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Can a Chapter 7 bankruptcy filing be dismissed by the debtor?
Anonymous3 views6 answers
Hello. I recently retained an attorney to file a Chapter 7 BK for myself and my spouse. I previously filed a Chapter 7 in 2008 and it was discharged. I advised the attorney's paralegal as we were preparing the paperwork that I had previously filed the BK, I was not asked any questions around when the BK was filed and at no time was I advised that I may not be eligible to file. After my BK was filed, the attorney advised me that they received notice from the court that I was not eligible to file. I am now having a difficult time receiving clear guidance. Is it possible to withdraw a case in an situation such as this one? If I had been properly advised, then I would not have filed. Any insight is appreciated. Thanks.
Why was information on the timing of your previous discharge not relayed to either the paralegal or the attorney? The U.S. Trustee will file a motion to dismiss this case, because of your previous filing within the past eight years. An additional motion must be filed to deconsolidate the case, if your wife is eligible for a bankruptcy discharge. Once the case is deconsolidated, the court will grant the motion, and will dismiss your case. Your wife should be able to get a discharge, if she has not filed a previous case within the past eight years.
Generally, chapter 7 case are nearly impossible to dismiss by the Debtor. Since you aren't eligible for a chapter 7 discharge, expect the UST to demand that the case be dismissed as to you. So if you jump the gun & ask for dismissal, I would expect the court to say sure. Hope this perspective helps.
Robert W GambrellChapter 13 Bankruptcy AttorneyOxford, MS ·
You may be better served by converting to a chapter 13 than dismissing. That would depend upon the type of debt you have, your income and expenses. IF you are an under median debtor, you could propose a 3 year plan. There is no way to know that without a thorough review of your situation.
In our jurisdiction, the US Trustee does not ask to have your case dismissed. Instead the UST simply files an adversary proceeding objecting to the discharge. If the UST fails, then the court will just close the case without a discharge. If you can avoid consolidating the case, that would be advisable. If you do that, either you or your spouse will be given another case number, making it appear that you have filed two bankruptcy cases. That is another problem to deal with on your creditor report.
Lewis Matthew RobertsBankruptcy AttorneyAltamonte Springs, FL ·
I always ask the question during the consultation: have you ever filed before? Then I also look up the prior filing to make sure all timing issues are good.
That can't be helped now. But I might be concerned about this attorney handling my chapter 13 going forward, if you decide to convert.
