What Disqualifies You From Filing Bankruptcy in New York?

Bankruptcy has two kinds of obstacle, and confusing them causes needless fear. One stops you from filing at all; the other lets you file but limits what you get. Only a few things fall in the first category.

• A recent dismissal for ignoring the court. Under 11 U.S.C. § 109(g), no individual may be a debtor who was in a case dismissed within the preceding 180 days for willful failure to abide by orders of the court, or to appear before the court.
• Dismissing your own case after a lender asked for stay relief. The same statute bars you for 180 days if you requested and obtained a voluntary dismissal following the filing of a request for relief from the automatic stay. It is a six-month lockout.
• No credit counseling. Section 109(h) requires a briefing from an approved nonprofit budget and credit counseling agency during the 180 days ending on the filing date. Narrow exceptions cover exigent circumstances, incapacity, disability, and active military duty in a combat zone.

Chapter 13 has one more gate. Section 109(e) limits it to an individual with regular income whose unsecured debts are under $526,700 and secured debts under $1,580,125, the amounts effective April 1, 2025. Mortgage debt counts toward the secured figure, worth checking at Nassau, Suffolk and Brooklyn price levels. These figures adjust on a fixed cycle, so confirm the amounts in effect on your filing date.

The means test is treated online as a wall. It is not one, and it does not apply to the chapter that saves houses. Section 707(b)(1) lets a court dismiss a case filed by an individual whose debts are primarily consumer debts if granting relief would be an abuse. It is an abuse screen, not an eligibility rule.

If your annualized current monthly income is at or below the applicable New York median family income, §§ 707(b)(6) and (b)(7) mean no creditor may bring a means-test motion at all. For cases filed on or after April 1, 2026, the New York median family income figures are $73,272 for one earner, $92,902 for two, $115,579 for three and $139,040 for four, plus $11,100 per additional person. They are revised periodically, so what governs is the figure in effect on your filing date.

Being above median does not disqualify you either. Allowed expenses come out first, before any presumption of abuse arises under § 707(b)(2).

What matters most to a homeowner: the means test does not gate Chapter 13. There, median income sets plan length and the disposable-income commitment under §§ 1322(d) and 1325(b). Failing it usually routes you toward the chapter that can cure mortgage arrears, rather than out of bankruptcy altogether.

Waiting periods after a previous bankruptcy are the most-searched disqualifier, and almost always described wrong. They bar the discharge, not the filing. All four clocks run from filing date to filing date, not from the date the old discharge was entered.

• Chapter 7 after Chapter 7 — eight years (§ 727(a)(8)).
• Chapter 7 after Chapter 12 or 13 — six years (§ 727(a)(9)), unless plan payments totaled 100 percent of allowed unsecured claims, or 70 percent under a plan proposed in good faith that was the debtor's best effort.
• Chapter 13 after Chapter 7, 11 or 12 — four years (§ 1328(f)(1)).
• Chapter 13 after Chapter 13 — two years (§ 1328(f)(2)).

Read the language carefully. Section 1328(f) says no discharge shall be granted. It does not say you may not file. Whether such a case still helps your house is a question for a bankruptcy attorney.

This is where "disqualified" is closest to true, not because a clerk refuses the petition, but because the filing stops doing what you needed it to do.

• One dismissal in the past year. Under § 362(c)(3) the automatic stay terminates on the 30th day after the later case is filed, unless the court extends it on a showing that the case was filed in good faith.
• Two or more dismissals in the past year. Under § 362(c)(4) the stay does not go into effect at all. Filing changes nothing unless you move separately and win an order imposing it.
• A filing found to be part of a scheme. Section 362(d)(4) allows an in rem order where the filing was part of a scheme to delay, hinder or defraud creditors involving the property. That order binds any case filed within two years.

There is a local wrinkle for Nassau, Suffolk, Brooklyn and Queens homeowners, whose cases are heard in the Eastern District of New York. Courts are split over whether that 30-day termination reaches the house itself or only the debtor personally. In In re Bender (Bankr. E.D.N.Y. 2016), the court held the stay terminates as to proceedings commenced before the filing, with the focus on the property as collateral regardless of estate status. A pending New York foreclosure action is exactly such a proceeding.

Not a legal disqualification, but the wall many people hit.

The total court filing fee is currently $338 for Chapter 7 and $313 for Chapter 13. Both chapters allow installments under Bankruptcy Rule 1006(b), no more than four, all within 120 days after filing.

A full waiver exists only in Chapter 7, under 28 U.S.C. § 1930(f), and only where household income is less than 150 percent of the official poverty line for your household size and you are unable to pay in installments. There is no Chapter 13 fee waiver, precisely the chapter a homeowner in foreclosure needs. Rule 1006(b) also bars any further payment to your attorney until the filing fee is paid in full.

Filing without an attorney is legal, but the outcome data is worth knowing. In an analysis of Federal Judicial Center and Administrative Office data covering 123,185 Chapter 13 cases closed over seven fiscal years, about 2.3 percent of cases filed without a lawyer ended in a completed plan, against about 41.5 percent of cases filed with one.

This matters more than the eligibility question. New York is a judicial foreclosure state. There is no power-of-sale shortcut: the lender must sue you in the Supreme Court for the county where the property sits and obtain a judgment before any auction. Each stage carries requirements the lender has to satisfy.

• Before suit, the servicer must send the RPAPL 1304 ninety-day notice in at least 14-point type, listing at least five housing counseling agencies serving your county and the Attorney General's hotline, 1-855-HOME-456. Strict compliance is a condition precedent; failure results in dismissal of the complaint.
• The summons and complaint must carry the RPAPL 1303 notice on its own page, on differently colored paper, plus an attorney's certificate of merit under CPLR 3012-b.
• Under CPLR 3408 the court must hold a settlement conference within sixty days after proof of service is filed. Both sides must negotiate in good faith and appear with authority to settle.
• Missing the answer deadline is not automatically the end. CPLR 3408(m) lets a defendant who appears at that conference file an answer within thirty days of the first appearance, with a presumed reasonable excuse and no substantive defenses waived.

Under 12 C.F.R. § 1024.41(g), a complete loss mitigation application submitted more than 37 days before a scheduled sale bars the servicer from moving for judgment or an order of sale, or conducting the sale, until it has evaluated you and the appeal window has run.

This office does not file bankruptcy petitions. If Chapter 13 is genuinely the right tool, speak with a bankruptcy attorney, well before any scheduled auction. This firm handles the other half: defending the foreclosure case at every appearance, and negotiating with the lender for a loan modification, repayment plan, lien settlement or short sale. Being ineligible to file bankruptcy does not mean you are out of options. It usually means they live inside the foreclosure case. This page is general information, not advice about your situation. Consultations are free — call 516-719-4144 or reach the office through the contact page.

Can I file bankruptcy if I filed before?

Usually yes. Prior-bankruptcy waiting periods bar the discharge, not the filing, and they run from filing date to filing date. Chapter 7 after Chapter 7 is eight years; Chapter 7 after Chapter 12 or 13 is six, with exceptions where the plan paid 70 or 100 percent of unsecured claims; Chapter 13 after Chapter 7 is four years; Chapter 13 after Chapter 13 is two.

Does earning too much disqualify me from bankruptcy?

No. The means test under Section 707(b) is an abuse screen for Chapter 7 cases involving primarily consumer debts, not an eligibility rule, and it does not apply to Chapter 13 at all. If your annualized income is at or below the New York median family income, no creditor may bring a means-test motion. Above-median filers subtract allowed expenses before any presumption of abuse arises.

What happens if I never took the credit counseling course?

Section 109(h) requires a briefing from an approved nonprofit credit counseling agency during the 180 days ending on your filing date. Without it, you generally cannot be a debtor. Narrow exceptions exist for exigent circumstances, which allow a temporary waiver of 30 days, extendable to 45, and for incapacity, disability or active military duty in a combat zone. Do not count on an exception.

If I file again, will it stop a Nassau or Suffolk auction?

Not reliably. If one prior case was dismissed in the past year, Section 362(c)(3) terminates the automatic stay on the 30th day unless the court extends it. If two or more were dismissed, Section 362(c)(4) means the stay never takes effect. A Section 362(d)(4) order can block stay protection for the property in any case filed for two years.

If I cannot file bankruptcy, can I still save my home in New York?

Often there is still room to work, though outcomes depend on the facts of your case. New York foreclosures run through the courts, so the lender must establish compliance with the RPAPL 1304 and 1303 notices, appear at a CPLR 3408 settlement conference and negotiate in good faith. Loan modifications, repayment plans, lien settlements and short sales are negotiated inside that case, and Regulation X limits how a servicer may proceed while a complete application is pending. This office defends the foreclosure case; it does not file bankruptcy petitions.