Also keep in mind, if your personal injury lawsuit is still pending when you file for a Chapter 7 bankruptcy, a court-appointed trustee can take control of the case and settle it without your approval. If you file for a Chapter 13 bankruptcy, you may retain control of a pending personal injury lawsuit, but any non-exempt award is still subject to creditor claims. Hopefully, bankruptcy will not be an issue for either party when it comes to dealing with a personal injury lawsuit.
But, it is something you should be aware of if you are contemplating such a claim. An experienced New York personal injury attorney can advise you on this and other aspects of the legal process. Contact our office today if you would like to speak with an attorney right away. If the Defendant Files for Bankruptcy You often read headlines about plaintiffs winning multi-million dollar verdicts in personal injury cases. If a bankruptcy case is filed after the personal injury accident occurred, then a bankruptcy trustee in Chapter 7 now owns the claim and makes decisions on how to handle it.
Furthermore, all attorneys hired by the client post-bankruptcy filing require court approval to work on the case. In a Chapter 7 case, the bankruptcy trustee typically seeks employment for the bankruptcy estate, while in Chapter 13 bankruptcy the consumer through their bankruptcy attorney would need to seek to employ their personal injury attorney through the bankruptcy court.
Whether somebody can protect personal injury proceeds depends on the amount they can expect in a settlement and the value of their assets in general, which will determine how much they can exempt.
It also should be noted there are other bankruptcy exemptions other than the wildcard or personal injury exemptions to protect other assets.
Service : What if you filed a case shortly before the statute of limitations runs and need to serve a defendant who filed bankruptcy? The bankruptcy code extends the statute of limitations by the later of either 30 days from the expiration of the stay or the actual statute of limitations.
Discovery : You cannot proceed with discovery against a tortfeasor in bankruptcy without court permission. You must file a motion to lift stay. Trial : You cannot proceed with trial against a tortfeasor in bankruptcy without court permission. Wedgeworth v. Fibreboard Corp. Motion to Lift Stay : Grounds for lifting stay: 11 U. Good cause is not really defined under the statute, but here are some good reasons. In re Sonnax Indus. For a run of the mill clear liability, clear coverage injury case, using the grounds that there is insurance coverage will be sufficient to get the stay lifted.
However, where insurance coverage is partially based on a self-insured retention requiring the debtor-defendant company to pay the first layer of coverage, it is going to be difficult to lift the stay. Special rules apply where the defendant-debtor is a interstate motor carrier subject to the MCS endorsement; there, the stay may be lifted. Beyond insurance coverage: It is unlikely that you would be able to recover against the defendant for anything beyond insurance coverage because that would affect the bankruptcy estate.
What if I inadvertently violated the stay? You can file a motion to retroactively annul the stay. It will be similar to the motion to lift stay. Will the bankruptcy court try my case? Generally no subjection matter jurisdiction to liquidate personal injury tort or wrongful death claims. Proof of Claim: A proof of claim is a court document that a creditor files to show that the creditor has a claim against the debtor.
Proofs of claims are filed in Chapter 7 cases where there are assets to be liquidated and in all Chapter 13 cases. The deadline is 90 days from the date of the filing of petition. If you are able to lift the stay to collect insurance proceeds, then you should withdraw your proof of claim against the debtor.
You probably would not really want to file this adversary proceeding unless you could actually collect a judgment against the tortfeasor beyond the amount of insurance available. Dismissal means the case is gone, and the bankruptcy protection is gone. All of the assets of the bankruptcy estate are restored back to the debtor. Then, you can proceed normally against the defendant in your injury case. He is a critical thinker and determined problem solver.
Because Chapter 13 bankruptcy takes post-bankruptcy filing activities into consideration, though, compensation awarded for a post-filing injury during Chapter 13 proceedings must be disclosed to the bankruptcy trustee.
Bankruptcy trustees can and will check records after a bankruptcy case ends to see if a debtor filed a personal injury claim from a pre-bankruptcy injury. One factor that can make it more difficult to protect your personal injury claim is if you combine it with other funds.
Can the trustee get it back? The answer is that it depends. If you spent the claim money during normal everyday activities like grocery shopping, rent payment, car or insurance payment, or other living expenses, the trustee is unlikely to get the money back. If the claim money was spent suspiciously over a short period of time, transferred to a friend or family member, or used to pay certain preferred creditors, though, the trustee may be able to recover the claim money.
The best way to protect your claim is to consult an experienced and qualified attorney who understands the interaction between bankruptcy and personal injury claims so they can gather the details of your situation and advise you about your best path forward.
If you have been injured and are facing bankruptcy, contact the experienced attorneys at Crosley Law Firm at or fill out our convenient online form. We are strong and committed advocates for our clients, and we use all available resources to help them secure the compensation they need. Contact us today to schedule your free consultation with a qualified and experienced personal injury attorney from the Crosley team.
Code — Unannotated Title Find Law. Any large truck poses a level of danger on the roadways, and trucking accidents are more likely to be catastrophic or fatal than other auto accidents.
Cement mixers are uniquely hazardous because of their design and the material they carry. Add to that the 26, to 80, pounds big trucks weigh, longer than average stopping […]. In driving, as with baseball, the main goal is to get home safe. The difference between driving and sports, however, is that displays of aggression on the road can get you hurt—or even killed.
Almost all of us have seen aggressive driving by other drivers, or even road rage, at one point or another.
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