Expert: Terry Leeders - 8/13/2008

Question
A few months ago I paid an attorney 1600.00 to file a Chapter 13.  I listed all my debts and also told him of a discharged Chapt 7 I had received in 04.  The case was filed on August 3, 2004 and discharged in November 04. I paid him the rest of his fee in July..We sat down and discussed my debts put the finishing touches on all the details.  He filed my case a few days later on or about July 13, 2004.  I received letters from the trustee of my payment date and I made first payment to trustee.  I attended the creditors meeting on August 6.  I received a letter from the Trustee on August 8 requesting the court deny confirmation of my plan due the fact that my previous bankruptcy was filed on August 3, 2008.  My attorney told me that he told me that I wouldn't receive a discharge and he wondered why I wanted to file so quickly.  I told him that nowhere in our conversation did he inform me that I had to wait exactly 4 years from filing 7 to get a 13 discharge.  So now it's my word against his.  He advised me to file a dismissal.  Do I now have to wait 180 days to file again and how more difficult will it be to get confirmed after 180 days and I refile?  I'm just sick about this. Was a voluntary dismissal the best choice I had or were there other options?

Answer
You are only barred for 180 days if the court orders such, or if you voluntarily dismiss the case after the automatic stay has been modified or lifted.  You may just want the trustee to dismiss the case after confirmation is denied, then file again when the time comes up.  Now, because you will have a 2nd case within a year, your next automatic stay will only last 30 days, so you will need to bring a motion in court to extend that...by showing a positive change in circumstances.