Ch 13 & 7 Filed Simultaneously

[ctomcheck]

My situation is peculiar at best. My husband and I separated almost 7 years ago, not legally, just lived apart with minimal contact.

Three years ago one of his creditors put a lein on our home, and was scheduled for sale in the court house to satisfy the lein. Unfortunately it was one month prior to the homestead exemption increasing from $40,000 to $125,000. I chose to file a chapter 13 to keep my house.

I have paid on my bankruptcy for almost three years through payroll garnishment, paying off attorny fees and a portion of the lein. I still have about two years left on my plan, but next month my job of eight years is being outsourced to India.

My husband and I have recently reconciled, and this month he filed a chapter 7 representing himself. He was under the impression that he could add my chapter 13 into his chapter 7. He added it in, and I signed as well.

Now I find that I still have my chapter 13 in addition to the new chapter 7, and are not sure how to fix this. My attorney is not sure what to do, and not too pleased with me. If the 13 is dismissed, will the 7 not be valid? This is really a big mess.

Does anyone have any suggestions? I'm quite certain turning back the clock is not an option.

[SMinGA]

I'm not sure how or why your husband thought he could 'add' your ch. 13 to his ch. 7. His ch. 7 would discharge his debt obligations - but not yours. What do you mean by 'adding it in' and signing? What did you sign?

You could dismiss your ch. 13, and file ch. 7. Or convert it to a ch. 7. Nothing in another person's case can get rid of your case.

[StartingOver08]

Did you file your Ch 13 pro se? Or with an attorney?

Did you and your husband both file a Ch 7 with the attorney?

Did you meet with the attorney when you filed the Ch 7?
Is the attorney for the Ch 7 representing your husband or you or both?

[HHM]

Suggestion: go get an attorney NOW and get this MESS sorted out. You have no idea HOW BIG A HASSLE you (your husband) just created.

I am not even sure where to begin, I have honestly never even heard of this happening. To be in an active chapter 13 and to file as a debtor in a chapter 7. Since this was done pro se, the court may have leniency and simply allow you to remove your name from the chapter 7, or better, allow you to dismiss the 7 and go get legal counsel to get you through this.

[ctomcheck]

I'm not sure how or why your husband thought he could 'add' your ch. 13 to his ch. 7. His ch. 7 would discharge his debt obligations - but not yours. What do you mean by 'adding it in' and signing? What did you sign?

You could dismiss your ch. 13, and file ch. 7. Or convert it to a ch. 7. Nothing in another person's case can get rid of your case.

He added my trustee's name to the list of creditors, and he listed me as a co-debtor. He was doing his best to do this, but it's quite obvious we had no idea what we were doing. I would like to dismiss the 13 and then continue on as a co-debtor on his 7, but I don't know if there is a waiting period after my 13 has been dismissed.

We have been trying to take advantage of attorneys offers for a free consultation, but they only have to hear a little and rightfully determine it too messy for a 20 minute consultation.

I know we need an attorney, but we have completely run out of financial resourses. I make a very modest living, but the garnished payments to the trustee seriously cuts into it, and it's been years since my husband has had a full time job. Add in a teenaged daughter... I feel like I'm on the edge of it all falling apart, and it all coming together.

[ctomcheck]

Did you file your Ch 13 pro se? Or with an attorney?

Did you and your husband both file a Ch 7 with the attorney?

Did you meet with the attorney when you filed the Ch 7?
Is the attorney for the Ch 7 representing your husband or you or both?

I had an attorney with my 13, but the 7 is obviously pro se. My attorney is rightfully a little more than reluctant to help me get out of this mess I have foolishly walked into.

[debtinohio]

I had an attorney with my 13, but the 7 is obviously pro se. My attorney is rightfully a little more than reluctant to help me get out of this mess I have foolishly walked into.

Husband should file a motion to dismiss the 7.

[SMinGA]

From your original post, you indicated you did use an atty to file your ch. 13. If you want it dismissed, you need to contact your atty and request that it be dismissed. Your atty will file a motion. If its being dismissed purely voluntarily, not in response to an adversary action, then there may not be a limitation on your ability to refile.

Your husband's petition may be too full of errors to get thru as it is. HHM may be right, in that he may get a sympathetic trustee who dismisses his case. If not I doubt there is any way to grant you the benefit of his automatic stay/discharge. You would not have been eligible to file ch. 7 at that time since you were in an active 13.

If/when you dismiss your 13, the deductions will stop. But your creditors will no longer be bound by the automatic stay. If you're behind on your home or car - that could be a problem. Perhaps you'll have enough time however to save up $ (once you're no longer paying the 13) and be able to hire an attorney?

Since he filed 'this month' I am guessing your husband has not yet had his 341.

[ctomcheck]

From your original post, you indicated you did use an atty to file your ch. 13. If you want it dismissed, you need to contact your atty and request that it be dismissed. Your atty will file a motion. If its being dismissed purely voluntarily, not in response to an adversary action, then there may not be a limitation on your ability to refile.

Your husband's petition may be too full of errors to get thru as it is. HHM may be right, in that he may get a sympathetic trustee who dismisses his case. If not I doubt there is any way to grant you the benefit of his automatic stay/discharge. You would not have been eligible to file ch. 7 at that time since you were in an active 13.

If/when you dismiss your 13, the deductions will stop. But your creditors will no longer be bound by the automatic stay. If you're behind on your home or car - that could be a problem. Perhaps you'll have enough time however to save up $ (once you're no longer paying the 13) and be able to hire an attorney?

Since he filed 'this month' I am guessing your husband has not yet had his 341.

The only secured debt we have is the house, and it is current, however, there is no stay on the house. No, he has not had his 341.

[SMinGA]

Dismissing your 13 would also mean any unsecured creditors can pursue collection activity. Though if you filed a ch. 7 in the near future, that would stop it again.

Being current on your house is a good thing however.

[NoMoreCards]

The only secured debt we have is the house, and it is current, however, there is no stay on the house. No, he has not had his 341.

I am NOT real familiar with CH 13 filings, however how can you have both a 7 & 13 filed, yet there is no stay on the house? Both chapters of BK have automatic stays, at least that was my understanding.

[SMinGA]

NoMoreCards, she may not have realized what was meant by 'stay'. The automatic stay would be in effect, unless a creditor motioned for it to be lifted. And since she's current on the house, there is no reason for her mortgage co to have filed to lift the stay.

My guess is ctomcheck's ch. 7 'filing' is not valid since she was not eligible for 7 due to being in an active 13. It might even make her husband's 7 invalid, but that is a question for an attorney or up to the TT to decide.

[ctomcheck]

NoMoreCards, she may not have realized what was meant by 'stay'. The automatic stay would be in effect, unless a creditor motioned for it to be lifted. And since she's current on the house, there is no reason for her mortgage co to have filed to lift the stay.

My guess is ctomcheck's ch. 7 'filing' is not valid since she was not eligible for 7 due to being in an active 13. It might even make her husband's 7 invalid, but that is a question for an attorney or up to the TT to decide.

There was a reason for the stay to be lifted. I had been one month behind in my mortgage payment for almost one year. In January my mortgage company claimed I was behind three months. My attorney produced copies of canceled checks to the mortgage company, and payment arrangements were made for the extra payment to be paid off, which I did.

Unfortunately, my understanding is that somehow the papers noting the agreement were never signed by the judge and filed. Since then the mortgage company has again claimed that I am behind in payments, and again cancelled checks have been produced. Until the mortgage payment issue, what they refer to as "very complicated bookkeeping", has been resolved the stay will remain lifted.