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.
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.
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.
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 J. Molinaro, M.D., J.D.
Attorney at Law, Physician
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,
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 fee..it 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!
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.
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