Timing a Bankruptcy Filing and the Filing of a Personal Injury or Wrongful Death Claim

I was hurt in a wreck with a tractor-trailer six months ago.  I lost my job and my medical bills are enormous.  I am behind on my mortgage and have been unable to make my car payments. Should I file bankruptcy, get my financial house in order, and then file a lawsuit against the trucking company?    I want to be able to get rid of all this debt and be able to keep whatever money I recover in the lawsuit to meet my needs for the rest of my life.

There is a major problem with your plan.  When you file for bankruptcy you are asked to answer questions under oath about your assets and liabilities.  One of the questions you will be asked is whether you have any claims against another person or entity.  Thus, you will have to tell the Bankruptcy Court that you have a claim pending against the trucking company.  This is true even though you have not filed a lawsuit – you still are considered to have a claim pending that must be disclosed to the Court.

When you tell the Bankruptcy Court that you have a claim pending that fact will be taken into account in determining whether you are a candidate for bankruptcy and what amount should be paid to your creditors.  As I explained in a prior post, you will also lose significant control over the progression of your case.

You may think that you could avoid this mess by simply not disclosing the claim on your Bankruptcy Court petition.  This would be a serious mistake.  Not only could you be charged with a crime for not disclosing the claim,  but it is possible that you could lose your right to assert the claim against the trucking company.

So what should you do?    Hire an experienced personal injury lawyer to help you determine if your claim against the trucking company has merit.  Then, let the personal injury lawyer find you an experienced bankruptcy lawyer who can help determine if you are an appropriate candidate for bankruptcy and, if so, what type of bankruptcy.   The coordination of efforts of these two professionals will reduce the likelihood that your situation will become worse than it already is.

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