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Pro Se concerns about adversarial proceeding

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  • Pro Se concerns about adversarial proceeding

    I am starting to get my paperwork together to file ch 7 pro se. I really only have one issue that gives me pause. I am at fault for an auto accident a year ago. The claim is still open because the other party claims that they are still receiving treatment. It was a low speed collision with them as the 4500 lb SUV and me in a compact car...and they were all smiles for the two hrs we there. They saw my policy limits in the paperwork and I think they are trying to get the most out of it. I get it and I don't really care as long as they can settle under the 100/300 policy limit. Regardless, I am naming them and the insurance company as creditors and checking the contingent box to be safe. If they have an attorney involved, they are likely going to file an objection to discharge. I would imagine my insurance company won't like it either. (I still use them to insure my vehicles). Where can I find a good resource for to learn about defenses for this to get my discharge? Is this something that I could reasonably tackle pro se?
    I was going to hit the library and look up similar cases.

    I did meet with a few attorneys. They all implied that if I started pro se and it everything blew up in my face with these proceedings that none would represent me if I came to them at that point. So I want to be prepared for the worst before I make the final decision and file.

  • #2
    I would never recommend defending an AP prose. And, from what I understand, it is true that you will have a hard time finding a lawyer to represent you in a case that you filed prose. The only way to really prepare for the worst in this context is to hire an attorney to file your BK.

    Your first resource for a defense is Section 523 of the bankruptcy code that lists exceptions to discharge, including debt:

    (a)(9) for death or personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance;
    Unless the other party is claiming you were intoxicated at the time of the accident, don't be so certain they will file an AP, especially if they are still within the limits of your insurance policy.

    It is hard to know how you will defend yourself until you see the complaint and know the basis for the assertion that the debt should not be discharged.

    I don't think it is correct to list the debt as contingent. The event that gives rise to the debt has already occurred. What is unknown or possibly in dispute is the value. The claim is either unliquidated or disputed.
    LadyInTheRed is in the black!
    Filed Chap 13 April 2010. Discharged May 2015.
    $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!


    • #3
      I agree with LITR that this is disputed or probably unliquidated.

      There are attorneys that will not touch a case that a Pro Se messed up. The reason is that many times, all the right defenses weren't originally pleaded and you lose that on appeal. Presenting the right case up front is what wins the battle. As for fighting this, I also agree with LITR that unless you are intoxicated this debt is likely dischargeable.

      I would just file but build a defense fund for an AP. Most attorneys will want $4-5,000 as a retainer to defend an AP. The attorney would be able to look at your liability case specifically and counsel you on whether it's better to fight or to settle. That is something you won't know until you actually see the lawsuit (AP). That's if an AP is even filed! Most attorney would defend your AP separately, but if you answer the AP (Complaint) yourself, you will find few attorneys that would jump in after that (because you may have made irreversible mistakes).
      Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
      Status: (Auto) Discharged and Closed! 5/10
      Visit My BKForum Blog: justbroke's Blog

      I am not an attorney. Any advice provided is not legal advice.


      • #4
        Lady is correct. Unless 523(a)(9) applies, the injured party is not filing an AP. What the injured party will do is seek the lifting of the automatic stay to proceed against the 3rd party insurance carrier. This happens all the time.

        The debt is not contingent. However, since the amount is not readily determinable it is "unliquidated" and the amount would typically be listed as "unknown".

        OP, was there any intoxication involved? Did you deliberately, with willful intent, cause the accident? If not, I am not sure why any bk attny would be worried about this.



        • #5
          I started typing a response earlier today and got timed out due to a distraction...or rather this was my distraction and I had to work. Something like that. My concerns are getting accused of something and not being able to defend myself. For example, I was a furloughed government employee and couldn't pay my bills that month and I conveniently wrecked my car and avoided bankruptcy for another year. I could see the opposing counsel pointing out that it was convenient and it saved my butt. I would never do it on purpose though and absolutely not to another driver. I'd never wreck my car with a full tank of gas leaving a gas station on purpose, it would definitely be empty. lol. Not to mention I've been hit hard twice by inattentive drivers and I know it hurts!
          Basically, I rear-ended someone on a poor visibility stop sign at the top of a hill for a T intersection where the lane we were both in continues straight. There is usually no one at the other part of the intersection because it is a parking lot for a low volume store. My foot was off the gas and I was slowing. I knew they were there, but for some reason I expected them to clear the lane and cross. I had glanced down at my odometer briefly (I had just gotten gas...checking that mpg) while slowing, planning to use the brake to stop at the line. Except when I glanced back it was too late and they were still there. Totally my fault and I still can't believe I ever did something so stupid. No cell phone, no alcohol, nothing...Just a quick glance down at a really bad time.

          Where this gets sticky is if they request medical records. I have documented sleep apnea and a few medications that carry a label of "use caution while operating machinery." I also have a flaw where I smile/laugh when inappropriate. So it could look really bad. I still take the meds and don't feel impaired at all. I've never even been drunk believe it or not. However, impaired 2 beers over 30 min can get a 250lb guy is the most I've ever had. Really, they could just ask for the limits and go away....most likely scenario. I'm just worried they could try to stick this to me like I was impaired and I wouldn't be able to get discharged until they settle. I have no assets and I'm below median income for family size, but I'd rather be safe than sorry.


          • #6
            I think you are worrying too much about something that will never happen.

            For a debt to be excepted from discharge, the creditor must prove there is valid cause to except it from discharge. The exceptions for discharge are listed in the link I posted above. Unless somebody took a blood test, how are they going to be able to prove you were under the influence of any medication? I have no idea what you mean by conveniently wrecking your car and how the fact that you delayed filing BK for a year would make any difference. If the debt is dischargeable, it was dischargeable the moment after the accident, no matter how long it took for the other party to determine the extent of their damages.

            Even if they did file an AP, it would not delay your entire discharge, only the discharge of the one debt.
            LadyInTheRed is in the black!
            Filed Chap 13 April 2010. Discharged May 2015.
            $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!


            • #7
              You are overthinking this. It is likely, as an attorney just suggested on this forum, that the other party may not file a claim, or, at worse, just ask for leave to pursue the insurance claim through your carrier.

              The other party is likely represented by an attorney and unless they know something that we don't know -- you're not telling us -- the debt is dischargeable.

              I highly suggest you just file with an attorney (the entire case) and then just have the attorney prepped in case this becomes a "personal" (non-dischargeable) issue for you.
              Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
              Status: (Auto) Discharged and Closed! 5/10
              Visit My BKForum Blog: justbroke's Blog

              I am not an attorney. Any advice provided is not legal advice.


              • #8
                I can see how paying an attorney 1200 bucks over a 6 month period is a good investment...if only for peace of mind that someone is there who knows what they are doing. I haven't decided how much personal time I am willing to invest in this yet. I definitely won't go pro se unless I am fully committed. I have another month or two until capital one collections goes super saiyan on if 4 calls a day wasn't annoying enough.


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