Conversion to a 7 rules.

[optimistic1]

Ok so I have a question for the experts, or for people that have a actually had this happen to them. Either my attorney is ill informed, or he is actually right.

Filed a Ch.7 in Aug. 2004, thus barring me from filing another Ch.7 for 8 years.

However, I will be filing a Ch.13 this year.

Lets say that it is a 5 year plan, and after three years on the plan, I now qualify for a Ch.7 again, because 8 years rolls by.


The attorney however, said that the time starts over again somehow, that I wouldnt qualify for a 7 until I am not on the 13 anymore.

I dont see where he is getting this info from, it wouldnt be the first time that an attorney is just wrong.

[catleg]

What are you protecting with that 13?

[optimistic1]

Nothing, I am protecting myself from being sued by unsecured creditors, and I cant file a 7 due to the rules.

[HHM]

Your attorney is incorrect, the timeframe does not relate back to when you file a chapter 13. The conversion date is the operative date, so if you convert after 8 years from the date of your previous discharge, you can receive a chapter 7 discharge. (this is a common error many attorneys make).

[optimistic1]

Well your last phrase makes me feel better, I was about to fire him. I just looked it up in my Ch.13 Nolo book, and you are right, and the attorney is wrong. I noticed this alot with attorneys, they are nowhere near as educated on the topic as many in here, especially the moderators, and some others. So, if I need to convert it, I will either convince my attorney that he is wrong, or I will do it myself, or hire another attorney to file the motion for me. No worries.

[justbroke]

This is probably why I'm not a lawyer. Two people can read a sentence and come up with at least 3 interpretations. I agree with HHM's assessment.

The law doesn't read 'from the start of a pending or current case filed...". it (11 USC 727) reads, "in a case commenced within 8 years before the date of the filing of the petition".

(I actually do see, read, where one could conclude that the case was commenced within 8 years... yada yada yada.)

[catleg]

Why bother with chapter 13 if there isn't anything for them to take from you?
You'd be wasting money on payments and legal fees just to make the phone stop ringing.

[sassiebaz]

Problem is in mine and optimistics state, wages can be garnished up to 50%. That is our reason for wanting to file soon! But, optimistic....even another attorney told me that we cannot convert to a 7, we'd have to dismiss the 13 and then re-file for a ch7. He said if you don't qualify NOW to file a 7 then you cannot "convert" My point is what's the difference...it's just the terminology! Anyways, I'd really like to get rock solid about the info. Why is that so much to ask???

[HHM]

You have an absolute right to convert you case AT ANYTIME. Now, the issue is whether you qualify at the time you want to convert. Note, to convert in the future, something must have "changed". And that change must appear to be something longer term such that it becomes unrealistic to complete the chapter 13 plan.

The mere fact of losing your job won't automatically qualify you to convert to a 7. Now, if you have a period of 3 months of unemployment, have been looking for a job, but have no offers, THEN you can covert.

[sassiebaz]

HHM, that makes sense. But, can you dismiss a current 13 and then turn around and file a 7????

[justbroke]

HHM, that makes sense. But, can you dismiss a current 13 and then turn around and file a 7????

Notice the use of teh word convert. This text of the law reads convert.

However, the only bar from filing a new Chapter 7 are those who received a discharge in a prior bankruptcy filing, so I would suspect that you could just file a new case. Conversion is cheaper, though, by $274.00. (Conversion costs $25.00) Of course I'm talking about the filing fee, and not any additonal legal fees.

[optimistic1]

Why bother with chapter 13 if there isn't anything for them to take from you?
You'd be wasting money on payments and legal fees just to make the phone stop ringing.

I personally dont think the phone would just keep ringing for three years, at some point they would sue me. And then both my check and my wifes check would be garnished at 25% each. This equates to approximately $800 a month. However my plan payment would be $350, with my car loan crammed down into it.

So lets see here, $800 versus $350, can you still not yet see why I wish to file?

[optimistic1]

Problem is in mine and optimistics state, wages can be garnished up to 50%.?

It is only 25% garnishment per person.

[Tbornetun]

[QUOTE=optimistic1;241336] However my plan payment would be $350, with my car loan crammed down into it.
QUOTE]

If you convert, I beleive you lose your "cramdown". Anyone else know anything about this?

[optimistic1]

That sounds plausible, but even if I did, I would still be paying the same amount monthly if I somehow reaffirmed.

Besides, if I was on a 5 year plan, by year 3 I would have the car paid off completely and have the title already, and by year 3 I would somehow be able to qualify for a conversion. What would they do then? I already have the title