Answer to Question 1
A bankruptcy debtor who is also an injured party in a personal injury case must inform his or her bankruptcy attorney of the existence of a claim. The failure to disclose a pending personal injury claim is considered a crime. When the bankruptcy petition is filed, the trustee assumes control over the personal injury matter and has the authority to settle or litigate the case. Unfortunately, the debtor has no authority to accept or reject a settlement, participate in its negotiation, or decide whether to go to trial. Any funds obtained become part of the bankruptcy estate and are available to pay creditors.
Failure to disclose pending claims to the bankruptcy court may result in dismissal or revocation of the debtor's bankruptcy case, thereby exposing the debtor to criminal prosecution. Furthermore, debtors who fail to disclose a pending personal injury to the bankruptcy court also run the risk of having their personal injury case dismissed. Defense attorneys who represent insurance companies make it a practice to instruct their paralegals to check the public bankruptcy court records for pending cases. Under the doctrine of judicial estoppel, the debtor, as personal injury plaintiff, is barred from proceeding in the tort case when he or she fails to disclose the action as an asset in a bankruptcy petition.
The paralegal should let the debtor know that the lawsuit must be disclosed given the reasons cited above. If the debtor refuses to comply, the paralegal should inform his or her supervising attorney and allow him or her to handle the situation.
Answer to Question 2
C
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