If I Filed a Prior Bankruptcy Case That Was Dismissed, Can I Refile My Case Under the Current Bankruptcy Laws

  Recent changes to the bankruptcy law have weakened the scope of the automatic stay. Perhaps the biggest change has to do with rules for re-filed cases - second or third filings.

  The most important protection provided to you in bankruptcy is called the automatic stay.  The bankruptcy stay stops almost all creditor action.  The automatic stay stops foreclosures at the last minute, it disallows a repossession and it stops wage garnishment, among other things.

Automatic Stay Not So Automatic Anymore

  If you had a bankruptcy case active within the preceding year, and now you need to file a second case, the automatic stay will terminate in 30 days unless we file a Motion and ask the judge to extend the stay for good cause.

  If you had two or more cases active within the previous year, and now you need to file a 3rd or 4th case, no automatic stay goes into effect at all.  We would still have the right to file a Motion to have the automatic stay imposed.

  What does all this mean?  The purpose of these changes to the automatic stay is to stop people from filing case after case, all while living in a house or driving a car for free while their case winds its way through the bankruptcy system.

  Debtors who used bankruptcy to take advantage of inefficiencies in the bankruptcy case management system will have a much more difficult time doing so.  Unfortunately, these new automatic stay rules also affect the honest, but unfortunate debtor whose previous case or cases were dismissed for reasons beyond the debtor's control - issues such as a job loss, an illness or death in the family often result in the failure of a Chapter 13 plan or even a Chapter 7.

  If you had a previous case, you need to let your Clark & Washington representative know immediately.  We will search the Bankruptcy Clerk's docket records for information about a previous case filed in the Northern District of Georgia.  You should tell us if you had a prior case filed elsewhere in the country.

  In some cases, we need only wait a few weeks to get past the year anniversary of your prior case being dismissed or discharged - then the new rules about re-filed cases will not apply to us.

Special Motion to Extend or Re-Impose the Automatic Stay
for Some Second or Third Filings

  If you cannot wait, or if you had two or more cases pending within the last year, we will have to file special motions.  Here is what you need to know:

  A Motion to Extend Stay applies if you had only one prior case active within the past year.  As discussed above, the automatic stay does go into effect (it can stop a foreclosure or cancel a garnishment) but the stay will come to an end in 30 days.

  Our Motion to Extend Stay must be supported by a good reason for maintaining the automatic stay.  Good reasons include:

• a new job
• a significant increase in household income
• a significant decrease in household expenses
• a change in circumstances between this case and the last - for example you may have surrendered an expensive car or house in the last case

  Each of the judges in the Northern District of Georgia has different criteria for deciding if your reasons for wanting to extend the stay are good enough.

  A Motion to Impose a Stay must be filed if you had two or more active cases pending in Bankruptcy Court within the past year.  As you might imagine, our local bankruptcy judges will be expecting a very good reason to impose the stay in a 3rd or 4th filing.

  If you are facing a mortgage foreclosure and need to file a 3rd or 4th case to stop it, please do not wait until the last minute to call us.  Although we can and do accept cases that require a Motion to Impose the Stay, realize that we may have to wait 10 to 20 days to get a hearing before the Judge.  If you are facing a foreclosure in two or three days, there may not be enough time to prepare and file a Motion and to be heard by the Judge.

  If you file a 3rd or 4th case and no stay goes into effect, the bankruptcy filing will not serve to stop an imminent foreclosure or repossession, and the filing may be a waste of time and money.