I've done a search on threads and have a question. We filed bk in July, 341 in August, STILL not confirmed because the stupid credit union is fighting our values on the cram down of our car loans. Anyway, in January we were in a car accident - dh had a knee injury and as been seeing a specialist and physical therapist and was off work for 2 weeks. He may still be facing surgery (therapy doesn't seem to be helping much at all). Anyway, I sent an email to my attorney asking the following:
exemptions list says Insurance / Annuities: Group life insurance policy or proceeds, unlimited amount [20-1132]; health, accident or disability benefits, unlimited amount [33-1126(A)(4) - wouldn't that indicate that any possible settlement from the accident
would be exempt? (here's the link and full text of what is listed)
His response is:
We have tried to use that exemption in the past with mixed results.
On the surface it would appear to cover accident proceeds. However, some judges have interpreted "health, accident or disability benefits" to mean long term monthly payments of benefits expected to continue for an extended time. We will surely argue it if that time comes. A lot will depend on if it is a large settlement and how aggressive the Trustee is in pursuing the claim.
As it is post-petition (after filing) we will need to evaluate it if and when any settlement is obtained to determine if we are even required to inform the Trustee.
Anyone have any insight as to what he means abou twhether we would even be required to inform the trustee. Obviously this would be my preference - I don't want to inform the trustee if we don't have to... I certainly am not going to spend my time and energy to aggressively fight the insurance company for a larger settlement if the trustee is going to take the whole thing anyway...
I noticed in the few threads that pulled up in my search, that a key may be whether it happened BEFORE we filed or after - and in our case the accident was AFTER our filing.
Also, anyone know if lienholders are automatically notified of car accidents (when the vehicle is NOT totaled)? The credit union that has our loan (and is fighting the cram down) is obviously the leinholder and based on our issues with them so far, my guess is they are going to be horrible to deal with if they are notified there was a settlement. BTW, the insurance repaired the vehicle inhouse so no worries about us getting a check for the repairs and not using the check to actually fix the vehicle...
Thanks for any wisdom you can offer!!!
exemptions list says Insurance / Annuities: Group life insurance policy or proceeds, unlimited amount [20-1132]; health, accident or disability benefits, unlimited amount [33-1126(A)(4) - wouldn't that indicate that any possible settlement from the accident
would be exempt? (here's the link and full text of what is listed)
His response is:
We have tried to use that exemption in the past with mixed results.
On the surface it would appear to cover accident proceeds. However, some judges have interpreted "health, accident or disability benefits" to mean long term monthly payments of benefits expected to continue for an extended time. We will surely argue it if that time comes. A lot will depend on if it is a large settlement and how aggressive the Trustee is in pursuing the claim.
As it is post-petition (after filing) we will need to evaluate it if and when any settlement is obtained to determine if we are even required to inform the Trustee.
Anyone have any insight as to what he means abou twhether we would even be required to inform the trustee. Obviously this would be my preference - I don't want to inform the trustee if we don't have to... I certainly am not going to spend my time and energy to aggressively fight the insurance company for a larger settlement if the trustee is going to take the whole thing anyway...
I noticed in the few threads that pulled up in my search, that a key may be whether it happened BEFORE we filed or after - and in our case the accident was AFTER our filing.
Also, anyone know if lienholders are automatically notified of car accidents (when the vehicle is NOT totaled)? The credit union that has our loan (and is fighting the cram down) is obviously the leinholder and based on our issues with them so far, my guess is they are going to be horrible to deal with if they are notified there was a settlement. BTW, the insurance repaired the vehicle inhouse so no worries about us getting a check for the repairs and not using the check to actually fix the vehicle...
Thanks for any wisdom you can offer!!!
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