Potential clients sometimes ask whether a prior bankruptcy will make it impossible for them to file a new bankruptcy petition in Georgia.
The answer depends.
First–did the filing result in a discharge or was it dismissed before discharge?
Second–was type of bankruptcy petition was filed? Chapter 7, or 13.
Third–how long has the individual lived in Georgia.
If the case was dismissed, regardless of which Chapter was filed, the debtor must wait at least 180 days to file again.
Chapter 7 discharge first, then another 7 or 13
If a debtor receives a Chapter 7 discharge, he or she may not obtain another Chapter 7 discharge for 8 years from the date of filing.
A debtor may not receive a Chapter 13 discharge if he or she obtained a Chapter 7 discharge in a case filed within four years from the date of filing.
One can still file the petition, but he or she will not be able to obtain a discharge. Why is this important? While the case is pending, the automatic stay serves to stop foreclosure, garnishment and suit. If the debtor is a 13, the debtor will catch up on mortgage arrears.
Chapter 13 discharge first, then another 7 or 13
If a debtor received a Chapter 13 discharge, he or she may not obtain another Chapter 13 discharge if he or she obtained a Chapter 13 discharge in a case filed within two years of the new petition. If the debtor obtained a Chapter 13 discharge, he or she must wait six years before seeking a Chapter 7 discharge.
Why a debtor might pursue a Chapter 7 followed by a Chapter 13–sometimes called “Chapter 20.”
Just because a debtor cannot obtain a discharge from his or her Chapter 13 creditors if a Chapter 7 discharge was obtained within four years, doesn’t mean that all hope is lost.
One could still file the Chapter 13 petition, and force creditors into accepting their “payback” as its funded from the plan. So long as proposed payback percentage isn’t found to violate the best interest of the creditors test, or show bad faith, the trustee would have good reason to confirm the proposed plan. This tactic is sometimes used to eliminate unsecured debt in a Chapter 7, and then catch up mortgage payments over the Chapter 13 plan period. Don’t try this at home my friends. You’ll want advice from a reputable bankruptcy attorney before you sail these waters. There are many limitations and important caveats any debtor must consider before thinking a Chapter 20 is possible.
Finally , a debtor who seeks to file in Georgia must have resided in the state for the greater part of 180 days (greater part means 91 days).