After thoughtful consideration, you and your spouse have made the family decision to file for Chapter 7 bankruptcy protection. Maybe you need to get out from under a mortgage? Perhaps you’ve recently lost your job? Maybe your medical bills are out of control? There are many factors that drive people to the ultimate decision to file Chapter 7 bankruptcy (Reasons why people file for Bankruptcy). So you schedule an appointment with Berkowitz & Myer for your no-cost consultation. On your way to your meeting, as you are driving up First Avenue North in St. Petersburg, Florida…BAM! Your vehicle is rear-ended at a red light. Both you and your spouse are hurt. Instead of going to meet with your bankruptcy lawyer, now you are on your way to either the hospital or a walk-in clinic. Obviously, now you need to contact Berkowitz & Myer for representation for injuries sustained in your accident. But what about your bankruptcy? Can you still file? What happens now?
At this point I wish you could just push the pause button! Sadly, life does not stop when we face even the most difficult moments. It may be obvious that you, the injured party, suffered injuries through no fault of your own. However, compensation for your injuries may take time. Living expenses, medical costs, car payments, mortgages and even school tuition, don’t cease when an injury occurs (even when it’s not YOUR fault). Now, while you wait for an award or settlement, what happens to the expenses and your pending Chapter 7 bankruptcy? In short, your filing will continue the same as before, but your bankruptcy estate now has grown to include another element: your potential personal injury claim. This will leave you and your family with some questions and some significant choices to make. The first and most important question you may have is “what is going to happen to my award or settlement if I continue with Chapter 7?”
Your Award or Settlement
When you break it down, any money you may receive in an award or settlement will be considered personal property. Whether it is an arbitration award or a trial judgment, the money you receive to compensate you for an injury will be part of the property in your bankruptcy estate. You may be saying to yourself, “this injury took place after I made the decision to declare chapter 7, so I don’t have disclose this as part of my bankruptcy estate, right”?
We know you don’t want give up any money you’re rightfully due, however you MUST disclose any potential claims if they took place before you have completed bankruptcy. When you file for bankruptcy, you will be assigned a bankruptcy trustee. You will have to send the trustee documents such as pay stubs, tax returns, and any information about your assets. It is the trustee’s job to review your bankruptcy petition and verify the information and calculations using your financial documents and other independent sources. The trustee will compare the information you provide against all the information at his or her disposal to make sure that the figures are accurate. If you do not disclose any potential awards or settlements you could be precluded from proceeding with bankruptcy or even be charged with the crime of fraud.
Chapter 7 of the bankruptcy code is generally the more favorable avenue for filing bankruptcy because it wipes out most, if not all of your debts.1 However, in return you have to give up certain assets and property that will be distributed amongst your creditors. You will not be forced to give up all of your assets. What you keep is determined by the bankruptcy trustee and exemptions set forth by federal and state law. While all personal injury claims are assets, just like your car, jewelry and other personal property, there are exemptions that can protect all or part of the proceeds from an award or settlement.2 Although the bankruptcy code has a list of federal bankruptcy exemptions, your state of residence decides whether you can use them or not. Florida, like many other states, does not allow its residents to use the federal bankruptcy exemptions, requiring its residents to use the Florida exemptions in bankruptcy.3
Even if you live in Florida, the exemptions may not apply to you. Florida’s exemptions apply to those who have been a resident of Florida for at least 730 days (two-year rule) prior to filling for bankruptcy. However, if you recently moved to Florida then you have to use the exemptions of the state where you were a resident for most of the 180 day (6 month) period before the two-years preceding your bankruptcy filing.
Unfortunately, Florida does not provide a blanket personal injury exemption. Instead, Florida law allows you to keep all settlement money or awards if you were injured while working in a hazardous occupation.4 A hazardous occupation is defined by Florida law as being any of the following: railroading, operating street railways, generating and selling electricity, telegraph and telephone business, express business, blasting and dynamiting, operating automobiles for public use, boating, when the boat is propelled by steam, gas or electricity.5 Settlements or awards outside of these occupations will not be wholly exempt in a bankruptcy proceeding!
While your potential claims may not be protected in their entirety, Florida does offer other exemptions that will increase the amount you get to keep from any settlements or awards. Under Florida’s wildcard exemption you can protect up to $1,000 of any personal property that you own. You can use this exemption to keep up to $1,000 of any award or settlement you receive in a lawsuit.6 Additionally, Florida Law also protects up to and an additional $4,000 if you don’t use the homestead exemption (something you should consider if you are renting). 7 Furthermore, all of the aforementioned exemptions may be doubled if you file for bankruptcy jointly with your spouse.
At Berkowitz and Myer we know the process of bankruptcy is stressful enough and we believe you shouldn’t give up any property you’re legally entitled to keep. If you are considering filing for bankruptcy you should seek the help of our experienced attorneys. We will be able to give you the best chance of keeping anything that you’re entitled to.
- Stat. Ann. §769.05.
- Stat. Ann. §769.01.
- Const. Art. 10, § 4.
- Stat. Ann. § 222.25