If you filed bankruptcy in the past, how soon before you can file again? And how often can you file for bankruptcy and receive a discharge?

While you can file bankruptcy as many times as you want, waiting periods will depend on what type of bankruptcy you filed previously, the timing of it, and how the case ended.

What If You Need to File Bankruptcy Again?

In filing for bankruptcy, the goal most people have in mind is to have their debts eliminated. Your debts get discharged at a discount, after you pay your creditors a portion. You sell nonexempt assets in a Chapter 7 bankruptcy or complete a repayment plan in a Chapter 13 bankruptcy.

But just as you didn’t plan on needing bankruptcy before, unexpected crises can strike at any time — and you could easily find yourself deep in debt again. Health problems, unemployment, divorce, or business failures could cause you to fall behind on your bills. Bankruptcy is still option, but you may need to wait to file and have your debts discharged.

What Factors Limit the Timing of Multiple Bankruptcy Filings?

How soon you can file bankruptcy after your debts are discharged in bankruptcy depends on two factors.

Did You File for Chapter 7 or Chapter 13 Bankruptcy?

Federal law sets the timing between a bankruptcy discharge and a subsequent bankruptcy filing. This timing is based on the type of bankruptcy for which you received a discharge and the type you now wish to file.

You will wait the longest if you file Chapter 7 bankruptcy following a Chapter 7 or 13 discharge. You must wait eight years if your debts were discharged under Chapter 7 and you file for Chapter 7 again. A gap of eight years must exist between the day your debts were discharged and the day you file again.

You must wait six years if you received a Chapter 13 discharge and want to file for Chapter 7. The gap of time between a Chapter 13 discharge and filing Chapter 7 must be a minimum of six years. You won’t need to wait six years if you paid the unsecured debts associated with your Chapter 13 repayment plan. The same applies if you paid 70% of your unsecured debts made your best effort to abide by the plan.

You won’t need to wait as long if you seek a Chapter 13 bankruptcy after receiving a bankruptcy discharge. You must wait four years between the day you received a Chapter 7 discharge and then file for Chapter 13. The wait is two years if you filed Chapter 13 and want to file for Chapter 13 again. Because Chapter 13 repayment plans last three or five years before discharge, you can file Chapter 13 again immediately after discharge. If you complete payments under your repayment plan before the three or five years, you can immediately refile another Chapter 13.

Did Your Previous Bankruptcy End in Dismissal?

How soon you can file for bankruptcy again is also limited by whether your prior bankruptcy ended in dismissal. If your previous bankruptcy was dismissed with prejudice, you’ll need to wait at least 180 days before you file again. Your case will be dismissed with prejudice if you don’t obey court orders, delay your case, or file multiple times.

If your prior bankruptcy was dismissed without prejudice, you might be able to immediately file for Chapter 7 or 13. It will not matter what Chapter bankruptcy you filed earlier.

A prior dismissal in a bankruptcy case will also result in a shorter automatic stay period. When you file bankruptcy, you receive an automatic stay that stops creditors from collecting against you for a period of time. If you file bankruptcy within one year of dismissal, the automatic stay associated with your new bankruptcy will only be 30 days. If two or more of your bankruptcy cases are dismissed within a year of filing, you will not receive an automatic stay.

How Often Can You File Bankruptcy? Ask an Omaha Bankruptcy Attorney

If you are considering filing for bankruptcy again, an experienced Omaha bankruptcy attorney can help. At Burke Smith Law, we can help you assess your situation and understand your options. Contact us today to learn more.

To get back on the path to financial relief, can you file bankruptcy on student loans? The answer is straightforward, but the process is not. This post will explore what you need to know as you consider your bankruptcy options.

If you are having financial difficulty, the Omaha bankruptcy attorneys at Burke Smith Law can help you. Contact us today to learn how we can help set you on the path to financial freedom.

Why File Bankruptcy?

Financial stress can be debilitating. If you are behind on your student loan payments, you may be considering filing bankruptcy.

The good news is that federal law gives you the right to declare bankruptcy and get relief from your creditors. The bad news is that it comes at the expense of your credit and is a long process.

But the fact is, bankruptcy gives you the chance to wipe your financial slate clean. It’s the right choice if you are looking for a start fresh.

What Happens to Student Loans in Bankruptcy?

So, can you file for bankruptcy to wipe out student loans? Yes, but only if you can prove “undue hardship.” To do this, you will need to make a compelling case that you cannot repay your student loans.

Courts will decide whether you can discharge your student loan debt in bankruptcy using a legal standard. Most courts will use the “Brunner Test” to evaluate hardship. Under it, your student loan debt will be forgiven if you can prove three things:

• Poverty – You couldn’t maintain a basic standard of living with your current income and expenses if you continued repaying your loan.
• Persistence – Your current financial hardship will likely last for the majority of the repayment period.
• Good faith – You sincerely attempted to repay your student loans in the past.

Some courts use other tests as well. The totality of the circumstances test looks at all relevant facts in your case to determine undue hardship. A special test for Health Education Assistance Loans (HEAL) requires you to prove two things: (1) that your loan became due more than seven years ago; and (2) repayment will be an “unconscionable” burden on you.

Even if you are successful in proving hardship, the judge could decide to have only a portion of your loan forgiven. If not discharged, you could end up with a restructured loan where you repay under new and easier terms.

You have a better chance of having your student loan discharged if your loan is from a for-profit vocational or trade school. You will have to argue that there was a breach of contract. Or you could convince the judge that the school’s practices were deceiving, unfair or fraudulent.

Consider Other Options First

Because of the difficulty in getting student loans discharged in bankruptcy, you should first consider alternate repayment and forgiveness options.

Bankruptcy should be the last resort for you to resolve your debt issues. There are other solutions that could help relieve your student loan debt.

You should talk to your lender about any hardship programs it may have. Also, look into programs like income-driven repayment plans, deferment or forbearance. Under the Public Service Loan Forgiveness (PSLF) program, you could work for a government agency or non-profit and have your loan forgiven.

The Process for Discharging Student Loan Debt in Bankruptcy

If you want to discharge your student loan debt in bankruptcy, you will need to take three steps:

• Hire an experienced bankruptcy attorney – You could represent yourself through bankruptcy proceedings. But, making a case for discharging student loans in bankruptcy is more complicated.
• File bankruptcy – Your lawyer will help you decide whether you should file for Chapter 7 or Chapter 13 bankruptcy. Chapter 7 is a shorter process that eliminates all unsecured debt. Chapter 13 restructures your debt so that a portion of it is repaid through a plan that could last up to five years.
• File an adversary proceeding – Next, your attorney will have to file an “adversary proceeding.” You will present evidence and prove to the court that payment of your loans will cause an undue hardship. This lets the bankruptcy court determine whether your loan could be discharged.

What If Your Student Loans Aren’t Discharged?

In most cases, student loans are not discharged in bankruptcy. When this happens in a Chapter 7 bankruptcy, you will still have to make payments after you complete bankruptcy proceedings. After a Chapter 13 bankruptcy, you could have reduced payments as a part of your repayment plan.

Contact an Omaha Bankruptcy Attorney Today

If are thinking of filing bankruptcy on student loan debt, an experienced local bankruptcy attorney can help. Hiring an effective attorney can secure your financial future. At Burke Smith Law, we can help you determine whether filing is a good option for you. Our Omaha, Nebraska bankruptcy lawyers pride themselves on the high level of service provided to all of our clients.

If you are behind on your mortgage payments, you may be considering filing for bankruptcy. But can bankruptcy stop foreclosure? The answer is yes. In most cases, you can avoid or delay the bank’s foreclosure of your home by filing for bankruptcy.

The Omaha bankruptcy attorneys at Burke Smith Law can help you protect your home. Contact us today to learn how we can help set you on the path to financial freedom.

Are You Facing Foreclosure?

If you’ve fallen months behind on your mortgage payments, your bank might initiate the foreclosure process. Most banks will not be willing to work out an alternate arrangement such a short sale or loan modification with you. They will seek to repossess your home and sell it at auction. The auction proceeds are then used to repay the mortgage and any legal expenses.

The foreclosure process is a long one. Typically, banks will not begin foreclosure until after you’ve missed more than three or four payments. This gives you time to think about loan forbearance, short sale, or deed in lieu of foreclosure.

But if these alternatives won’t work for you, you should think about bankruptcy. Filing for Chapter 7 bankruptcy can delay foreclosure for a few months. Filing for Chapter 13 bankruptcy can help you avoid foreclosure altogether.

How Do You Delay Foreclosure?

The court will automatically issue an Order for Relief when you file for bankruptcy. The order includes an “automatic stay” that tells your bank and other creditors to stop collecting on your debts.

If the bank already scheduled an auction of your home, the order will postpone the sale until your bankruptcy is finalized. This delay can last three to four months, unless the bank is successful in persuading the court to lift the automatic stay. If so, you will still have a delay of at least two months.

The three or four month delay will also be shortened if your bank files a foreclosure notice before you file for bankruptcy. In this case, an automatic stay you might be granted will not stop the clock on the foreclosure and auction of your home.

How Can Chapter 13 Bankruptcy Help?

If you want to keep your home but find yourself behind on your mortgage payments with no possible means of making up what you owe the bank, you should file for Chapter 13 bankruptcy. This way, you will be allowed to pay off the late unpaid payments over a period you propose in a Chapter 13 repayment plan.

Chapter 13 bankruptcy is only feasible if you have enough money to pay both your past due balance as well as your current mortgage payments at the same time. It is also useful to get rid of payments on second or third mortgages. This is possible if your home has dropped in value since you bought it and your equity is only enough to secure your first mortgage.

How Can Chapter 7 Bankruptcy Help?

Chapter 7 bankruptcy can help you by forgiving any debt you have that is secured by your home, including mortgages. However, it does not lift the foreclosure action that the bank has taken against you. So, you could still lose your home. You could also lose other valuable possessions that can be sold to make your bank whole again from their loss.

In addition, Chapter 7 bankruptcy is limited to those whose average gross income for the six-month period before the bankruptcy filing does not exceed the state median income for the same sized household. It is not an option for you if your income is enough to pay for your living expenses and a reasonable Chapter 13 repayment plan.

Why Should You Consider Bankruptcy?

If the bank proceeds with foreclosure and you do not file for bankruptcy, you will not only damage your credit but will also have to keep making mortgage payments. Filing for bankruptcy gives you the option of a fresh start. It does temporarily damage your credit score. But it also gives you a chance to rebuild your credit, save money, and get back on your feet sooner.

Contact an Omaha Bankruptcy Attorney Today

If you are facing foreclosure, talk to an experienced bankruptcy attorney. We can help you determine whether filing is a good option for you. Burke Smith Law can help you secure your financial future and possibly keep your home.

At some point, your circumstances may leave you wondering, “Am I responsible for my spouse’s debt?”

In Nebraska, you’re usually not responsible for debts that your spouse incurs, either during or before marriage. You especially don’t have to worry about debts they incurred before you married them.

But (and there is always a but), there’s one arcane legal theory where you will have to worry about your spouse’s debts. Even if everything else is covered, certain things may not be. Let’s take a look at what those things are.

If you have questions about your debts, contact Burke Smith Law to speak to an experienced Omaha debt relief lawyer.

What Is the “Doctrine of Necessities”?

In most states — including Nebraska — you may come up against the Doctrine of Necessities. This doctrine applies mostly to medical debts. Even if your spouse passes away, creditors will expect you to pay for any medical bills your spouse incurred before they passed. However, the necessities rule may also apply to basic necessities like rent, food, utilities, clothing, and any other items or services provided to help your spouse live a normal life. So if you have a spouse who runs up $1000 phone bill, you’re simply out of luck. In that case, the answer to the question of “Am I responsible for my spouse’s debts?” is “Yes, you are.”

Why Am I Responsible for My Spouse’s Debt, If It’s Only in the Name of My Spouse?

Unfortunately, the fact the debt is only in your spouse’s name doesn’t matter under the law. You’re responsible for the debts even if you didn’t sign for them. This is where the “in sickness and in health” part of most marital vowels receives the most strain. Worse, the rule stands even if you’re separated, and even if you never agree to or sanctioned a specific medical treatment. Because Nebraska is a state that recognizes common-law marriage, the Doctrine of Necessities applies even to common law spouses, especially if you’ve already taken on the responsibility of care for your spouse. The only way to avoid this is to have a court or the state legislature relieve you of the responsibility. There have actually been high-profile cases in which this has occurred.

The Doctrine of Necessities can, in some cases, add severe financial insults to injury, and it applies to all spouses, whether male or female. Some have argued that this places an undue burden upon the wives of men who died with high medical bills.

Is the Doctrine of Necessities Constitutional?

You might think this is an unfair law, and that the states at least would have stricken it down. In fact, we, both Alabama and Virginia have done so under the justification that the law is archaic and unfair to women, who tend to outlive their husbands by years. The Doctrine of Necessities can place an undue financial burden on these women for the rest of their natural lives.

While Nebraska still adheres to this concept, many jurists and lawmakers consider it old-fashioned, overly broad, and harmful. In time, some court will probably strike it down at the federal level, as has happened with many other such laws. However, that will require a challenge that goes all the way from local to state to federal courts.

What Happens If You Get a Divorce?

If you and spouse decide to get a divorce try not to leave the marriage with shared debt. Pay off any joint cards together. Or you can divide the debt and then transfer it to cards that are in each spouse’s name. Doing this will protect you if your ex-partner later decides to file bankruptcy or fails to pay what they owe. If you don’t have protections in place, creditors could go after you for the full debt amount.

Speak to an Omaha Debt Relief Lawyer

If you find yourself the “beneficiary” of a spouse’s debts, talk to a debt relief lawyer. At Burke Smith Law, we can help. Contact us for a free consultation.

If you’re planning to file bankruptcy, you may be wondering whether filing bankruptcy while married is a good idea. There are certain benefits to doing so jointly that will help you keep more of your property and dispense with more of your debt. But at the same time, the bankruptcy may negatively impact your spouse if you’re not careful.

At this point, you may be asking yourself, “Can I file bankruptcy without my spouse?” Yes, you can. But even in a common law property state like Nebraska, individual bankruptcy may still hurt your spouse. Let’s take a look at how the state treats your debts and properties when you’re filing bankruptcy while married.

What Is Community Property?

Nebraska is not a community property state — it’s a common law property state. So what’s the difference?

In community property states like California and Texas, most if not all of the property acquired during your marriage is officially owned by both spouses, no matter whose name is on the title. Therefore, all that property can become part of your bankruptcy, which can hurt your spouse financially if you don’t have enough bankruptcy exemptions to cover all your joint assets. In such a case, filing bankruptcy as a couple is preferable to individually filing bankruptcy while married, and this is what almost always happens.

What Is Common Law Property?

However, in common law property states like Nebraska, the rules of equitable distribution determine what properties belong to who, very like the way most states divide assets after a divorce.

Basically, anything that you brought into the marriage, that was given or be quested to you, or that has your name as sole owner on the title is considered separate property: yours alone. That property applies toward the bankruptcy first. You both own half of any joint marital property (property acquired during your marriage in both your names), and the bankruptcy applies only to your half of an asset. This may mean, however, that you have to sell the asset to get the value in cash, an issue we’ll cover in a moment.

What Properties Go Toward Your Bankruptcy?

In Nebraska, the courts will take into account your separate property and your half of any common marital property when you are individually filing for bankruptcy while married. Your spouse’s property will not become part of the bankruptcy. But — and this is a big but — if you don’t have enough exemptions to cover all the properties you own half of, your Chapter 7 trustee can force you to sell those properties, despite them being half-owned by your spouse. Your spouse will lose the property but will get half the sale proceeds; your half will go toward paying your creditors.

The good news is that the trustee has to at least try to divide the property before selling it. This works best with land, which they can easily divide, or with properties that have multiple parts. The trustee must also demonstrate that selling the property will benefit both co-owners more than it hurts them.

In Chapter 13 filings, you’re unlikely to lose joint property, since this kind of bankruptcy generally involves settling up structured payments to catch up with the arrearage on your debts.

Your Discharged Debts

If you file individually, your bankruptcy will eliminate only your separate dischargeable debts and your half of your joint debts. Your spouse still has to take care of their half. If you’re the only spouse with financial woes, it makes sense for you to file individually, as long as you can cover joint properties with exemptions and avoid their forced sale. If, however, your spouse shares your debt issues, you’re better off jointly filing bankruptcy while married. That way, you’ll have more exemptions, and the dischargeable debts of both of you are eliminated. You may still have to sell joint properties that exemptions don’t cover, though.

If You Have Questions About Filing Bankruptcy While Married, Speak to an Experienced Bankruptcy Attorney

Bankruptcy law can be confusing in any state. And it’s often hard to tell whether you should file individually when married, or as a couple. For the best results, you need legal counsel. If you live in the Omaha area, call Burke Smith Law. We know you don’t want to hurt your spouse. We can help you figure out which option for filing bankruptcy while married works best for you.

If you’re dealing with mountains and debt, you likely have many questions about what you should do and how to deal with your financial troubles. Filing bankruptcy can provide the relief you need. But what’s the difference between Chapter 7 vs Chapter 13? Which should you file, and what are the pros and cons of each type of bankruptcy?

At Burke Smith Law, we can give you answers and help you understand your legal options. Call us today at (402) 718-8865 to start the process of regaining control of your finances and getting a fresh start.

What Is Chapter 7 Bankruptcy?

Chapter 7 bankruptcy allows you to discharge most of your debt. Often called “liquidation bankruptcy,” Chapter 7 allows consumers to completely eliminate most non-secured debt quickly and easily. Secured debt, such as car loans and home mortgages, may either be eliminated. Or, you can lower the payments if you choose to keep your property. Some debts, such as tax debt and unpaid child support, is not typically dischargeable through Chapter 7.

In order to file Chapter 7, you must qualify through a Means Test, which determines if your income is low enough to be eligible for Chapter 7. If your household income is too high, you may not be able to file Chapter 7. This is one major difference with Chapter 7 vs Chapter 13.

What Is Chapter 13 Bankruptcy?

Chapter 13 bankruptcy allows you to reorganize debts while keeping most of your property. You may combine all of your non-secured and secured debt payments into one manageable payment plan. The plan allows you to repay your debt over the course of three to five years. After five years, the remainder of most of your debt will be discharged if you have made sufficient payments over the time of your payment plan.

You do not have to qualify for Chapter 13 through an income-based test. Anyone can file Chapter 13, as long as they have not previously filed bankruptcy within a restricted time period. Determining which type of bankruptcy you qualify for is one of the most important considerations.

How Long Is the Process? Chapter 7 vs Chapter 13

Chapter 7 vs Chapter 13 vary greatly in the amount of time until discharge. Although both types of bankruptcy can help you manage debt, the length of time you will be involved in the bankruptcy process differs greatly. Both Chapter 7 and Chapter 13 require extensive legal documents, several hearings, and a meeting of creditors.

However, from start to finish, a Chapter 7 bankruptcy usually takes four to six months. A Chapter 13 bankruptcy, on the other hand, is not considered completed until the payment plan is complete, which can be up to five years. When considering filing Chapter 7 vs Chapter 13, you should have an understanding of how long your bankruptcy process will take.

Types of Debt You Can Eliminate Through Chapter 7 vs Chapter 13

All of your debt can be managed through bankruptcy; however, not all debt can be completely eliminated. For example, bankruptcy cannot completely eliminate tax debt, student loans, criminal conviction fines, and unpaid child support and alimony. However, it is possible to restructure payments and seek payment options through bankruptcy.

The way the bankruptcy court handles debt between Chapter 7 vs Chapter 13 is also very different. Chapter 7 will completely eliminate all of your eligible debts, including non-secured debt and consumer debt. It may eliminate secured debt, but you may have to forfeit, or liquidate, your property. Chapter 13, on the other hand, allows you to keep all of your property while developing payment plans for car loans, home mortgages, and other types of debt.

A Bankruptcy Lawyer Can Help You Decide Between Chapter 7 vs Chapter 13

If you’re dealing with a difficult financial situation, you may be considering bankruptcy. Our skilled attorneys can help you determine the benefits of Chapter 7 vs Chapter 13. Choosing the type of bankruptcy best suited to your situation will help you move forward with your life. Contact Burke Smith Law today at (402) 718-8865.