Personal injury claim as asset?

[rd8831rd]

In february 2004 my wife has been injured and broke her nose in a casino. A report has been filed with the casino security. She went through surgery and all the invoices have been followed to an attorney who never filed the claim.

We filed together in April 2005 and the 341 was held in May. The trustee asked for additionnal papers in regard of the cash value of my insurance policies.

This week we received a letter from the attorney in the injury case that because of his case load, he would not proceed further and he returned all documentation.

My wife called our bankruptcy attorney to know if they were also involved in injury cases and from there things started to go bad.

She has been told that no matter a claim has never been filed, the potential of a claim is an asset that the trustee has to be informed and we have been asked to sign an amendment divulging a "pending personal injury claim from an incident which occured........with medical billing totaling approx. $20,000"

We feel intimidated because we have been told of very big trouble if we don't sign this document and if we don't sign it, the attorney will inform the trustee anyway.

Where is the privilege of confidentiality beetween client and attorney? We feel betrayed by our attorney in our case and we wonder what are our rights.

Our case is about $250k and the injury could settle at around $700k. The attorney told us that if the trustee would proceed in this injury case and all the creditors would be paid, my wife would receive only $16,000 and the balance of the money would be split beetween the attorney and the trustee.

It seems to me plain robbery.

Any help or advise. We are from Nevada.

[mymymy]

Oye.. what on earth made your wife ask your BK attorney if he handled PI cases? I mean, yes.. she was trying to do the right thing.. but, surely- since you all never bothered to mention the pending suit when he filed your BK- you can understand why he's having a hissy fit. This is a very substantial amount of money and the pending lawsuit changes your case DRAMATICALLY. Did you out and out lie to him when he asked you if you had any lawsuits pending? It's a clear question on the BK petition. And most trustee's ask that Q at the 341. Nonetheless, even if the trustee didn't ask- it is asked, under penalty of perjury, in your schedules.

Pandora's box is opened now.

[rd8831rd]

There is no PENDING LAWSUIT and we never lie to the attorney nor the trustee. Nothing has never been filed. The above figures is what we think could have been possible if the case would have gone through and no work has ever been done by the PI attorney.

We have only provided medical invoices and that's all.

[mymymy]

There is no PENDING LAWSUIT and we never lie to the attorney nor the trustee. Nothing has never been filed. The above figures is what we think could have been possible if the case would have gone through and no work has ever been done by the PI attorney.

We have only provided medical invoices and that's all.

Excuse me.. I understood your post to say that another attorney, besides your BK attorney, had documentation in hand and was working on your behalf to prepare a PI suit before you filed. In other words, I read the post as "We filed for bankruptcy knowing that we have a case that is being worked on that could put a major portion of 700K in our pockets, so we'll just discharge this 250K and live on that later." I guess that's not what you meant.

No judgements here.. but.. that ain't gonna fly.

[rd8831rd]

The attorney never worked on the case and returned all our documents. He declined representing the case.

[ladylost]

I hate to be the bearer of bad news BUT you had an attorney that you were sending your medical bills to with the intent to sue therefore you had a case pending!

That attorney did in fact work on the case to make a decision to represent you or not. He returned the case to you so you can obtain another attorney due to case load.

You have 2 choices: either drop the case with no intent to sue in the future OR notify the trustee through your attorney that you made an error and will have this case pending upon finding another attorney.

Your wife was injured and is entitled to seek compensation... and should! However your creditors are entitled to monies, now and in the future out of any recovery of moneis you may have in the future because this happened

[mymymy]

Thank you, Lady. I didn't quite know how to get through to OP.. you've summarized beautifully.

[rd8831rd]

In my book a case is not a claim. It make sense that a claim has to be filed to be valid.

A claim is the action to demand monies for a settlement. If the process has never gone through, it's like nothing has ever happened.

[rd8831rd]

Following my above comment, I want to had that my understanding of the law is a case is not a case until it has been examined, formulated and filed in court. I believe that it is only at this stage that it could be considered "pending".

How could it be pending if no lawyer took it?

[mymymy]

I am going to try one last time to get through to you and then, I'm through, because quite frankly- it's people like you who have forced the hand of law-makers to enact this new reform that will ultimately harm honest and deserving debtors.

Your lawsuit or the expectation of the windfall from this lawsuit is an asset to your bankruptcy estate because there is proof that you were persuing it at the time of filing. You didn't find out that it was going to be delayed until after your 341, for crise sakes! When you saw your BK lawyer to file the petition- you KNEW that you had the suit in the works and chose not to tell him. When you had your 341, you KNEW that your other lawyer was preparing your suit and chose not to divulge it. There's a papertrail. Do you think that your former attorney is going to lie for you? Any which way you slice it, substantial abuse and/or fraud allegations are a part of your near future.

Frankly, if I were you, I would be extremely fearful that you will be turned over to the Justice Department for prosecution of fraud. Your lawyer knows this. You'd better sign those papers and count your blessings if the trustee has mercy on you and just takes the cash rather than persuing legal action.

[HHM]

Plain and simple, you have a "cause of action" that arose before you filed bankruptcy. The date of your cliam is the date of injury because on that date, that is when your right to recovery was created. You have what is known as an unliquidated claim, which means the exact amount of the recovery is unknown, but a claim against the person who is the defendant in the PI case arose on the date of injury, and the date of injury was before you filed BK.

To try and summurize
Claim (cause of action) is created on date of injury. A lawsuit is the mechanism to enforce or liquidate the claim to a dollar value. For bankruptcy, the assest is your "right" to bring a lawsuit on your "claim".

Lets think of this more simply, when you default on a credit card payment, the credit card company now has a right to sue you, that right was created on the date you defaulted. The right to sue to liquidated their claim is limited by the statute of limitations.

Bankruptcy requires you to disclose any and all assets, and this claim, whether liquidated or unliquidated. When you have a potential claim and file BK, the claim becomes the responsibility of the Trustee, infact, the trustee could hire an attorney to bring your personal injury case.

As to attorney-client priviledge only goes to far. An attorney cannot assist a client in committing a fraud (i.e. not disclosing a major PI claim in Bankruptcy).

[rd8831rd]

Thank you HNN for the clarification you brought to my questions in a courteous manner. It is sad to see that some people on this board are mean and have no sense of respect to others. They should share their anger on other sites.

For me and my wife, the meaning of a claim has never been the same as you have described above. It is the reason we never answered yes to our attorney about a claim because we always believed that the meaning was a demand of money for a settlement which has never occured.

If our BK attorney would have been competent and asked the questions properly, without rushing us urgently in this BK process, my wife would never have been part of the BK filling because her debt is very small compared to mine.

Now, is there a possibility she could transfer to CH 13 for herself?

[kaylee]

Personal injury claim

Hi all

Forum you have posting is very informative please keep it up posting.