chpt 13 dismissed w/o prejudice

[chickenlvr]

Hello, I am hoping someone can help... yesterday our chapter 13 was dismissed - w.o prejudice - we have been in our plan for almost 3 years (as of may 2010) have paid about 65,000$ into our 142k plan. Husband lost job back in August needless to say fell behind in payments, we filed for a modification however the judge who was most graceful yesterday was concerned w.our Tight budget ( were were paying 2100.00 a month) and on the modification it would go up to 3500.00 a month... the judge had let us decide and said that he could and would grant to mod... however he felt that he would see us again soon if he did, he then said he could also dismiss w.o prejudice... and the lawyer said we could refile. Our house is in limbo due to property tax and mortgage back payments - so I would like to refile ASAP ... My question is, is there a time frame we have to wait to refile? As when we called the office this morning they are asking us to call back mid January so that can start @ that time the refiling..


Thanks for all replies

Lana in Texas

[justbroke]

My question is, is there a time frame we have to wait to refile? As when we called the office this morning they are asking us to call back mid January so that can start @ that time the refiling..

Since the case was filed without prejudice, you could have filed right after the Judge signed the order! In other words, you can file whenever you like!

[AngelinaCatHub]

I've been looking but I believe if you were dismissed without prejudice, you can immediately file for 7 and wipe out that debt. Get yourself a new start. I would diligently look at that solution. I believe the Judge gave you a leave in good faith but he just can't recommend you to file anything else. I would think that an ethical violation, but from what you post, he is leading you in that direction. 'Hub

[AngelinaCatHub]

Geesh, I can never beat 'justbroke'. However, he always has better info with case law backing. Our third "good lawyer" (unofficially of course). 'Hub

[justbroke]

I will add though, 'Hub, that the case needs to actually be "closed" before you start the new one. Administratively, this may not be as "immediate" as my post suggested.

[chickenlvr]

thank you both for your replies, I guess I just need to call the lawyer back again , as I am not sure why they would ask us to call back mid January for the refile, as far as doing a chpter 7 I thought we couldn't do that if our debt was secured debt? We have NO credit cards on our Bankruptcy... originally it was our car which was paid in the one that was dismissed... our mortgage/back mortgage/back property tax and a second seller loan on the house. The Judge was extremely nice when husband lost job, he got another one about a month later, but then another setback our 17 yr old son was hospitalized w/spinal meningitis... I do not know why he offered that information, the Trustee was even agreeable and show compassion towards our case and basically gave us a few moments to think about what we wanted to do as far as go ahead w.the mod or dismiss/ w/o prej - so that we could refile - there were several other cases before ours... where he was not so generous for one reason or another.

[chickenlvr]

ahhh ok maybe maybe that is the reason for the delay to refile... thanks again! I have been so unraveled about our home (like anyone else) and just loved the security the chpt 13 gave us in this ordeal of getting back on our feet.

thanks!

[rrockinggramma]

you can refile today with a dismissal without prejudice. You might want to hurry with your house in limbo

[cosmicmama]

So am I interpreting this correctly? If I don't make my plan payments, I will be discharged without prejudice and can refile immediately?
Sounds like an easier way to fire my lawyer than asking for a dismissal, then having to wait 180 days to file with a new attorney.

[justbroke]

So am I interpreting this correctly? If I don't make my plan payments, I will be discharged without prejudice and can refile immediately?

Usually, if your (Chapter 13) case is dismissed for failure to maintain plan payments, it will be dismissed with prejudice. This is specifically so you can't immediately refile and get the stay reimposed. You see, people would just miss payments, wait for a dismissal and then refile. This cuts down on the abuse of the automatic stay.

Sounds like an easier way to fire my lawyer than asking for a dismissal, then having to wait 180 days to file with a new attorney.

Getting a Chapter 13 case dismissed without prejudice is usually not as simple as missing payments. From my interactions with and seeing the Trustee in action, this cases dismissed without prejudice are usually done for cases where the Debtor's Attorney and the Trustee's office agree so that they can refile under Chapter 7... not to file another Chapter 13.

But that's just my experience, and it will vary by District. My (Florida) District does have a rule that failure to make plan payments will result in a dismissal with prejudice.

[rrockinggramma]

with prejudice happens when the court believes you are filing to game the system. Any time you miss payments you are automaticaly dismissed without prejudice and yes it would be a way to fire your attorney and start over.