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car accident and bk. pls read

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    #1

    car accident and bk. pls read

    i am really stressed out right now. i filed bk june 09 and it was discharged aug 09. i was involved in a minor auto accident about 5 yrs ago. i rear-ended a car at a busy intersection. i was on my cell phone (huge mistake) at the time. total property damages were $1500 between both cars. no one taken in the ambulance.

    finally was scheduled for my deposition 5 yrs ago last july. in was after my ch 7 filing period, prior to discharge. movant was listed as a creditor. they filed a petition: motion for relief from automatic stay so i could give my depo. it states under the order of the court section that the "movant may proceed to continue the action in the pa court of common pleas against the debtor with the understanding that said action will be limited to insurance coverage and will not seek monetary damages against the debtor"

    well i just rec'd a call from my attorney saying it's going to trial since she's looking for $100K (the max she can get from my insurance policy) which he claims is completely unrealistic and going after punitive damages. I am so upset right now. I asked my bk attorney when all this was going on if there was anyway she could come after me personally at some point in the future and he said no way.

    i live in pa. anyone have experience or knowledge on this. i have a call into my bk attorney but he's gone for the day. i swear i am more stressed by this than the whole bk process. i lost my house and just about everything and thought this nightmare was over. now i feel like i'm back in the middle of the storm. i have to take time off for jury selection and 3 days for the trial. also although i'm getting back on my feet, the only debt i have is my car pmt i have very little in the way of assets.

    any experience with this will be greatly appreciated :*(

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    #2
    ok so i just rec'd a call back from my bk attorney and he said i have nothing to worry about. he said they cannot come after me for punitive damages. my question is why did the plaintiff's attorney think they could? i'm hoping it was an oversight.

    i asked my bk attorney if there were any loopholes or ways around it where they could come after me personally and he said no.

    i hope this is true, i have no reason to think otherwise. he's a very well-respected attorney in our city.

    but any and all comments will be appreciated .

    Comment

      #3
      Remember it is part of the Plaintiff's attorney's job to intimidate you. Do you have the insurance company handling the case or a private attorney defending you?
      Filed CH 7 9/30/2008
      Discharged Jan 5, 2009! Closed Jan 18, 2009
      I am not an attorney. None of my advice is legal advice in any way..

      Comment

        #4
        it's an attorney through the insurance co but he is very good.

        Comment

          #5
          Others with more experience in this area will chime in hopefully, but could it be that the attorney for your insurance co doesn't remember you filed BK?
          Filed CH 7 9/30/2008
          Discharged Jan 5, 2009! Closed Jan 18, 2009
          I am not an attorney. None of my advice is legal advice in any way..

          Comment

            #6
            Here's what's going on: When you filed bk, the discharge that you got absolved you of any personal liability for the judgment. However, your insurance company's duty to indemnify was not affected by your bankruptcy. In most states, the procedural rules prohibit what is know as 'direct actions' against liability insurance companies. The plaintiff is required to sue the actual insured -- i.e. you. So the plaintiff here is limited to your insurance policy and cannot pursue you even if he gets a verdict in excess of your liability limits.
            Pay no attention to anything I post. I graduated last in my class from a fly-by-night law school that no longer exists; I never studied or went to class; and I only post on internet forums when I'm too drunk to crawl away from the computer.

            Comment

              #7
              thanks msbklawyer. my only concern now is on my list of creditors i listed the law firm representing her and she fired that attorney and hired another one. can that be a reason to allow her to come after me personally if the wrong name is on the list of creditos....it says the original attorney group representing the plantiff s name.

              i did not know she had a different attorney at that time

              Comment

                #8
                actually i just looked again at my schedule f and it shows my attorney listed as the creditor and ti says in the commens counsel for plaintiff in personal injury case with docket # and the plantiff's name

                Comment

                  #9
                  We had a pending lawsuit by a certain Enemy, and we listed him as Plaintiff, on our creditor matrix--not the attorney. That person filed an AP against our BK, but it never proceeded because the BK judge kicked it back to the state court, where nothing has happened, nor will it as the Plaintiff had a massive heart attack last year and while still alive, is not in good shape.

                  In your case, shouldn't the Statue of Limitations have run out, barring the stay while you were in BK? I am a little lost on your timeline....
                  "To go bravely forward is to invite a miracle."

                  "Worry is the darkroom where negatives are formed."

                  Comment

                    #10
                    they waited to sue me until the last possible time....almost 2 yrs to the day. i've been told the statue of limitations wouldn't apply here. UNFORTUNATELY!

                    I do trust my bk attorney, i'm just stressing right now because the sch f is incorrect and i never caught it before. i didn't realize this until i looked closely at my paperwork after i spoke to him. i don't know, clearly they were notified as i contacted my attorney (car acciddent) as soon as I was filing and they files for the relifr from automatic stay. i'm just a bundle of nerves right now. i have to go to jury selection (1/2 day) and the trial is expected to last 3 days and it's in 2 weeks.

                    Comment

                      #11
                      so here's an update on what's going on. i forwarded the motion of relief of stay that the court signed back in may. clearly states that the lady suing me had no interest in me personally and wanted to advance the lawsuit only to recover insurance money. so the relief of stay was permitted based on that assumption.

                      so now they try to backtrack? i don't think so! but my accident atty says their attorney is now saying they want to proceed with the punitive damages but not against me personally, but against what the insurance co. would pay.....which is $0! I ask does their atty not understand that they petitioned the bk court with the understanding they wouldn't come after me personally and they still try to do it. i am getting so mad just thinking about this whole thing. my atty said he was willing to go offer $30-40K to avoid a trial. they initially offerred 15K and got no response from her so it never got to that point.

                      the only thing is at least it will be over in a month. i may need to drink lots of vino between then and now to get thru this.

                      Comment

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