7 Common Mistakes When Refiling Chapter 7

Mistake #1: Counting from the Discharge Date Instead of the Filing Date

This is the single most common mistake. Section 727(a)(8) measures the 8-year period from filing date to filing date -- not from the date the prior discharge was entered. The prior discharge date is irrelevant.

In a typical Chapter 7 case, the discharge is entered 3 to 4 months after the case is filed. That means counting from the discharge date adds 3 to 4 unnecessary months to your wait. In some cases -- where there were delays, objections, or complications -- the gap between filing and discharge can be 6 months or more.

Even some attorneys make this mistake. Always verify the filing date of your prior case, not the discharge date. For a deeper explanation, see Filing Date to Filing Date.

Mistake #2: Not Checking If You Are Eligible for Chapter 13 Instead of Waiting

Many people assume they have to wait the full 8 years before they can get any bankruptcy relief. That is not true. Under Section 1328(f)(1), a debtor who received a Chapter 7 discharge can receive a Chapter 13 discharge after only 4 years from the prior Chapter 7 filing date.

This means if you are in the 4-to-8-year window, you may be eligible for Chapter 13 right now. Chapter 13 requires a regular income and involves a 3-to-5-year repayment plan, but it provides a discharge of most remaining unsecured debt at completion.

For more details, see Chapter 13 After Chapter 7.

Mistake #3: Filing One Day Too Early

The 8-year bar is a hard line. If your prior case was filed on March 15, 2018, the earliest you can file a new Chapter 7 and receive a discharge is March 15, 2026 -- not March 14, 2026. Filing even one day too early means the court will deny your discharge.

This is not a situation where the court delays your discharge until the 8 years have passed. The court denies it. You do not get a second chance within the same case. You would need to dismiss the case and refile after the 8-year date -- paying a second filing fee and potentially losing the protection of the automatic stay in the interim.

Use the date calculator to find your exact earliest eligible date. When in doubt, add a buffer of a few days.

Mistake #4: Thinking a Dismissed Case "Does Not Count"

This one is nuanced because a dismissed case truly does not trigger the 727(a)(8) discharge bar -- but it may trigger other problems that affect your ability to file.

Section 727(a)(8) only applies when a discharge was "granted" in the prior case. A dismissed case produces no discharge, so it does not start the 8-year clock. In that narrow sense, a dismissed case "does not count" for 727(a)(8) purposes.

However, a dismissed case can trigger the 180-day filing bar under Section 109(g). If your prior case was dismissed for willful failure to abide by court orders, or if you voluntarily dismissed it after a creditor sought relief from the automatic stay, you may be barred from filing any new bankruptcy case for 180 days.

Additionally, if you had a case dismissed within the past year, the automatic stay in your new case may be limited to 30 days under Section 362(c)(3), or may not take effect at all if you had two or more cases dismissed within the past year under Section 362(c)(4). For details on these limitations, see automaticstay.org.

Mistake #5: Not Understanding the 6-Year Exception for Chapter 13 Debtors

If your prior discharge was under Chapter 13 (not Chapter 7), the waiting period for a new Chapter 7 discharge is 6 years, not 8. And there are two exceptions that can eliminate the wait entirely.

Under Section 727(a)(9):

• If your prior Chapter 13 plan paid 100% of allowed unsecured claims, the 6-year bar does not apply at all
• If your prior plan paid at least 70% of allowed unsecured claims, was proposed in good faith, and represented your best effort, the 6-year bar does not apply

The mistake is assuming the 8-year rule applies to all prior bankruptcies. It does not. If your prior case was a Chapter 13, you may have a shorter wait -- or no wait at all.

Mistake #6: Accumulating New Debt While Waiting, Thinking It Will All Get Wiped

Some people learn they must wait 8 years and think: "I will just run up debt now and discharge it all when I refile." This is a dangerous strategy for several reasons.

Fraud risk

If a creditor can show that you incurred debt with no intention of repaying it, that specific debt may be declared nondischargeable under Section 523(a)(2). The creditor files an adversary proceeding, and if the court finds fraud or false pretenses, the debt survives your discharge.

Presumption of fraud for recent luxury purchases

Section 523(a)(2)(C) creates a presumption that certain recent debts are nondischargeable:

• Consumer debts over $800 for luxury goods or services incurred within 90 days before filing
• Cash advances over $1,100 within 70 days before filing

These thresholds are low. Running up credit cards right before filing is one of the fastest ways to have debt survive your discharge.

Bad faith dismissal

Under Section 707(b), the court can dismiss your case entirely if it was filed in bad faith. A pattern of running up debt with the known intention of filing bankruptcy can support a finding of bad faith.

Mistake #7: Not Consulting Your Prior Case Docket for the Exact Filing Date

Everything in Section 727(a)(8) hinges on the exact filing date of your prior case. Yet many people rely on memory, approximation, or informal records to determine this date. Memory is unreliable, and even small errors -- one month off, one day off -- can lead to filing too early or waiting too long.

Where to find your exact prior filing date

1. PACER (pacer.uscourts.gov) -- the federal court electronic records system. If you know your case number or can search by name, the docket will show the exact filing date. PACER charges $0.10 per page, capped at $3.00 per document.
2. The clerk's office of the bankruptcy court where you filed. Call them with your name and approximate filing year. They can look up the case and confirm the filing date.
3. Your prior attorney should have records of the filing date. Call their office even if you no longer have a relationship with them.
4. Your discharge order typically references the case number and filing date. If you kept a copy, check it.
5. RECAP / CourtListener (courtlistener.com/recap) -- a free archive of PACER documents. If your case was accessed through RECAP, the docket may be available for free.

Pre-Filing Checklist

Before filing a repeat Chapter 7, verify each of these items:

1. Confirm the exact filing date of your prior case using PACER, the court clerk, or your prior attorney
2. Calculate 8 full years from that filing date -- use the date calculator
3. Verify whether your prior case was Chapter 7, 11, 12, or 13 -- different chapters trigger different waiting periods
4. If your prior case was Chapter 13, check whether you qualify for the 6-year exception by reviewing the trustee's final report
5. Check whether Chapter 13 is available now -- if you are past the 4-year mark, Chapter 13 may work
6. Check for prior dismissals -- a dismissed case within the past year may limit your automatic stay
7. Review your new debts -- debts incurred fraudulently or within the 90-day/70-day windows may be nondischargeable
8. When in doubt, add buffer days -- file a few days after your calculated eligible date, not on it

Frequently Asked Questions