Can we re-file after dismissal?

[slydog1967]

We filed a 7 and the trustee is moving to dismiss or convert to a 13, my lawyer thinks that we should not convert to a 13 and let the case be dismissed by the trustee. I told my lawyer that I had read that if your case is dismissed you have to wait 180 days to file again. He said that only pertains to when the filer asks for the case to be dismissed. The reason for dismissal is a mistake was made and we failed the means test when this was figured out.
If we file again now some income has dropped off and we would pass the means test.

[HHM]

Umm, why not just oppose the motion to dismiss and fix the error.

Or is there something else?

You can refile BEFORE 180 days, but the automatic stay will only last for 30 days from the date you refile unless you demonstrate to the court that the refile is in good faith.

[slydog1967]

Umm, why not just oppose the motion to dismiss and fix the error.

Or is there something else?

You can refile BEFORE 180 days, but the automatic stay will only last for 30 days from the date you refile unless you demonstrate to the court that the refile is in good faith.

With the error we are over on the means test and have to file a 13, but if we file now there will be an income bonus that drops off my wages which puts us under the means test even when the error is corrected.

[Ming_Ming_Duck]

My husband attempted to file in spring 2006, and the trustee protested and forced him to move to a 13, when he wanted a 7. In the meantime, I got pregnant and with over $40,000 in credit card debt alone, we decided it was best if we filed joint. So, he had the case dismissed.

We filed again, in November. So far, they haven't made an issue of it since it was my husband who chose to have the case dismissed (and not the trustee, or whatever), but our PACER file is marked "repeat filer". And the trustee asked about it at the 341, but so far, it hasn't been an issue.

[FreshLikeADaisy]

Slydog, double check this with your atty, but I seem to recall that if you petition for voluntary dismissal, you can refile immediately, but if you do nothing and wait for the trustee to dismiss, you have to wait the 180 days. If you really really need to redo your bk, it may be worth it for you to do a petition for voluntary dismissal. There's no real paperwork outside of the petition itself (one page, maybe 2?) which your attorney prepares and then you have a hearing, I think. In fact, there may not even be additional filing fees, if I remember correctly; in other words, one piece of paper and a hearing, if I have it right. (I'm not an attorney, so keep that in mind.)

Anyway, if your atty hasn't discussed this option with you then definitely check up on it. Good luck!!!

[HHM]

FreshLike...the only problem is, you cannot do an automatic-voluntary dismissal with a chapter 7.

[Minnymouth]

HHM - HOW WELL I KNOW.................about the automatic-voluntary dismissal in a Chapter 7..............

Would have solved my problems if I had been able to do that......

[FreshLikeADaisy]

HHM, you're right, it's not automatic like in a 13, just "voluntary". You file the petition, and the judge may or may not grant it. You CAN have a 7 voluntarily dismissed, it's just extra work. But to me, if it is the difference between filing now, cleanly, and waiting another 6 months, it's worth a shot which is why I suggested it. The worst that can happen is the judge says no... and then they wait the six months anyway.

[HHM]

HHM, you're right, it's not automatic like in a 13, just "voluntary". You file the petition, and the judge may or may not grant it. You CAN have a 7 voluntarily dismissed, it's just extra work. But to me, if it is the difference between filing now, cleanly, and waiting another 6 months, it's worth a shot which is why I suggested it. The worst that can happen is the judge says no... and then they wait the six months anyway.

True enough, but you do need a reason for the dismissal...saying: opps, we didn't read the fine print on the means test isn't going to cut it.