can someone listed in bk sue later

[bingomamma19]

I have a question-

my friend had to file bk because he was in a car accident with no health or car insurance-the hospital bill for himself was 50k and the damage to the other vehicle was about 12k-both had started to come after him and he ended up filing bk last year. he listed all possible debtors including the other guys insurance company and the other people listed in the accident-they had not yet filed a lawsuit for personal liability. The bk has been discharged, but not closed yet-now he is named in a lawsuit by the people and their insurance company for personal injury -can they do this? He did name them in the BK. What does he do now?

[emoney]

First, anyone can sue anyone else. The question is did the BK clear him of those legal obligations. The hospital bill if probably discharged, but depending on his fault level of the accident he may not be clear. Such as was he DUI?

He should contact his attorney to plan his moves and answer the lawsuit before the answer day or they can get a defualt judgment.
Regards,
emoney

[keepmine]

I'd agree with emoney. Were drugs or acholol or some other illegal activity involved?
He needs to call his bk lawyer.

[HHM]

Can they sue and name your friend in the law suit, yes. The real question is, will he ultimately be liable? Unfortunately, in order to determine whether the debt is dischargeable, the suit has to move forward, since, in order to determine the dischargeability of the debt, the court needs to determine the extent of your friends culpability. The other problem is, in most state's, driving without insurance is a misdemeanor, and if he is ordered to pay restitution in a criminal prosecution, that debt cannot be discharged in BK.

However, your friend should still file a Notice of BK with the court where the personal injury suit is pending...doing so will help narrow the issues for the court. The bad news is, your friend will still need to defend himself.

[bingomamma19]

no, there was no dui or drugs involved at all-just a failure to yeild the right of way at a stop sign. He never drinks or does drugs and he was the one the most hurt in the accident-he was taken to the hospital immediately for surgery-.

I guess I will tell him to file the bk notice with the court and hopefully all goes ok-he certainly does not need anymore bad news. He was hoping this was all behind him with the BK.

Any other insight on this?

[Spartan]

While your friend is at fault and will lose the lawsuit, the claim against him is most likely dischargeable, given that he wasn't intoxicated at the time of accident. The other party has uninsured driver coverage. They are covered. Their insurance company will just have to ante up. But your friend is morally guilty of this mess. Driving w/o insurance and failure to yield at STOP sign. sigh..... No excuse.

http://www.moranlaw.net/7discharge.htm

[bige1030]

IMHO, the suit for personal injury cannot proceed, since the discharge was entered. Such a debt is dischargeable, unless it was for "willful and malicious injury" - and such a complaint should have been filed within the time to determine dischargeability of particular debts. Your friend might be able to get the case dismissed and petition the bankruptcy court for sanctions against the creditors (the other people and their insurance company) for violating the discharge.

However, he can be criminally prosecuted for not having insurance. Restitution arising out of that is always nondischargeable.

[keepmine]

I'd urge him not to do this himself. He really needs to get his attorney involved.

[HHM]

What will most likely happen, is that once your friend files the Notice of BK, the other side will likely just drop the lawsuit because the debt is more than likely dischargeable. It's a rather simple process to file the Notice of BK, just take the cover page of your "filed" BK petition along with the notice of creditors down to the court house (where the personal injury suit is pending) and file it with the Court Clerk. Then you mail a copy to the attorney's for the other side. Honestly, that will probably be the last of it.

[bige1030]

Make sure the other side gets a copy of the discharge, too!

Definitely have him get his attorney involved. It's very dangerous for him, in terms of his rights, to be dealing with this himself (i.e. without expert legal advice). But of course, our lay advice might be good in the sense that he could ask his attorney good questions about things.