Skip to main content

My husband and I filed a chapter 7 bankruptcy and had it written off in 2013.

Winchester, CA |

I failed to mark a box indicating I had a personal injury lawsuit pending and has been pending for over 5 years. I'm permanently disabled and on Social Security Disability since 1985. It was truly done by mistake. During my deposition it was brought to my attention. I was shocked I am on a lot of pain medication and do not think clearly or understand things clearly. What can be done to correct this.

+ Read More

Attorney answers 13


More info needed. Assuming you have a lawyer, talk to him/her. What kind of proceeding are you involved in? Is this error part of the bankruptcy proceeding?


I would consult with your original bankruptcy attorney.

In seeking an attorney on this site, beware of limiting your search to attorneys with a 10 rating, and carefully read the AVVO disclaimer regarding their rating system. There are certain factors that are given great weight which do not necessarily have any bearing on an attorney's experience, abilities, and results with certain types of cases. Accordingly, the rating numbers can be misleading. Also beware of basing your choice on the fee charged, as a low fee, depending on the skill, experience and determination of the specific attorney handling your case, could actually have an inverse relationship to the amount actually put in your pocket.


Contact your BK lawyer to reopen the case and amend schedules.


You need to employ an attorney to reopen your case, the easiest of which would be your original attorney if you had one. You can file a motion to reopen the case , pay the reopening fee (check with court the may be $185..but not at my law firm now), and then you file Amended Schedule B and C for exemptions, exempting out as much as you can. I would then Definitely list the problems of your situation as far as memory and pain medication etc..if so at the time of filing your bankruptcy in those schedules so the trustee knows. As of now, you have NO rights to litigate that lawsuit..The other side can have it dismissed forthwith. Your trustee will have the right to pursue the claim, but whether the trustee does depends on the value of your case and the exemptions of such value. The trustee will want to know the name and address and ph # and claim number possibly of the lawsuit on who represents you and the defendant so you might list them also in your filing or send a letter to the trustee also ahead of time explaining your case. The attorney you speak to will advise you on what must be done as the court will have to reemploy or appoint the trustee or another one in case they no longer practice. Good look on this. I hope my answer assists you and you come out ok on this matter!


You should bring this to the attention of your bankruptcy attorney.

The information presented on this site is not intended as legal advice. Neither receipt of information presented on this site nor any question, answer, message or other electronic communication sent to Jame P. Mascaro or The Mascaro Law Firm, PC through this site will create an attorney-client relationship, and no such question, answer, message or other electronic communication will be treated as confidential. No user of this site should act or refrain from acting on the basis of information on this site without seeking legal advice from his or her own counsel in the relevant jurisdiction. Jame P. Mascaro and The Mascaro Law Firm, PC expressly disclaim liability with respect to actions taken or not taken based on the contents of this site, or any question, answer, message or other electronic communication exchanged on this site.


There is a bit more to this than failing to "mark a box". Your Statement of Financial Affairs clearly asks you to describe all pending litigation and to provide the case number, caption of the matter and disposition. If a creditor reported the pending litigation to the trustee, the trustee has a duty to ask you about it at your 341a "deposition". You sign your petition and schedules under penalty of perjury that you have disclosed all debts and assets. A personal injury case is an asset or "potential" asset. If you had the assistance of a lawyer in your BK the lawyer should go over your petition, item by item. If you did not have a lawyer assist you, better get one now. Good luck.

You are not my client and I am not your attorney. This advice is given in the spirit of the AVVO platform and is based on general legal principles. You become a client when you enter into a formal retainer agreement with me.


Once you filed the bankruptcy petition, the lawsuit for injuries became property of the bankruptcy estate. It remains the property of the bankruptcy estate unless and until it reverts back to because of a specific exemption or other reason (such as the trustee waiving the right to the asset because it lacks sufficient value to make prosecuting worthwhile). If the chapter 7 trustee sees the suit as an asset which can be used to pay some of your creditors, then the trustee will assume control of the action and either keep your current attorney on the case or hire his own. If the trustee does not think it is worth pursuing as a means of paying creditors, then the trustee can waive the bankruptcy estate's right to the lawsuit. You should speak to your bankruptcy attorney about this.

This answer to this questions is for general purposes only and does not establish an attorney-client relationship. You should contact an attorney right away to further examine the issues in your case.


Sounds like an honest mistake. Best thing you can do at this point is to contact your former atty or a new one of you can't reach him and reopen the case. Depending on what exemptions you have left and if the trustee may let you use them and how much debt was discharged, the amount of any award or settlement in the future will go to trustee first to distribute to any potential creditors and what's left, if any will go to you hopefully,

My answers are not to be taken as legal advice. They are for informational purposes only and based on the limited information that is put forth by the Asker. Moreover, no attorney-client relationship is formed. Should you need legal advice, I suggest consulting a local attorney either by phone or in person.


One of the questions I make a habit of asking any civil litigation client (whether drug or medical device case, medical malpractice, or personal injury... though it pretty much applies to all civil cases) is whether the potential client has filed bankruptcy ("BK") and if so when and what chapter... if filed after the date of the injury (or claim date as the case may be), I see a potential problem as that suit becomes part of the bankruptcy estate... if someone were to fail to have listed such a case on a later filed BK, the bad news is that the BK schedules need to be amended... the possible good news is that depending on the type of suit... the amount at issue... and exactly what the recovery would be for (wages versus medical bills... versus pain and suffering... etc.) will affect whether the trust will try to grab the potential recovery... complex stuff to say the least... so if one filed BK and omitted to schedule a civil litigation case... one should immediately inform his or her BK attorney for actual legal advice and help.

- Paul

Paul J. Molinaro, M.D., J.D.
Attorney at Law, Physician

* This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy. ** Fransen & Molinaro, LLP practices in the areas of defective drug and medical device litigation (Actos, Accutane, Actonel, Antidepressants, Avandia, Bextra, Byetta, DePuy Hip Implant, Digitek, Ephedra, Fosamax, Gadolinium, GranuFlo, Guidant Implantable Defibrillators, Hormone Replacement Therapy (HRT), Ketek, Kugel Mesh Patch, Lipitor, Mesothelioma, Nuvaring, Ortho Evra, Paxil, Pradaxa, Prempro, Prisma Dialysis Recall, Reglan, ReNu with MoistureLoc, Smith and Nephew Hip Replacement, Stryker Hip Replacement, Tequin, Topamax, Transvaginal Mesh, Trasylol, Vioxx, Yaz, Zelnorm, Zimmer Durom, Zyprexa, and More), medical malpractice, personal injury, and real estate law and does so anywhere in the State of California. *** If you enjoy my posts, enjoyed a consultation with me, or are a happy satisfied client, please give me an Avvo recommendation/review.


Best way to correct this is to inform your bankruptcy attorney.


In large part, it depends on the current status of proceedings, e/g/. is the Trustee coming after you claiming you have committed fraud. You may have to re-open your Bankrutpcy to file amended schedules. Of course, you will have to have a doctor's report verifying your explanation. Didn't you tell your bankruptcy lawyer about the personal injury action? Didn't the Trustee ask about that? They always ask everyone wher I practice. Have you discussed this with your former Bankruptcy lawyer? Don't tell me that you did the bankruptcy without one, that's how problems like this come up.


It won't matter if you recover nothing.


You should contact your previous bankruptcy attorney and of course explain the situation to your current attorney.

Bankruptcy and debt topics

Recommended articles about Bankruptcy and debt

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer