CanI file for Chapter 13 to stop my house from going into foreclosure?

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CanI file for Chapter 13 to stop my house from going into foreclosure?

I already filed a Chapter 7 in 2007 that was discharged in 2008.

Asked on July 29, 2011 Pennsylvania

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

As you seem to be aware, a Chapter 13 filing may stop a foreclosure proceeding; a court order called the "automatic stay" goes into effect immediately. The automatic stay not only prohibits a creditor from pursuing a foreclosure, it also prohibits a state court from hearing a foreclosure case and taking any further action. In fact, even if a foreclosure proceeding has already commenced, a Chapter 13 filing will stop it. However, the bankruptcy petition would need to be filed before the sale date of the property. After filing, a debtor will propose a plan to repay the amount in arrears on the mortgage. The debtor will begin to again pay their regular mortgage payments.

As for the timing between bankruptcy filings, the general rule is that a debtor cannot obtain a discharge in a Chapter 13 case if they obtained a discharge in a Chapter 7 case filed within the past 4 years. The time period is measured from the filing date, not the date of discharge. So in your case, depending on the month you file you may be eligible for filing a Chapter 13 now. In other words if you filed prior to today's date you are eligible to file; if you filed on today's date or after then you must wait until 4 full years have elapsed.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

As you seem to be aware, a Chapter 13 filing may stop a foreclosure proceeding; a court order called the "automatic stay" goes into effect immediately. The automatic stay not only prohibits a creditor from pursuing a foreclosure, it also prohibits a state court from hearing a foreclosure case and taking any further action. In fact, even if a foreclosure proceeding has already commenced, a Chapter 13 filing will stop it. However, the bankruptcy petition would need to be filed before the sale date of the property. After filing, a debtor will propose a plan to repay the amount in arrears on the mortgage. The debtor will begin to again pay their regular mortgage payments.

As for the timing between bankruptcy filings, the general rule is that a debtor cannot obtain a discharge in a Chapter 13 case if they obtained a discharge in a Chapter 7 case filed within the past 4 years. The time period is measured from the filing date, not the date of discharge. So in your case, depending on the month you file you may be eligible for filing a Chapter 13 now. In other words if you filed prior to today's date you are eligible to file; if you filed on today's date or after then you must wait until 4 full years have elapsed.


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