposit held by the lender.  For instance, you deposit $500 in a savings account or CD, and the bank loans you $500.  If you decide to arrange a secured loan, make sure that the bank will report your monthly payments to the credit bureaus. 

Third, make your payments on time!  Bankruptcy is a serious negative mark on your credit report, but it stops all other negative reports.  Lenders place considerable weight on how you have handled your credit accounts since your bankruptcy.  One 30 day late entry on your credit report can significantly harm your credit score when coupled with a bankruptcy.  Safeguard your credit by ensuring your bills are paid on time. 

Rebuilding your credit is not difficult, but it takes time and vigilance.  Fixing errors on your credit report, obtaining new credit, and dealing with your creditors in a responsible manner are the three steps on the path to improving your credit score.  Make the most of your fresh start by taking these steps to improve your credit score.

An individual can ordinarily file a bankruptcy case at anytime, however there may be restrictions on the relief that is available.  The most common restriction is the eligibility to receive a bankruptcy discharge.  To receive a Chapter 7 discharge, you must file your case eight (8) years after your previous Chapter 7 case was filed, or six (6) years after your Chapter 13 case was filed.  To receive a Chapter 13 discharge, you must file your case four (4) years after your previous Chapter 7 case was filed, or two (2) years after your Chapter 13 case was filed. 

In some cases, receiving a bankruptcy discharge may not be important to the debtor.  For instance, if a debtor has a non-dischargeable debt like child support or taxes that must be paid, bankruptcy can offer an organized process for payment while the debtor retains some control. 

Another less common restriction concerns the automatic stay.  If your bankruptcy case is dismissed within the past year, the bankruptcy court assumes that your second bankruptcy is filed in bad faith.  The automatic stay will only apply for 30 days after your second filing.  A hearing is required to extend the automatic stay and you must convince the court that you have filed in “good faith.”  If you file two or more cases within the past years, you must petition the bankruptcy court for a stay – it is not automatic for any period of time. 

Finally, you are not eligible to file at all if your case was dismissed by the bankruptcy court within 180 days due to a willful failure to obey an order of the bankruptcy court, or if your case was voluntarily dismissed after a creditor sought to lift the automatic stay to enforce a lien against your property. 

Filing a second bankruptcy is not uncommon.  Congress has established a few additional rules to deter abusive serial filers, but bankruptcy protection is available for the honest yet unfortunate debtor.  If you need assistance with filing a second bankruptcy case, contact an experienced bankruptcy attorney and get the relief you need.