Expert: Mark J. Markus- California Bankruptcy Attorney - 8/19/2008

Question
My attorney through some miscommunication did not explain that under the new law I could not get a dishcharge on a chapt 13 if I had a discharge in a chapt 7 less than four years ago. Needless to say he filed my 13 just two weeks shy of being four years. The trustee filed an objection to confirmation of the plan for that reason and asked the trustee to deny confirmation of the proposed plan.  My attorney then told me that I should send him something stating that I wanted him to dismiss my Chapt 13, which I did, he was afraid that the mortgage company would file for relief or whatever and I since decided to surrender the house anyway.  My question is, is it considered a voluntary dismissal since it never went to confirmation and now I have to wait another 180 days to refile? And does the automatic stay go for all debtors that are trying to collect?  What good is doing a chapt 13 if you're making plan payments and they can still garnish etc....?? I'm in Missouri by the way.

Answer
If you dismiss it, it will be a voluntary dismissal.  There probably will not be a 180-day bar on refiling, but that's up to the judge in your case.  You will only have the benefit of the automatic stay for 30 days in your next-filed case, unless you timely file a motion obtaining a continuance of the stay.  This is not guaranteed to be granted.  You need to find an attorney who understands the rules.