Is it too late for me to file if I have been sued or if foreclosure or repossession has started?
Because I will file your Chapter 7 or Chapter 13 case electronically from my office, my staff and I are fully prepared to deal with your emergency situation.
Chapter 13 Will Stop Foreclosure in Georgia
Georgia home foreclosures - if you are considering a Chapter 13 filing to stop a home foreclosure in Georgia, you probably already know that foreclosures in Georgia happen only on the first Tuesday of every month. Although I am not always prepared to accept a last minute “stop foreclosure” case, I have in the past filed cases electronically literally minutes before the foreclosure sale.
Prior to October 17, 2005, the bankruptcy law provided that the instant a case was filed, the “automatic stay” went into place stopping all creditor action immediately, whether or not the creditor was aware of the filing. Thus, a case filed at 11:17am on foreclosure day, could legally stop a foreclosure that is called at 11:19am.
Under the new law, there are now limits to this automatic foreclosure protection.
New Bankruptcy Law Limits Automatic Stay in Second and Third Filings
One of the most hard line elements of the 2005 changes to the bankruptcy laws related to the rules having to do with repeat filings. Designed to stop so called “serial filers” - those people who file repeated bankruptcy cases to live in a house for free while filing multiple cases, the new law will likely cause hardship to honest but unlucky debtors as well.
Under the new law, if you file a second Chapter 13 within one year of a prior dismissal, the automatic stay will terminate 30 days after filing the new case unless you and your lawyer go to court and persuade a Judge to “reimpose” the stay. For third or more filings, the automatic stay does not go into effect at all when the new case is filed and the only way you can get automatic stay protection is to ask a Judge to impose the stay.
While this new automatic stay provision will undoubtedly stop some serial filers, it will also cause hardship to unfortunate debtors whose case may have been dismissed because of no fault of their own - perhaps by an employer’s failure to remit payroll deducted payments or due to an unexpected illness.
Further, experienced lawyers will be reluctant to accept second or third cases because of the extra work and time involved.
The bottom line here: if you have reason to file a second Chapter 13 case within a year from the dismissal of your previous case, don’t wait until the last minute to seek legal representation.
Note that the new automatic stay rules are not the same as the new rules that control your eligibility for filing a second or third case. I summarize those rules on my Atlanta bankruptcy blog.
Chapter 13 Will Stop Car Repossession in Georgia
Similarly, if you are facing an imminent vehicle repossession, your filing of a Chapter 7 or Chapter 13 will legally stop the repossession process. If the repo agent and/or car lender chooses to ignore your verbal notice about filing, the lender/agent could be sued for money damages and they will be required to return your vehicle to you.
Even if your car has already been repossessed, I can often get it back for you by filing a Chapter 13. Here, too, it is not wise to wait too long after repossession as your right to recover your vehicle can expire.
Debtors who are filing a second or third case will find that it is much more difficult to use the bankruptcy laws to stop or reverse a repossession.
Chapter 7 or Chapter 13 Will Stop Pending Lawsuits
Your filing of either a Chapter 7 or a Chapter 13 bankruptcy will create a “stay” or suspension of any pending lawsuit that has been filed against you - even if the lawsuit was filed in another state. Any judgment obtained against you while the automatic stay is in force can be reversed. If a judgment has been rendered against you, the filing of a bankruptcy will stop all collection activities. I recommend that you obtain copies of your credit reports so that we can identify any pending lawsuits - I will then file a special pleading called a “suggestion of bankruptcy” in the state court.
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