In Part One, I explained that if you don’t list your personal injury claim in your bankruptcy, you don’t “own it” any longer and don’t have the right to pursue the personal injury claim.   In this post I’ll tell you about another problem you’ll have and about a real case right here in South Carolina.

Judicial Estoppel Can Really Cause You Problems

If you fail to list legal claims during your bankruptcy, you may forever lose the right to pursue those claims. Once the other lawyer finds out your bankruptcy is inaccurate, you can’t say, “Whoops, I guess I’ll call my bankruptcy lawyer and list that claim on my schedules!” It’s too late.   

This problem just raised its ugly head in the United States District Court here in South Carolina.  Blanche Wright had a legal claim against Richard Guess alleging violation of her civil rights. But when Ms. Wright filed bankruptcy, she didn’t list the federal lawsuit. 

Predictably, the defense attorney found out about her bankruptcy filing. And they always do, by the way.

The defense then asked the court to dismiss Ms. Wright’s case because (1) she didn’t have standing to bring it—that is, she didn’t “own” the claim; her bankruptcy estate did, and (2) because Ms. Wright’s claims should be barred because of judicial estoppel.

What Exactly is Judicial Estoppel Anyway?

As Judge Anderson explained, “judicial estoppel is ‘an equitable doctrine that prevents a party who has successfully taken a position in one proceeding from taking the opposite position in a subsequent proceeding.’” This means you can’t say, “I have no legal claims” in your bankruptcy by not listing your personal injury case, then turn around and say, “I do have a legal claim” in your state or federal court case. You can’t “play fast and loose with the courts,” as Judge Anderson explained in Ms. Wright’s case.     

Although Ms. Wright actually amended her bankruptcy after the defense filed its motion to dismiss, this didn’t impress Judge Anderson, who stated, “[c]ourts have repeatedly rejected the argument that judicial estoppel should not be applied when the debtor-plaintiff has attempted to remedy an omission by amending her bankruptcy filings.” 

What’s All This Mean?

The bottom line is this:

  • You must notify your personal injury lawyer if you intend on filing bankruptcy. He needs to know. And he may also be able to refer you to a bankruptcy lawyer he knows will be qualified to handle your case.
  • You must list your personal injury claim on your bankruptcy schedules. Don’t ever hide anything from any lawyer you hire, and this is especially true when dealing with assets like claims in your bankruptcy estate.
  • If you don’t list your injury claim in your bankruptcy estate, you may lose it forever. Saying “oops, I forgot” will not work. 

Your lawyers want the best outcome to your cases. Help them help you by keeping them informed of all your legal problems. 

 

(This is a guest post written by Russell A. DeMott. Click on his biography below for more information about Mr. DeMott’s bankruptcy practice.)

 

 

Russell A. DeMott is a bankruptcy lawyer practicing in Charleston, South Carolina. He represents clients in Chapter 7 and Chapter 13 bankruptcy.

 

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Photo of Trey Mills Trey Mills

Floyd S. “Trey” Mills III knows that suffering a personal injury through no fault of your own can be a nightmare for the victim and his or her family

Mr. Mills was born on April 24, 1978.  His parents, Floyd S. “Butch” Mills,

Floyd S. “Trey” Mills III knows that suffering a personal injury through no fault of your own can be a nightmare for the victim and his or her family

Mr. Mills was born on April 24, 1978.  His parents, Floyd S. “Butch” Mills, Jr. and Patricia Yarborough Mills, were originally from Newberry, South Carolina, and soon after the birth of Mr. Mills, his parents brought him back to be raised in the same county they grew up in.

Education

Mr. Mills attended Newberry Academy from grades K-3, Gallman Elementary 4th grade, Rikard Elementary 5-6th grade, Mid-Carolina Middle School 7-8th grades, Mid-Carolina High School from 9-12th grades, Clemson University, and Walter F. George School of Law at Mercer University.

Health Crisis

While Mr. Mills was a junior in high school he was chosen by his school to be a representative to Boys State.  This was a great honor and would have been an even better experience except, while at Boys State, Mr. Mills became unusually ill with blackouts, night sweats, and back pain.  Fortunately for Mr. Mills, his mother was an ER nurse at Lexington Medical Center, but unfortunately, for Mr. Mills that did not change his diagnosis of Acute Lymphocytic Leukemia.  Along with his diagnosis, Mr. Mills received a prognosis of two weeks.

Obviously, Mr. Mills has been blessed with his second chance at life and those who have been wronged by health care insurance companies and other types of insurance companies can feel confident in knowing that Mr. Mills can not only empathize with them but fight fervently for their side.  Mr. Mills’ cancer experience and his mother’s arduous yet unsuccessful battle against lung cancer were very trying times.  However, those real-world battles and experiences were nothing compared to the administrative and billing wars he had to encounter with Blue Cross Blue Shield Health Insurance. It seems BCBS would deny any charge over $1,000 without rational reasoning therefore prompting Mr. Mills to go to law school and carry the torch for those that were too ill to fight for themselves while the school yard bully beat them down.

College

Mr. Mills went on to Clemson University where he was very active in student activities along with academic accomplishments.  Mr. Mills was invited to join Calhoun Honor’s College, Sigma Pi fraternity, Golden Key National Honor Society, Student Government, IPTAY Student Advisory Board, and Tiger Brotherhood. Mr. Mills also worked as a student employee with IPTAY Scholarship Fund under the direction of Bert Henderson, formerly the Associate Athletic Director of Planned Giving at Clemson University.

Early Life

Mr. Mills was unsure of where his hard work and life experiences would best provide an adequate return to the outpouring of kindness he received during his cancer experience. Having received many blessings from the American Red Cross, Mr. Mills went on to be an Apheresis Donor Recruiter under the supervision of Barry Pollard at the American Red Cross Blood Donor Services in Columbia, SC after graduating Clemson University.

Running from his true calling, Mr. Mills fled to Guadalajara, Jalisco, Mexico to Teach English as a Foreign Language (TEFL).  Having spent a semester of college in Madrid, Spain, Mr. Mills thought he should be assisting foreign countries. Mr. Mills was certified by the Vancouver Language Centre in Guadalajara for his TEFL training.  Mr. Mills was in Guadalajara only a few months when September 11, 2001 occurred and helped him focus on his life priorities.

Law School

Mr. Mills went on to law school at Mercer University and clerked each summer trying to determine how he could best serve those less fortunate.  The corporate law firms never truly provided him with that personal feeling of assisting the common person in need.  It wasn’t until Mr. Mills became the first law clerk of the South Carolina Trial Lawyers Association under the supervision of Linda Franklin and lobbyist Michael Gunn that he realized where his education, life experience, drive, and hard work could truly benefit those who have been personally and directly affected by the negligence of another.  Mr. Mills wanted to be a coveted and much needed plaintiff’s trial attorney.  More importantly Mr. Mills realized the power of the faceless insurance companies, misinformed legislative members, and the true power of money and lobbyist in dictating laws.

What’s the one service you pay for all your life but you are actually penalized if you ever have to use it? Insurance.

Trammell & Mills

Mr. Ernie Trammell gave Mr. Mills his big break at leveling the playing field against the faceless and heartless insurance companies.  Mr. Mills works tirelessly every day in an effort to bring justice to those who have been wronged.  Mr. Mills has worked on both sides of the law and has been through some harrowing life experiences.  Mr. Mills has been tested and tried by many of the more traumatic events that life has to offer and now provides his services to the public.

Who would you rather have on your side? Someone whose resolve has been tested and tried? Or someone who has intertwined their morality and greed in such a way that they can’t tell one from the other?

Why haven’t you hired Mr. Mills to be your attorney yet?

Would you listen to the devil on how to get to Heaven? Then why listen to insurance adjusters?