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BKAnswerMan
BKAnswerMan, Attorney
Category: Bankruptcy Law
Satisfied Customers: 25
Experience:  Experienced Bankruptcy Attorney that has represented over 1,000 clients in consumer bankruptcy proceedings.
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please elaborate on your earlier response. I need more information

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please elaborate on your earlier response. I need more information in terms case law, links etc that state that if you have a judgement agianst someone for pain and suffering then it would be most probably discharged in bankruptsy proceedings as compared for judgemnt for economic damages or other type of collection.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  BKAnswerMan replied 2 years ago.
11 USC 523 sets out the exceptions to discharge. If there is no exception listed then the general discharge will relieve the debtor of their liability. There is no exception outlined for pain an suffering. You may be able to claim your award as a "willful and malicious" injury under 11 USC 523(a)(6) or if the injury was incurred pursuant to a alcohol or substance abuse under 11 USC 523 (a)(9), but there is generally no exception to discharge for pain and suffering stemming from a non intentional tort case. See Kawaauhua v. Geiger 523 US 57, 61-62 (1998).
Customer: replied 2 years ago.
I understand about stuff that cannot be discharged ever (and my case does not fall into this never category). But when the judge decided whether to discharge things that CAN be discharged -- the judge would use certain criteria - -why are you saying that "pain and suffering" does not fall under discretion of the judge to garnish wages, etc and why for example "economic damages" would fall under the category where wages can be garnished. Again would like to have case law or specific links on the subject.
Expert:  BKAnswerMan replied 2 years ago.
You're not saying that the judgment you have already received specifically says that pain in suffering is not dischargeable in bk, are you? The ipso facto law would kick in, and debt would still be dischargeable by statute. If you want the judge to look at your claim you would need to file an adversary proceeding. Otherwise the judge will rubber stamp the discharge order. Congress writes and the judge upholds the bankruptcy code. When a discharge order is issued it simply says "Discharge of Debtor". The judge will not look at each particular debt. The discharge order is a form document that is prepared by a clerk with one statement on it. That's unfortunately how it works. When there is an exception to discharge it is raised in the negative. These exception cases are usually decided after the general discharge order is issued. Search the statute and case cite i gave you in google. They presuppose my point. Damages depend on the type of underlying claim.The creditor in the case had to categorize the underlying claim as an intentional tort. The Supreme Court said "no" it was a "negligent" claim. Thus, like your damages it was a dischargeable type of damage. The type of claim determines whether the damages are dischargeable. This is bankruptcy court.
Customer: replied 2 years ago.

The pain and suffering damages I am talking about do not fal under non-dischargable (it was not wilfull, etc). The judgemnt would not say noting at this point discharability-- all it is is the judgement against the defendant where the damages are divided into two categories: pain and suffering, and economic damages. The next step for me is to collect on this judgment. If the person does not declare BK - what can I collect on this judgment if his assessts are limted (can I garnish wages?). If the person decides to file BK -- what can I collect under the BK proceedings? (can I also garnish his wages? - -the same way as i can go after his assessts).

Expert:  BKAnswerMan replied 2 years ago.
You can garnish wages, levy accounts and lien his assets if he has not yet filed bankruptcy. If he files bankruptcy then any collection efforts may violate the automatic stay and subject you to liability and court sanctions. If he files bankruptcy the debt he owes you will be discharged and you will lose the right to collect on the judgment.
Customer: replied 2 years ago.
Am I misunderstang something -- if someone has assets (except the assessts that are excluded, such as homestead in Florida, etc) than those assessts should be sold to cover the judgement if one files for BK.
Expert:  BKAnswerMan replied 2 years ago.
There are two types of bankruptcy. Chapter 7 which is a complete liquidation bankruptcy and Chapter 13 which is a reorganization bankruptcy. Here is a link the Bankruptcy Basics series which explains the process:
http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics.aspx
Most Chapter 7 cases are no asset cases, meaning that there is nothing liquidated and nothing paid out to creditors. On the rare occasion when non exempt assets are liquidated there is a priority of payment. First, administrative fees including trustee fees, attorney fees, and accounting fees. Next, priority debt like taxes and child support is paid, and then general unsecured debt like your claim. It is not uncommon for a Trustee to abandon assets that are in excess of the exemption limits. I heard a Trustee once say, (on a case that I wanted him to open an estate) that it's not worth all the pushups he would have to do. It is difficult to appreciate the workload that Bankruptcy Trustees have, so you would do well to be a squeaky wheel if there are assets. 95-99% of Chapter 7 cases in my district are no asset cases (but I practice in CA where the exemptions are fairly liberal).
The person that owes you would need to list you on their bankruptcy schedules as a creditor. You will be given notice of a Meeting of Creditors. This is your opportunity to inquire about the persons income and assets. The Debtor will have signed everything under penalty of perjury so you may be able to make life miserable for them if you catch them hiding assets or not disclosing income.
If it is an asset case or a Chapter 13 case where something is being paid to general unsecured creditors, then you may be entitled to a pro-rata share of the proceeds. You will need to file a proof of claim in either of these scenarios. If you don't file a proof of claim, then you will not receive any portion of the bankruptcy estate. The portion that is not paid in an asset case or a Chapter 13 case would be discharged.
Expert:  BKAnswerMan replied 2 years ago.
I believe I have answered your questions. I would be happy to discuss this further with you if you need more elaboration, but I would need for you to open another question in order to do so.
BKAnswerMan, Attorney
Category: Bankruptcy Law
Satisfied Customers: 25
Experience: Experienced Bankruptcy Attorney that has represented over 1,000 clients in consumer bankruptcy proceedings.
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Experienced Bankruptcy Attorney that has represented over 1,000 clients in consumer bankruptcy proceedings.