[CLBS] PI claim awarded after a Chapter 7 closed

[Rocky Wixom]

*T**hanks for the feedback everyone.  Brings up a new question.  If the
National Firm told them they had no case and my client relied upon that to
file bankruptcy doesn't the estate also have a claim for malpractice?  I
mean if he had pursued the claim I may well have been able to settle his
debts and keep him a substantial portion and avoid bankruptcy altogether?*
**


On Mon, Apr 8, 2013 at 3:04 PM, Ford Elsaesser <ford at ejame.com> wrote:

> Reopen case;schedule the claim;make a deal with trustee on split of
> eventual proceeds -or-the court prefers-claim the exemption and put the
> trustees objection to ex. On hold pending settlement-ford
>
> -----Original Message-----
> From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Aaron Tolson
> Sent: Monday, April 08, 2013 1:40 PM
> To: Rocky Wixom
> Cc: clbs
> Subject: Re: [CLBS] PI claim awarded after a Chapter 7 closed
>
> I have had a couple similar things and I think you have to reopen and
> administer.  I think the current state of the case law is that if you don't
> run it through bankruptcy, there is an absolute defense to the malpractice
> case (see recent case McAllister v. Dixon, 2013 Opinion 16 Idaho Supreme
> Court.)  I do malpractice panel hearings and that is coming up as a
> defense more than you might think.  So it might help you with your client to
> explain that they may not even get a recovery if they don't reopen.   It is
> a pretty easy thing to do that I can send you the forms if you need to I
> just did a case that is with Mr. Hopkins.
>
> On Mon, Apr 8, 2013 at 11:54 AM, Rocky Wixom <wixomlawoffice at gmail.com
> >wrote:
>
> > H
> > ere are the facts:
> >
> > Client sees a national law firm commercial and believes he may have a
> > personal injury claim for damages for taking a prescription drug.
> >
> >  He contacts the firm, they screen it and send him a letter saying his
> > statute of limitations is run and there is no claim.
> >
> > TWO YEARS LATER he files a chapter 7.  Because the law firm said there
> > was no claim he did not disclose the issue in any way to the Court or
> Trustee.
> > His no asset case closes in approximately 3 months from the petition.
> > I never withdrew from the case.  I never withdraw from closed cases.
> >
> > 3 months after the case closed the national law firm re-evaluated
> > cases of his type and reached out to him to reopen the PI case  Turns
> > out he is now entitled to a very substantial recovery.
> >
> > Not long ago the law firm called me and informed me of these facts
> > which is when I learned of any of this for the first time.
> >
> > Question:
> >
> > 1) Because my client was told by a firm two years prior to filing that
> > he did not have a claim I do not believe he has any issues with
> > bankruptcy fraud, yet.  The firm has admitted that they originally told
> him he had no
> > case.   Am I wrong?
> >
> >
> > 2) Isn't this an undisclosed contingent and unliquidated claim that
> > existed at the time of the bankruptcy despite the national law firms
> > advice to the contrary?  Thus isn't it property of the estate subject
> > only to a PI exemption to the extent reasonably necessary for support?
> >
> > 3) If so doesn't my client have a duty to re-open and list the asset
> > and claim any exemption?  Probably have to negotiate a compromise
> settlement?
> >
> > 3) what is the test for reasonably necessary for support of my client
> > and his minor children?
> >
> > 4) what if my client says he does not want to re list and bring to the
> > trustee's attention?
> > As the attorney of record in a closed case do I have a duty to re-open
> > and withdraw from the case without disclosing to the trustee what my
> > client is doing?  Or does the fact that it is closed mean I can walk
> > away and let my client run the risk of bankruptcy fraud for not
> > allowing me to re-open and disclose?
> >
> > any thoughts would be appreciated.
> >
> >
> >
> >
> >
> >
> > --
> > Rocky L. Wixom, Attorney at Law
> > (208) 542-5298
> >
> > Wixom Law Office, Inc.
> > PO Box 51334
> > Idaho Falls, Idaho  83405
> >
> > The contents of this message and any attachments are protected under
> > the attorney-client privilege and are intended for the designated
> > recipient only.  If you have received this message in error then
> > please delete it and contact Wixom Law Office at (208) 542-5298
> immediately.
> > _______________________________________________
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> > CLBS at admws.idaho.gov
> > http://admws.idaho.gov/mailman/listinfo/clbs
> >
>
>
>
> --
> Aaron J. Tolson
> 2677 E. 17th St. #300
> Ammon, ID. 83406
> 208-228-5221
>
> This a privileged communication.  Please advise if you received it in
> error.
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-- 
Rocky L. Wixom, Attorney at Law
(208) 542-5298

Wixom Law Office, Inc.
PO Box 51334
Idaho Falls, Idaho  83405

The contents of this message and any attachments are protected under the
attorney-client privilege and are intended for the designated recipient
only.  If you have received this message in error then please delete it and
contact Wixom Law Office at (208) 542-5298 immediately.