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WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 17223
Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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My husband and I filed chapter 7 bankruptcy in Connecticut

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My husband and I filed chapter 7 bankruptcy in Connecticut in 2010, which was discharged May 2011. We had a car accident lawsuit case (filed in NY state) that was outstanding at the time (hence property of the bankruptcy court.) The accident case was just settled for $53,000. The bankruptcy trustee, oddly, asked that the amount from the accident case be split: $48,000 would go to my husband, and $5,000 to me (I had a consortium claim.) The contingency fees and court costs brought my husband's expected amount down to $27,734. According to the notice of hearing filed by the Trustee, it looks like my husband is only getting $21,625, and I the full amount of $5,000. We were told (by numerous lawyers) that my husband's exemption amount was $40,000, so that if he were to receive up to that amount, he would be able to keep it. We are totally confused as to why it looks like this is not the case, and the bankruptcy court is taking about $6,100 out of his portion of the settlement. We went back to look through the original bankruptcy papers, and the "schedule C" showed $40,000 for my husband and $20,000 for me. But it also showed (and we were not told this, and did not think anything of it at the time) the "value" of my husband's exemptions are set at $21,625 and mine as $20,000. The hearing with the US bankruptcy court is tomorrow, and we don't know if we should go, or not/if it would make any difference or not. Our bankruptcy lawyer has not returned our calls. We are totally confused, upset and angry. To further confuse matters, the bankruptcy trustee told our car accident lawyer, directly after the mediation where the amount for the accident case was settled, that we would be able to keep the full amount. Can anyone explain this?

WALLSTREETESQ :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarificati on

WALLSTREETESQ :

What I think happened, was that the lawyer used the Federal bankruptcy exemptions, which in 2010 would have been $21,625 as of 2013 the exemption is $22975, see 522(d)(11)(D) - Personal injury recovery up to $22,975 except for pain and suffering or for pecuniary loss.

WALLSTREETESQ :

you should have also been able to use the CT wild card exemption as well,

WALLSTREETESQ :
Customer:

The total exemptions for me was $40k. That included CT, I believe.

WALLSTREETESQ :

In CT, there is no personal injury exemption so the federal exemptions would have been used,

Customer:

So that is why the fedaral exemptions only and the "value" was used?

WALLSTREETESQ :

if you used the wild card exemptions of $1,150 and 11,500 you would be out of luck

WALLSTREETESQ :

yes,

Customer:

Its not what we are wanting to here but I understand what you are saying.

WALLSTREETESQ :

If you did not have any property to be exempted, you could have exempted the entire settlement,

WALLSTREETESQ :

but if you used it, on other items, the 2010 limits would apply.

Customer:

Is there any recourse for us to use the 2013 amounts even though the case was started in 2010?

Customer:

We had no actual "property" to apply the exemptions to

WALLSTREETESQ :

so what did your attorney claim exemptions for?

Customer:

I don't remember all the details without looking

WALLSTREETESQ :

You can go to the hearing and advise the court you have a right under the federal exemption to use any unused homestead exemption to protect property,

Customer:

I remember there were exepmtions for the cars and personal property

WALLSTREETESQ :

up to 11,200 now, in 2010 it may have been around 10,000

WALLSTREETESQ :

You should look at your petition,

Customer:

the original document?

WALLSTREETESQ :

The petition you filed to see if you have any property exemption left over, or go to the hearing and ask them if you have any exemption for personal property left,

WALLSTREETESQ :

and if so, you want to use it for the settlement.

Customer:

OK. I'll review what we have and then make the decision to go or not go.

WALLSTREETESQ :

Yes, or just go to the hearing, and ask the court to see if you have any, they may do this for you,

Customer:

If all the exemptions were used should we go to the hearing? Is it worth it?

WALLSTREETESQ :

Good luck, and if you have any further questions please do not hesitate to ask.

WALLSTREETESQ :

It would not help, if all the exemption amount was used,

Customer:

Thank you for your time and advice.

WALLSTREETESQ :

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