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As part of my Chapter 7, I had to turn over a pending car accident

suit to the bankruptcy trustee...
As part of my Chapter 7, I had to turn over a pending car accident suit to the bankruptcy trustee. The case was finally settled by her appointed attorney. I am being asked to sign a Durable POA from her attorney. My concern is that the cash settlement was not enough to cover attorney's fees and doctor liens. As a result, I will be asked to pay the monies owed when I believe that it should be the trustee's responsibility. I do not mind endorsing the settlement check over to the law firm. Is there another way around the Durable POA? E.G., Special POA limiting the scope to the signing of the check. Bear in mind that I will be signing the general release. What do you suggest?
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Answered in 16 minutes by:
12/7/2012
Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31,797
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question.

 

I don't understand why her attorney would want a POA of any kind - general or special. In a case like this, your settlement check should be made payable to you and the trustee. The trustee would pay the claims of all creditors/claimants. Thus, I don't understand why a POA would ever be needed. I've handled several pi settlements through bankruptcy and have never seen a POA used.


At the very least, you should ask for a special limited power of attorney that just allows authority to perform this limited action.

If you included the medical providers as creditors, whatever isn't paid to them through the settlement should be discharged through your bankruptcy.


I would ask for a written explaination as to what the POA is being requested.

Roger
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Customer reply replied 4 years ago

Would it be within my legal rights under Bankruptcy Chapter 7 to request from the Insurer to reissue a new check showing the payees as the trustee and me instead of me, as a single individual?

Shall I notify the trustee about my concerns and see if she will concur to change the settlement as indicated above? Will this most likely result in a backlash from the trustee's attorney who negotiated the settlement?

 

After reading about the major 2011 changes in Florida regarding the new Durable Power of Attorney, I am troubled by the trustee's attorney suggesting that I sign one. Especially the opening sentence where I appoint the trustee's attorney and/or any representative as my lawful attorney for me and give this attorney in fact full power to endorse and cash the settlement draft in reference to my car accident. For one, this attorney is not and never will be my attorney.

 

Secondly, the power conferred to this attorney in fact shall lawfully do or cause to be done (I don't know what this means). The power conferred on my attorney in fact by this instrument shall be exercisable from December 4, 2012 through December 4, 2013- why so long?

 

Here is a separate matter but related to this car accident settlement. I read the RELEASE and I am concerned about signing this document because o the following paragraph: "The undersined agrees to be responsible for, and to satisfy out of the proceeds ($3,000 settlement draft) of this settlement, any and all liens, known and unknown, and/or subrogated interests, for medical treatment, health care and related expenses, and attorney's fees, incurred by, or on behalf of the undersigned, for any injuries arising from the accident described herein above. The undersigned agrees to indemnify, defend, and hold harmless Releasees from and against any and all claims, demands, losses, costs, and expenses, including, but not limited to, attorney fees, arising from such liens and/or subrogated interests."

 

I have been requested by JustAnswer to continue sending you subject related questions? I do not know how you are compensated for these additional questions but I propose that I compensate you via the bonus button? What do you recommend?

 

 

It is not very likely that you can get a new check issued very easily. Getting an insurance company to cancel a check and then re-issue another check is very complicated. The easiest thing to do is simply endorse the check over to the trustee.

 

Also, you should discuss the POA with the trustee. IF you're willing to sign over the check and execute any necessary documents, then there should really be no need for a POA. In any event, a general durable POA should not be necessary.

 

Instead, a special limited POA would be all that should be necessary to get the matters concerning your personal injury settlement resolved.

 

The "attorney in fact" language doesn't mean that the POA is your personal attorney. Instead, this just means that the POA is acting on your behalf. Thus, the POA would not be your attorney of record.

 

If you give a general durable POA, the POA can do anything on your behalf. That's why a special limited POA is more appropriate. Also, I don't know the reason for the POA being needed for an entire year. I can't imagine why they would need to have a POA for an entire year.

 

As for the paragraph, it says that you agree to pay all of these things out of the

proceeds from the settlement. It doesn't appear to say that you agree to pay these debts personally or with funds other than the settlement funds. I would certainly make sure with the other parties that this is what the agreement says/what the agreement is, but with that being the case, the paragraph is likely ok.

 

As for paying me, you can rate the question again, which will pay me, OR you can use the bonus option. Either way, I'll be paid for my time. Thanks for asking!

Roger
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Customer reply replied 4 years ago

I sent emails (12-10-12 and 12-07-12, respectively) notifying the trustee and her lawyer of my objections/concerns about signing a POA. I also indicated that I would sign the release (as is) and would sign a Special/Limited POA. What is a reasonable timeframe to receive their replies? Is there a point in time where the Trustee can accuse me of not cooperating and have the Judge revoke the entire Chapter 7 Bankruptcy? Would it be an accepted practice to write a personal check for $3,000 made payable to the Trustee and Lawyer and deposit the Insurance company's settlement draft into my personal joint checking account (fyi-my spouse is not part of the Chapter 7)?

A reasonable time on something like this is 10 days or so. In order for the trustee to take action, he/she would have to file a motion and ask the judge to require you to sign these documents, etc. At that point, you would have the opportunity to tell the judge why you have reservations.

I don't think there's any real risk in having your bankruptcy revoked over this issue. It is just something you and the trustee will have to work out, and if you can't the judge will decide the issue.

I wouldn't do anything as far as issuing payment until you get something settled with the trustee or the court.

Roger
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Category: Bankruptcy Law
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Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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