If I filed bankruptcy before, can I file again?

If I filed bankruptcy before, can I file again?
The answer is yes.

The more important question is, how soon do you have to wait in between bankruptcy cases?

Chapter 7 to another Chapter 7 (8 years):
If you filed a Chapter 7 case and received a discharge of debt , then you must wait 8 years in between filing another Chapter 7 case.  See 11 U.S.C §727(a)(8).

Chapter 13 then Chapter 7 (6 years):
You must wait six years.  See 11 U.S.C.§727(a)(9).  However, if you paid 100% of your debts in the prior Chapter 13 case or paid at least 70% of your debts in the prior Chapter 13 case and the Bankruptcy Court found that this was your best effort then the 6-year rule does not apply.  See 11 U.S.C.§Section 727(a)(9),  provided you otherwise qualify.

Chapter 7 then Chapter 13 (4 years):
If you previously filed a Chapter 7 case and received a discharge of debt, then you would wait four years in between the prior Chapter 7 case and the new Chapter 13 case.   See 11 U.S.C.§1328(f)(1).  But, if after filing a Chapter 7 case you file a Chapter 13 case and you do not need a discharge of debt in the new Chapter 13 case, then you do not wait.

Chapter 13 to another Chapter 13 (2 years):
If you received a discharge of debt, meaning you completed your repayment plan in a prior Chapter 13 case, then you must wait two years before filing another Chapter 13 case or you will not receive a new discharge of debt in the new Chapter 13 case.  See 11 U.S.C.§  1328(f)(2).  But, if you are not looking for a discharge of debt in the new Chapter 13 case, then you can file another one without waiting.

NO time (0 years):
If you are going to pay your creditors back 100% and do not need a discharge of debt, then you do not need to wait to file a Chapter 13 case. Why would you file a bankruptcy case and not care about discharging debt?  A common answer is that you have fallen behind on your mortgage payments, or other types of payments, and you want to catch up and a Chapter 13 repayment plan would allow you to do that.  For example, if you fall behind in your mortgage payments for several months, it is nearly impossible to catch up quickly and you do not want to lose your house, and a Chapter 13 payment plan would allow you to spread those arrearages over a repayment plan of 3-5 years.

"Good Faith Rule": 
All cases must be filed in good faith to receive protection under the Bankruptcy Code, regardless as to timing.

Divorce Obligations may not be discharged through bankruptcy.

In a recent opinion issued by the New Hampshire Bankruptcy Court, (Honorable James B. Haines, Jr.  sitting in designation), the Court reiterated the parameters of what is, or is not, discharged through a chapter 7 bankruptcy case relevant to a divorce proceeding.  See Maville v. Maville (In re Maville), 2012 BNH 007 (Bankr. D.H. 2012)( Haines, J, sitting in designation).

Debts in the nature of alimony and child support are not discharged through a bankruptcy case.  Section 523(a)(5) of the Bankruptcy Code establishes that individual debtors will not be relieved of domestic support obligations; and, Section 101(14A) defines these to include debts in the nature of alimony, maintenance and support.  Prior to 2005, some obligations were discharged.  That changed with the amendments to the Bankruptcy Code in 2005.  Section 523(a)(15) now unqualifiedly provides that a property settlement obligation encompassed by that section is not discharged.  Maville, supra.

Click here for the full opinion from the Court's web site:

Click here: http://www.nhb.uscourts.gov/Opinions/Judge_Deasy/2012BNH007-Maville.pdf

FORECLOSURE: Homeowner's legal challenges should occur BEFORE the foreclosure sale auction of their home occurs, per the Federal Court.

In a recent opinion issued by the Federal District Court in New Hampshire, Chief Judge Laplante held that challenges to the foreclosure must occur BEFORE the foreclosure sale is held, relying upon NH R.S.A. 479:25,II.   SeeCalef v. Citibank, N.A. et. al., CV-11-526 (D.N.H. 2/21/13).

Click here for the full text of the opinion, which can be found on the Court's web site:

Click here: ISYS:web 8

The Calef case involved the federal court sitting in diversity, applying the state law as the court so interpreted it.  In so ruling, the court relied upon Gordonville Corp. N.V. v. LR1-A Ltd. P'ship, 151 N.H. 371, 377 (2004);Murphy V. Fin. Dev. Corp., 126 N.H. 536, 540 (1985); People's Utd. Bank. v. Mtn. Home Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 167-68 (D.N.H. 2012).  Having failed to move to enjoin the foreclosure sale before launching such legal challenges, Calef (the home owner being foreclosed upon) was barred from doing so, after the foreclosure sale.  Fuller v. Fed. Nat'l Mortg.Ass'n, No. 218-2011-CV-00668, slip op. at 4-6 (N.H. Super. Ct. Oct 2, 2012)(Section 479:25, II barred challenge to foreclosure based on alleged invalidity of assignment where plaintiffs had notice of assignment well before sale);Baril v. JP  Morgan Chase Bank, N.A., No. 218-2010-CV-501, slip op. at 4-6 (N.H. Super. Ct. July 20, 2011)(similar); Fed Nat'l Mortg. Ass'n v. Goyal, No. 09-C-0543, 2011 WL 4403839 (N.H. Super. Ct. Feb 25, 2011)(similar).

Further, as the court previously ruled in LeDoux v. JP Morgan Chase, N.A., 2012 D.N.H. 194, 13-15, the borrower did not have standing to object to the transfer of a note on grounds that would merely render the transfer "voidable" as opposed to "void", such as a challenge to the mortgagee's pooling and servicing agreement.

In Calef, the plaintiff/pro se challenged the foreclosure sale of his home, afterthe foreclosure sale auction of his home occurred. The Court held that insofar as Calef's claims arise from alleged infirmities in the assignment of his mortgage to the foreclosing entity, New Hampshire state law preclude him for pursuing those claims because he failed to file a petition to enjoin the foreclosure sale prior the the sale occurring. Here, the owner of the home allegedly defaulted, and was sent a foreclosure notice by the mortgagee's counsel, the Harmon Law firm.  In the process, MERS assigned its interest in the mortgage to Citibank and copied Calef on the assignment.  Defendant/mortgagee characterized Calef's suit as a challenge to its pre-foreclosure conduct  (i.e. claims that the assignment of mortgage from MERS to Citibank was invalid) and claims related to post-foreclosure sale conduct (allegations that foreclosure deed and affidavit were  invalid). 

Further, the court found that even where a foreclosure deed and affidavit are not recorded at all, that does not affect the validity of the foreclosure sale as applicable to the mortgagor (meaning, the home owner).  "It follows that where the recorded deed and affidavit are deficient in some respect . . .  that, too, is a matter of no concern to the mortgagor." Calef, at p. 13. 

As such, summary judgment was granted to the foreclosing entity.

3 ways to Stop a Foreclosure Sale of your Home

In New Hampshire, most home mortgages have a "power of sale" clause.  A "power of sale" clause means that the lender can take your home without taking you to court if you are behind in your home mortgage payments. Because of this "power of sale" clause allowed in New Hampshire home mortgages, New Hampshire is called a "non-judicial" foreclosure state.

A non-judicial foreclosure in New Hampshire can happen very quickly.

Take a look at the following time line from the HomeHelp web site to understand the process that shows you can lose your home in less than 120 days if you do nothing.
click here: http://www.homehelpnh.org/timeline.htm

Here are the steps to losing your home:
1. Default: Meaning, you are not current in your home mortgage payments. If you do not cure the default, you will soon receive an acceleration letter from the "mortgagee" (a "mortgagee" is the person or entity holding your mortgage and you, the borrower, are the "mortgagor") telling you that you need to pay the past due amounts within a certain time frame.
2. You may also incur late fees, penalties and the lender's costs and fees for the mortgagee's attorney for being in default - so being late in your mortgage payments may cause you to incur these $$$ additional charges.
3. After the acceleration lender, if you have not brought all of your mortgage payments, cost, fees and late charges current, the mortgagee is permitted to schedule a foreclosure sale of your home. The mortgagee must send you a notice of foreclosure sale at least 25 days before the foreclosure sale.
4. Mortgagee advertises once a week for three weeks before the foreclosure sale to publish the date and time that your foreclosure sale is going to take place.
5. Day of the Foreclosure sale:  An auctioneer on behalf of the mortgagee shows up on your front lawn on the day of the foreclosure sale and auctions off your home. Up to the point of foreclosure sale, you can "reinstate" by paying back the lender all the past due payments, costs, fees, late fees and penalties - again, it is not just paying back the late mortgage payments.
6. Whoever buys your home at the foreclosure sale has 60 days to record the foreclosure deed. The mortgagee may buy your home at a foreclosure sale auction in addition to a third-party.
7.  After the foreclosure sale deed is recorded, the new owner (often the mortgagee) will proceed to the process of eviction of the homeowner.

How do I stop foreclosure?
1. Lender consents:  Ask the mortgagee to adjourn the foreclosure sale and give them a reasons to do so - such as you have a mortgage loan modification pending, or you have a sale pending of your home that will repay the loan.  With respect to a loan modification, remember you can get FREE help in the State of NH from a Housing Counselor (click on our article regarding Housing Counselors which gives you the names and addresses of a free housing counselor near you).  If the mortgagee agrees to adjourn the foreclosure sale, it is very wise to get this in writing.  Or, you can pay the lender all of the back payments, late fees, penalties etc., that have accrued up to the date of the foreclosure sale, also called "curing the arrearages" - and then you can go back to making your normal monthly mortgage payments on time - but you normally only have until the time the foreclosure sale takes place to "cure the arrearages".
2. TRO:  You may be able to seek a temporary restraining order, also called an "injunction", in the state court to temporarily stop the foreclosure sale, but you need to give the judge a reason to stop the foreclosure sale and you need to do this before the foreclosure sale.  You must file for the TRO before the foreclosure sale.  LARC may be able to help you with the TRO process.  Please call us at 1-877-399-9995 for further information on a TRO.
3. Bankruptcy:  File a petition in bankruptcy which automatically stops the foreclosure proceedings. In a Chapter 13 bankruptcy proceeding, you can have up to 60 months (5 years) to cure the back payments you owe to the lender and keep your home, as long as you can make the normal monthly payments going forward.  A Chapter 7 bankruptcy will also automatically stop the foreclosure sale as well; however, once the Chapter 7 case is over, the mortgagee can reschedule the foreclosure sale.

Lien stripping your second mortgage in a Ch. 13 Bankruptcy Case.

In a Chapter 13 bankruptcy case, you may be able to permanently remove your second mortgage  - without paying it - if there is no value to secure it - and never pay it again.  

How can this be?  

In today's poor economic climate, real estate values are plummeting.  This is one instance where your home's declining value can actually help you. For example, if you have a first mortgage where you owe a balance of $200,000 and a second mortgage (or home equity line) where you owe a balance of $75,000 - but your home is only worth $200,000 or less, then you may be able to "lien strip" the second mortgage and never pay it again. Simply, if your home's value will not support the second mortgage, the bankruptcy code allows you to remove it.  This is called "lien stripping".

Chapter 13 may also allow you to get rid of unsecured debt such as credit cards and medical bills.

So, if you are facing the loss of your home, but you earn enough money to pay your first mortgage - Chapter 13 may allow you to get rid of your credit card debt, unpaid medical bills and get rid of your second mortgage.

This may mean the difference between saving your home or becoming homeless.

Learn more about Chapter 13 and how it can benefit you.

Filing for bankruptcy without a lawyer.

While filing a bankruptcy petition can be a challenge, even for an experienced lawyer, the law does allow you to file without an attorney and do it yourself.  This is called proceeding pro se. 

The New Hampshire Bankruptcy Court has a web site that provides helpful information on this subject.

Click her for more information:

Click here: ProSe Filing - Without an Attorney

Even if you decide to hire a lawyer, the court's web site is a valuable source of general information.