Consequences of 2 Bankruptcy Dismissals

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I can't seem to find the official Bankruptcy Rule about 2 cases dismissed within a year, and how there is no automatic stay with the filing of the next one. Is there no automatic stay if two Chapter 13's were dismissed within 365 days, and the Debtor files a new Chapter 7 two years after that last case was dismissed?

Does the clock start after 1 of these Chapter 13 dismissals is more than a year old, or is the next case doomed -- whether Chapter 7 or 13 -- no matter how much time has elapsed since the 2nd dismissal?

I'm trying to gauge the consequences of my 2nd pro se Chapter 13 filing.

Des? JustBroke?

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Also, as a side note, I was wondering if this post should be moved to a new Forum titled "Automatic Stay," which will address all questions specifically about this topic, the debtor's protections thereof, creditors' violations of the stay, and possible motions regarding Relief from Stay, Impose or Extend a Stay, and other remedies, etc.

[justbroke]

It's in the bankruptcy code... 11 USC 362 ... https://www.law.cornell.edu/uscode/text/11/362

(3) if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal ...

The rule just provides that the automatic stay will end 30 days after filing. However, an attorney would file a Motion to Extend Automatic Stay and file that contemporaneously with the court to seek that the stay remain in place. You must have a very good reason why the court should be compelled to extend the stay. They are trying to prevent people from using the bankruptcy stay to stave off creditors indefinitely by continually filing.

Since the text of the statute reads "filed by" and references the "dismissal" of the prior date, then it's measured from the dismissal of the prior case to the date that the debtor filed a subsequent case. The rule extends to "NO" automatic stay if there were more than two bankruptcies dismissed within the same year. The code only says "pending" within the year so I don't know that having two bankruptcies with one dismissed more than one year ago and the other within one year would trigger the "no stay" provision. It would, however, trigger the 30-day stay.

These rules were enacted, mostly, to stop people from using bankruptcy as a foreclosure prevention tool.

The reason the bankruptcy form requires you to list all prior bankruptcies (and I think their outcome) is so that they can determine (a) whether a discharge can be granted, and (b) whether the stay is normal, 30-day, or none. Either way, it reads as though you'll need to do "first day motions" if you file within the year... and provide a very convincing reason as to why the court should provide the protection of the stay.

despritfreya may have more details, but that's how I understand this to work.

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Awesome -- I think you nailed it -- thanks, JB. It's unfortunate though that I had to do an emergency filing, because if I had waited just 3 more weeks, I would have received the benefit of the full automatic stay. But the angry Landlord was literally one day away from obtaining a Writ of Restitution from the Court with the CR2A agreement.

I noticed on these "sample motion forms" that there is no reference to the "Federal Rules of Civil Procedure, made applicable by the Federal Rules of Bankruptcy Procedure." Does the FRCP not apply to these types of Motions to Extend Stay, or am I just thinking of Adversary Proceedings? According to the FRCP, if I'm not mistaken, a Motion that affects all interested parties would require 14 days to respond before the hearing, and 21 days for the movant to file and serve such a Motion before the hearing.

[justbroke]

The FRCP applies to everything that you do with the court and most certainly on paper. You are correct that the FRCP tells you how to file the papers, upon whom they must be served, and the number of days. If your court allows "negative noticing" for that type of "paper" then you could use that. These are all procedural issues and the FRCP covers these pretty well but it's not easy for a Pro Se to get them right.

What I want to say is that I think that filing bankruptcy to slow down an eviction-related issue is useless. I don't know what you're really trying to do, but my guess is that the landlord will seek an emergency hearing to enforce the agreement. or just file for relief from or wait out the automatic stay.

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Hi JB -- to make a short story, I had initially contacted the Landlord asking for a 30 day extension to the CR2A agreement, since I can't control the time frame when the new apartment will become available. When he declined, I decided to use the automatic stay of Bankruptcy to enforce the 30 days. That's not the only reason for my Bankruptcy, but circumstances required an emergency filing. I would have spent the same amount on 2+ storage units for the month, which is about the Chapter 13 filing fee of $313.

Upon relief from the automatic stay, the CR2A agreement could technically be enforced in state court, however, the Landlord also breached the contract by showing up unannounced on the property to call the Sheriff, believing the CR2A was the equivalent of a Writ of Restitution. He attempted to do a "self-help eviction" by making harassing phone calls and texts at 5 AM, ringing the doorbell and demanding the keys. The CR2A agreement specifically stated that the Landlord's attorney must give my attorney 24 hours notice before seeking the Writ of Restitution. So this is a clear violation on their end as well.

And here's a question for Des, too. What I'm concerned about is how the CR2A agreement gives them attorney fees, but since neither party has specific performance, the contract should be unenforceable. Would this be a state court or Bankruptcy Court issue, i.e. wondering if I should file an AP against the Landlord to discharge the $2500 in attorney fees, rather than having them file a proof of claim for the $2500. Technically this debt would be contested.