I have a question and unfortunately my attorney is useless. Husband and I filed a 13 in 2008. Earlier this year we got behind on our mortgage payments and the stay on our house was lifted. Just the house. Well we were still able to work out an arrangement with them to get current and are so now. However we now are unable to continue to pay the 900 month trustee payment and want to convert to 7. We are eligible means test wise. Does the lift of the stay 3 months ago bar us from dismissing our 13 and refiling? Would we have to wait 180 days? I know conversion is an option but our attorney tells us refiling is better due to dates of some tax debt. Please any answers appreciated!
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In response to:
"Does the lift of the stay 3 months ago bar us from dismissing our 13 and refiling? Would we have to wait 180 days?"
Technically you cannot voluntarily dismiss a 13 and refile within 6 months if a Motion for Relief From Stay has been filed. HOWEVER, my experience has been that if you are not trying to keep the asset that was involved in the lift stay motion, no one will raise the issue. If you can wait you will not have to think about this issue. If you do not wait it probably will be a non-issue.
"I know conversion is an option but our attorney tells us refiling is better due to dates of some tax debt."
This comment concerns me. Your attorney is correct. If you convert then the original date of filing remains intact and (but for the filing date) otherwise dischargeable taxes will not be discharged.
If you are trying to wait out the test for discharging taxes you must be mindful of the fact that the time frames DO NOT run while you are in a bk. The time frames stop running on the day you file and resume running the day the case is dismissed. In addition, depending on the assessment date, 11 USC 507(8)(A)(ii)(II) may have some impact. Your attorney has apparently picked up on this issue but you must make sure the time frames are properly calculated before you file case #2.
Des.
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