by Adam Mack
I often consult with people who are exploring bankruptcy because they have been injured due to the negligence of another person and as a result are looking at filing bankruptcy because they cannot pay for the medical expenses that resulted from the harm they received. If this is the situation you have found yourself in, DO NOT FILE until you consult with both a Kansas bankruptcy lawyer and a personal injury attorney. This is because (as discussed elsewhere) everything you have is either exempt or not exempt. To put it simply, if your property is exempt you get to keep it. If it is not exempt, then you do not get to keep it, you will have to surrender that asset to the trustee to administer as part of the bankruptcy estate.
So where does a personal injury claim come into all of this? Your assets are not just your tangible things. An asset can be anything you have a legal interest in. This includes legal claims you have against another person, such as a personal injury claim. If you file bankruptcy, your legal interest in the claim becomes part of the bankruptcy estate. The trustee will then have the ability to bring the claim against the negligent party rather than you. And rather than you getting the money if/when it is awarded by the court, the money will go to the bankruptcy estate and will be distributed to the creditors to offset their losses in having they payment claims discharged by the bankruptcy.
So is it still worth filing if there is a personal injury claim? Maybe. Whether or not you should file bankruptcy and thereby lose your legal claim will depend on a several factors, including, but not limited to, the strength of the personal injury claim, the amount you would likely recover if you won, the amount of the legal bills in contrast with the likely recovery, and other financial obligations that may be resolved through a bankruptcy discharge.
It is also worth noting that in every personal injury matter there is a statute of limitations that is ticking away from the moment of the injury (or discovery of the injury in some cases). As such, seeking legal counsel in a timely manner is absolutely critical to properly protect your legal interests.
If you are trying to weigh your options between filing bankruptcy and pursuing a personal injury case, you are dealing with a complicated legal analysis that requires the experience and knowledge that an attorney can provide. Do not face these obstacles alone, seek out qualified legal counsel before making any legal decisions.
These articles are for general informational use and do not constitute legal advice. Since laws change over time, it’s possible some articles are out of date and for that reason, we make no representation that the articles are fully accurate. For actual, up-to-date legal advice (including a free consultation), please contact us!