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Here's one ya don't see everyday. Thinking caps, please!

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  • Here's one ya don't see everyday. Thinking caps, please!

    On another thread I posted that the Trustee's attorney informed me that she is withdrawing her objection to spousal support and qualified retirement plans...as well she should .

    But another issue has come up. I had a countersuit against my HOA who broke the covenants and cost me a lot of money, damage to my property, and personal injury. The lawyer for the HOA realized she screwed up, but then tried to 'settle' with the Trustee. Yep, it appears that this is entirely legal: the trustee gets the money and I get the shaft. I learned that I had not listed the lawsuit in schedules B and C, so I decided that I'd better. The Trustee's attorney said she agreed that the personal injury part of my counterclaim was exempt but taht she would probably fight the part that I claimed exempt for the property damage. So here's where I need some creative thinking as HMM is wont to say!

    The Trustee abandoned my home and land. The property damage is to my land. So if the property is no longer part of my estate, then should the trustee be able to settle a lawsuit (pending) in re recompense to damage of that property?

    I claimed exemption for the damage done to my meadow caused by the HOA refusing to obey the covenants protecting same. I grazed horses on that meadow for pay, but had to stop (lose my income) when the meadow was damaged by lack of care. The HOA actions also ruined my irrigation pump and the HOA cut down trees. All of this reduced the value of my home.

    If anyone has any ideas as to claims for exemption , please let me know. I'm particularly interested in the TRustee settling a lawsuit re damage to abandoned property that is no longer part of the estate. Thanks!

  • #2
    Sorry, you are probably on the losing side of this issue. The lawsuit is a separate asset as is the award of damages. Trustees get to take over any lawsuit for which the debtor is the plaintiff (barring an objection).

    The real question is what sort of "damage" are we talking about, and is it something you "still" need to pay to fix, or has the problem already been fixed. If the award of damages is to compensate for actual damage to exempt assets, I suppose you could argue that the funds from the lawsuit are exempt in so far as the damage caused by the HOA diminished the value of property that is exempt and therefore would be used to fix the problem, and are thereby exempt.

    But, it is a stretch...but no harm in trying assuming the money is actually worth pursuing.

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    • #3
      Thanks HHM. I was the Defendant in the lawsuit with the HOA...but their claims were pretty much thrown out by the state court judge. I countersued after they filed because their suit rather disgusted me and I had a legitimate beef but never would have brought suit on my own re the expense and because I'm not litiginous by nature. I"m afraid that in state court that I'll get only actual med bills from personal injury because I didn't bring a specific 'PI' claim; the damage to my property went on for many years and literally ruined my pasture/meadow; but proving damages, especially loss of value in these economic times when everything fell in price might be difficult.

      Since I am not a plaintiff but instead a defendant, does this mean taht the Trustee has no jurisdiction? I can't see where there is enough money in all of this to make it worth tyhe Trustee's while. I last heard that the HOA offered $5k.
      I'm going to talk with the attorney (trustee's ) today to see if anything new has come up. Thanks for your help. Des responded by PM and offered much the same advice re 'trying it' to see if it would fly.

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      • #4
        Any sort of counter suit makes you a plaintiff for purposes of "your" claims, and those claims are assets of the BK estate.

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