Bankruptcy Discharge Calculations

for debtors who have gone through a previous bankruptcy.

Is your client filing for a second bankruptcy?

Here is a simple table categorizing the bankruptcy discharge calculations and legal grounds for said decisions.

Debtor Filing for Chapter 7Discharge Allowed?Legal Grounds for Decision
Dismissed within past 180 daysNoCannot file for Chapter 7 if previous Chapter 7 or Chapter 13 case was dismissed within the past 180 days because: (1) debtor violated court orders; or (2) debtor requested the dismissal after a creditor requested relief from the automatic stay. (11 §109(g))
Previous Chapter 7 discharge or Chapter 11 discharge granted in a case filed within the past 8 years.NoCannot file for Chapter 7 if debtor obtained a discharge of debts under Chapter 7 or Chapter 11 in a case filed within the past 8 years. (11 §727(a)(8))
Previous Chapter 12 or Chapter 13 discharge granted in a case filed within the previous 6 years.No 1Cannot file for Chapter 7 if debtor obtained a discharge of debts under Chapter 12 or Chapter 13 in a case filed within the previous 6 years. (11 §727(a)(9))

 

1 unless debtor obtained bankruptcy discharge in good faith after paying at least 70% of unsecured debt.

 

Note: The above 8- and 6-year periods run from the date of the filing of the earlier bankruptcy, not the date of the bankruptcy discharge.

 

Debtor Filing for Chapter 13Discharge Allowed?Legal Grounds for Decision
Previous Chapter 13 discharge granted in the last 2 years.NoTime elapsed between bankruptcy discharge of old Chapter 13 case and date of filing new Chapter 13 case must be more than 2 years. (11 §1328(f)(2))
Previous Chapter 7, Chapter 11, or Chapter 12 discharge granted in a case filed within the last 4 years.NoTime elapsed between bankruptcy discharge of old Chapter 7, Chapter 11, or Chapter 12 case and date of filing new Chapter 13 case must be more than 4 years. (11 §1328(f)(1))

 

Note: In Chapter 13, time period is measured from filing date of old case to filing date of new case.

 

Note: A debtor is not barred from filing for Chapter 13 in the above circumstances (but debtor cannot receive a discharge).

 

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