Terminology like “dismissal without prejudice” is used in the legal industry, and it has significant implications when it comes to a bankruptcy filing. While having your bankruptcy case dismissed might be upsetting, a dismissal without prejudice is preferable to one with prejudice. The debtor is free to file for bankruptcy once more at any time. A request for an automatic stay or an automatic stay extension could be necessary if they file again to thwart collection attempts from a debt collector.
There are several circumstances in which a bankruptcy case might be dismissed without prejudice, such as failing to fulfill all the conditions for a bankruptcy discharge of qualifying debts. It may also dismiss a case with prejudice, in which case you will be unable to seek for relief within the time frame specified in the dismissal order. The most common reason for a dismissal without prejudice is a procedural error.
Therefore, it is critical for you to work with a bankruptcy attorney as soon as you realize that bankruptcy is a possibility. Hiring a bankruptcy attorney decreases the chances of your bankruptcy case being dismissed, whether with or without prejudice.
Allow our bankruptcy attorney at Northwest Debt Relief Law Firm to help you! We at Northwest Debt Relief Law Firm know how stressful it can be to file for bankruptcy. Our Oregon (Portland, Salem, Medford) bankruptcy attorney will be here to help you through the entire bankruptcy process and guide you to a fresh start in life. Call us now!
Bankruptcy Dismissal: Without Prejudice
If you submit your bankruptcy petition with minor mistakes or missing facts, the court will almost certainly dismiss it without prejudice. They were just honest errors, and all you need to do now is fix them and gather the necessary documents to re-file your bankruptcy case. You should still avoid this kind of dismissal since your automatic stay will be jeopardized.
If you re-file your case, your automatic stay will only be valid for 30 days, and this is a shorter period than in most cases. An extension may be needed if you don’t take the necessary steps to make sure that your case is solved swiftly.
There are several reasons why your bankruptcy case could be dismissed without prejudice. These could be some of the reasons:
Failing to provide complete paperwork or legal documents.
Failure to finish the credit counseling classes required before filing.
Missing all the 341 court trustee meetings.
Failing to meet the criteria of the bankruptcy chapter you chose, such as passing the means test before filing a Chapter 7 case.
Failure to pay all applicable court fees and adhere to your Chapter 13 repayment plan.
Bankruptcy Dismissal: With Prejudice
Your case may be dismissed with prejudice if the bankruptcy trustee feels the mistakes in your case result from deliberate dishonesty rather than a simple and honest error. This could involve real bankruptcy fraud, although it could also involve less serious acts. In these cases, the bankruptcy trustee will make a decision based on the facts of each case.
The trustee will normally want that you wait for around 180 days before filing again, although this time period is entirely up to their discretion. Additionally, the trustee may limit the debts that will occasionally be included, excluding previously included debts.
If your bankruptcy case is dismissed with prejudice, you will have two options. Most folks just wait the requisite amount of time and make the necessary corrections. You may appeal the trustee’s decision to a higher court if you disagree with it. This may be a difficult situation, so it is advisable to consult with an experienced bankruptcy attorney to determine the best next actions.
Bankruptcy Dismissal: Its Impact On The Automatic Stay
The automatic stay is one of the most important benefits of filing for bankruptcy. Most creditors will not pursue collection activity against you as a result of an automatic stay. The availability of the automatic stay, on the other hand, may provide an incentive for a debtor to repeatedly file for bankruptcy in order to postpone collection attempts indefinitely. To avoid this, the automatic stay is subject to restrictions for debtors who file for multiple bankruptcy cases.
Suppose you file a bankruptcy petition within one year of a court dismissing a prior bankruptcy petition. In that case, the automatic stay will only remain for around 30 days after the new bankruptcy is filed.
If you file for bankruptcy after receiving two dismissals in the previous year, the automatic stay will not apply. Despite these regulations, a debtor may ask the court for permission to apply the automatic stay provided they can present good cause for the quick succession of filings. If a bankruptcy court believes that the debtor behaved in good faith, the bankruptcy judge may issue an automatic stay.
Voluntary Dismissal: Can It Be Done?
Chapter 7 Bankruptcy: No Automatic Right To Voluntarily Dismiss
You do not have the automatic right to voluntarily dismiss a Chapter 7 bankruptcy case after you have filed it. The following factors will determine whether you will be permitted to dismiss your Chapter 7 bankruptcy:
whether or not you have non-exempt assets
if your dismissal will damage your creditor/s
your grounds for requesting dismissal, and
your jurisdiction’s policies and procedures
A Chapter 7 bankruptcy case is unlike any other court case. There is no option to withdraw from Chapter 7 bankruptcy, unlike in Chapter 13 bankruptcy which allows you to back out.
Generally, you can only dismiss your Chapter 7 bankruptcy if you have a good cause. For example, if you discover that you will be losing property that you assumed you would be able to retain, you cannot just drop your case. Still, if you end up in a bind, seek legal advice from a bankruptcy attorney. An attorney may uncover a problem that qualifies as a good cause.
You Can’t Get a Chapter 7 Bankruptcy Dismissed if Creditors Will Suffer
All of your assets become the property of the bankruptcy estate and are under the supervision of the appointed bankruptcy trustee the minute you file for Chapter 7 bankruptcy. To pay your unsecured creditors, the trustee must sell your nonexempt property (this is property that you are not allowed to keep).
If you have nonexempt assets that can be liquidated to pay your creditors, the dismissal of your Chapter 7 bankruptcy will prejudice (negatively impact) the creditors. They will not be compensated. In such a situation, unless you can demonstrate cause and an alternate means to pay your creditors, the court would usually not allow you to dismiss your case.
Obtaining Permission from the Court to Dismiss in Chapter 7
Your financial needs will not be prioritized in bankruptcy court above those of your creditors. That is not to mean that you will never be granted permission to dismiss your case; it is possible. However, unless you have a convincing reason and can prove that you can pay your creditors outside of bankruptcy, the court would most likely refuse your motion for dismissal.
Converting to Chapter 13 When Chapter 7 Can’t Be Done
Even if the court declines your motion to discharge your Chapter 7 bankruptcy, you may be able to transfer your case to a Chapter 13 bankruptcy. Most courts will give you permission to convert if you have a stable income and can prove that you can fund a Chapter 13 bankruptcy.
If you have nonexempt property, converting your case could allow you to save it and repay a portion of your debts under a Chapter 13 repayment plan.
Chapter 13 Bankruptcy: A Special Right That Is Clearly Stated
You can easily dismiss a Chapter 13 bankruptcy case because the Bankruptcy Code expressly states that you can:
You may request a dismissal “at any time” throughout your Chapter 13 bankruptcy case. Therefore, if you realize you have made a mistake and change your mind shortly after filing the case, you can dismiss it.
The legislation states that if you ask, “the court shall” dismiss the case. This seems to imply that the bankruptcy court has no option. The language does not say the court “may,” but rather “shall” dismiss your Chapter 13 bankruptcy case.
Be advised that there is no comparable provision allowing for an easy dismissal of a Chapter 7 “straight bankruptcy” case. Thus, this is a valuable right unique to Chapter 13 bankruptcy.
Why Is This Right Reserved For Chapter 13 Only?
This right was most likely included by Congress to encourage people to file under Chapter 13. Naturally, if you know you can always get out of a legal situation, you’ll be more eager to try that legal solution. The goal is to persuade people to pay a portion of their debts rather than having them discharged under Chapter 7.
Congress deemed this right to dismiss so valuable that it cannot be forced to be given up. The legislation concludes, “Any waiver of this right to dismiss… is unenforceable.” (Bankruptcy Code Section 1307(b)) You cannot be coerced to sign away this right, whether through a contract or otherwise.
The Value of the Dismissal Option
In comparison to a Chapter 7 bankruptcy case, a Chapter 13 bankruptcy case typically lasts 3 to 5 years. A lot could happen within that period. Therefore, the option to get out of the case may be important.
The primary reason you had for filing your case may no longer be relevant. A good example would be if you filed for bankruptcy to make up for missed mortgage payments but then got a job offer from out of state. So you decide to give up or sell the house instead, and you no longer need the Chapter 13 bankruptcy case.
Or perhaps your financial situation changes to the point that you no longer need Chapter 13 protection, or it is insufficient to help you. For example, if you were behind on your mortgage and then received some money, you may be able to quickly pay up and no longer need the protection that Chapter 13 provides. Or your income drops dramatically, making it impossible to make up even with the extra time provided by Chapter 13.
It is wonderful to get out of these and many other situations if it is your best option.
Are you wondering if going into bankruptcy in Oregon is the best option for you? Make sure to call us today for an appointment so we can help you with your questions! Our bankruptcy attorney will take the time to answer your questions and go through your options with you.
Our goal is not just to get you out of debt, but also to get you back into the financial mainstream as fast and effectively as possible. This service is offered at no extra cost. Contact us now!