Can I file a new bankruptcy case while my old one is still open?

Also known as:

“Can I file a new bankruptcy case while my current case is pending, What happens if you have two open bankruptcy cases, and Can I file a chapter 13 case to stop a foreclosure while my chapter 7 case is still open?”  file a new case

No.  Or you could try, but you won’t find a bankruptcy attorney who will be willing to do it.

There is a 2005 bankruptcy case out of the 7th Circuit called In re Sidebottom, 430 F.3d 893 (7th Cir. 2005), which quotes an old Supreme Court case from 1925, Freshman v. Atkins, 269 U.S. 121 (1925).  The case points out that, first, there is a general per se prohibition against a debtor having more than one bankruptcy case open at any time.  (The only exception is if the second bankruptcy case deals with new debts that are not covered in the currently open case, but this is questionable and rare). Second, and even worse, the new case is most likely a bad faith bankruptcy filing, which could subject the attorney and the debtor to various sanctions from the bankruptcy court.

In other words, you can’t file a new case while your old case is still open, and you won’t be able to find an attorney to attempt it because of the per se rule and the very real bad faith filing implications.

I had a potential client meet with me at 8:30 in the evening because of a pending foreclosure sale the next morning.  As we were reviewing her options, she pointed out that her current chapter 7 case was still active.  I looked it up on PACER and found that not only was her chapter 7 still open, but that in that current case, the mortgage company had filed a Motion for Relief from Stay (“MFRS”), lifting bankruptcy protection from the home so that they could foreclose.

I advised her that I could not file a new case while the current case was open, and I warned her that attempting to do so would amount to filing the new case in bad faith.  I would not file a new case for her.

In the end, it worked out for her even though the foreclosure sale went through the next morning, because her liability on the mortgage obligation was already discharged in the chapter 7, and she didn’t want to save the home, she had just wanted to buy a couple more weeks to pack up and move out.