Pro Se filer, NEED HELP, wife has previous discharge

[bcoleman]

well.......i/we just made a super boneheaded move and i still can't believe it, so i'm hoping somebody here can offer some advice.........i'm going to call the Trustee tomorrow and see what he can tell me, but not sure what to expect with that......and if he doesn't help I don't know who else I can call, atleast not without paying somebody for advice

After stressing for weeks, using the nolo book and this forum thinking I'd covered every angle, we filed jointly on 7/31/08 and just received an order to show cause why order denying discharge should not be entered pursuant to Section 727(a)(8)

what this means is my wife had previously filed and was granted a discharge within 8 years.........without actually digging up the paperwork, which we didn't even know where it was stored away we both thought that it had been easily more than 8 years, and even thought the deadline was 7 years, so we didn't perform our due diligence before filing b/c we were certain we had nothing to be concerned about...........the worst part about it is that she filed on 8/29/00, which means we would have only had to wait ONE MONTH!!!

Does anybody know what's going to happen or what my options are? - We are in California, which is a community property state:
1.) Is it possible to show cause and have the case continue?
2.) If they file the order to deny discharge does she fall off of the case and it becomes an individual case for me at that point? If so can she simply re-file on her own soon, or will it be 180 days? OR are we both denied?
3.) I'm aware of the option to voluntarily dismiss, and re-file, but I'm concerned that it would be denied or that we'd have to wait 180 days, any thoughts?
4.) Can I amend, and switch it to an individual case at this time?

[FreshLikeADaisy]

As a pro se filer myself, I understand your dilemma. I'm not certain of the options as you've described them; the most I could do would be to guess. BUT, if I were in your shoes, and I couldn't find the answers I needed prior the hearing, I would at least make sure that I attended the hearing to ensure that 1) the judge knows it was an honest mistake and not an attempt to abuse the process (should be self-evident, but it doesn't hurt to point it out ) and ask for a dismissal that will allow me to refile immediately, if the judge cannot see fit to deny the motion itself.

Basically speaking, I don't see that you are going to be able to find cause that will satisfy the requirements of the law, and it might actually be wisest not to try, turning your thoughts toward engaging the mercy of the court.

Again, I'm not an atty, and if someone knows another possible angle you could pursue I hope they post. But in the meantime, I know that the judges in my own district are fairly filer-friendly, and might be persuaded to allow me to refile with no wait if I made it clear that it was an error on my part and I cannot afford another filing fee for what amounts to an overlooked technicality. The fact that you were only one month off... that sounds like a good argument to me, actually. Good luck!!!

[bcoleman]

thanks for your advice........one thing that is in our favor is we are a pretty black and white case with no real property, and no assets other than household goods, furniture, etc, and fall pretty easily below the median, so there is no presumption of abuse, and i would hope that they will have some mercy on us

in response to your suggestion Fresh, here is my question if you can help:

This hearing is set for the same day as the creditor meeting at 10am, and the creditor meeting is at 2pm......do you feel there is any chance that the case could proceed based on circumstances, or would we be FORCED to refile?.......also can they grant the dismissal at this hearing or would we need to file the voluntary petition ahead of time?.....in other words if we just wait until the hearing are we risking anything (eg., having them proceed with the order to deny discharge, and have it dismissed with prejudice, vs. filing the voluntary petition ahead of time?)

i hope i'm being clear with my questions......thanks for yours, or anybody else who can help's advice and generosity, i still can't believe we overlooked this and put ourselves in this predicament

[bcoleman]

bump, hoping someone else can help with this - thx

[HHM]

1. You are up against a hard-line rule of BK, so it is unlikely the court has any option but to dismiss.

2. She can refile in under 180 days, but she will need to show cause why the refiling was not abusive.

3. You cannot voluntarily dismiss a chapter 7, I don't know where you got that idea, but you can't. You need trustee/court approval to dismiss a 7.

4. With CA being a community property state, it is difficult to get an individual chapter 7 that would actually help.

My recommendation...go the hearing and plead you case. Even though this aspect of BK is a hard line rule, you are better off fighting it and losing, than not fighting at all.