Only an experienced bankruptcy attorney in your area can answer this question for you. In the context of a Chapter 7, you'll want to know if the trustee could take some or all of your settlement or even take over the case. In a Chapter 13, you would need to know how much you would have to pay to keep the claim out of the hands of your creditors. These require knowledge of the value of your claim and the exemptions available to protect your property.
You can start by going to www.nacba.com and using their attorney search function to find someone that might be able to help you.
First, the firm is a debt relief agency according to the U.S. Bankruptcy Code. We help people file for bankruptcy. We also do other stuff and we do it well, but Congress wants me to post this notice. Second, nothing on this site is legal advice. You are not my client unless you enter into a written agreement signed by you and me.
There is no possible way to tell you whether to file Ch. 7 or 13, or even whether you qualify for either of them, based on your post. Call a couple Bankruptcy lawyers in your area and set up some appointments. Make sure your PI lawyer is aware of your plans.
You can file either so to speak. The question is what will happen if you file a Chapter 7. The trustee in a Chapter 7 liquidates assets and can take over the suit for the benefit of creditors. If the PI suit is worth a significant amount of money then it would generally be advisable to file 13. It is all a question of what the lawsuit is worth. You can only exempt up to $15K for the PI suits value. If it is worth over that the trustee would likely take anything over that to pay creditors. A 13 will have you pay the unexempt value of the suit to creditors.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Illinois. Responses are answers to general legal questions and the receiver of such question should consult a local attorney for specific answers to questions.
You can file any bankruptcy you chose but your personal injury case then becomes an asset of the bankruptcy filing and your attorney will need to be appointed by the bankruptcy court to continue representing you. Any potential settlement will need to be approved by the bankruptcy trustee.
If you feel this is the "best" answer or is "helpful," please indicate. Since I am limited to the information you provide, I cannot guarantee the accuracy of the answer. You should seek the advise of an attorney who can explore all aspects of your question. This communication does not form an attorney client relationship.
As others have said, so much depends on the outcome of the case that no one can give you a competent answer without more facts.
You need to speak with a bankruptcy attorney in your area and go over your options.
*** Please be advised that any advice provided on this website does not establish an attorney client relationship and that our firm does not represent you in any matters until retained through a signed retention agreement. *** We recommended that you meet with an experienced attorney to review your case should you have any further questions.
In Chapter 13 the Trustee has procedures established to determine plan modification increasing payments. Post confirmation plan modification increasing the dividend to unsecured creditors often occurs due to a personal injury recovery. The court will require the lawsuit proceeds, if recovered, to fund the Chapter 13 plan increasing the distribution to unsecured creditors. You will be entitled to an exemption allowing a portion of the lawsuit proceeds to be kept. The same is true in a Chapter 7. The Court wants the money to pay your creditors.
It is important to note, however, other than administrative costs, you will not pay any more than you owe. If you win $100,000 and only owe $20,000, after the court administrative costs are paid, you will get the remaining $80,000. (Administrative costs may be 10% or more).
Remember, the good news is you are out of debt,
As a side note, workman's compensation claims are often fully exempt and not subject to seizure by the court.