When does a Personal Injury claim arise in CA?
Posted: Mon Oct 10, 2016 2:26 pm
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> Guarav:
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> If the nature of the suit was product liability and the product was
> implanted prior to the filing, then the estate does have some interest in
> the award if not claimed as exempt. Other causes of action may not result
> in the same analysis. Id look at the complaint and the judgment to see
> how it was awarded.
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> The Debtor doesnt have to know about the defective nature of the implant
> for a products liability lawsuit. The product was defective regardless of
> the subjective state of your clients mind relative to the petition date.
> It was objectively defective. From a products liability standpoint, it was
> actionable regardless of knowledge of injury.
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> Try to settle, and if you would like to call me for discussions as to how
> to approach that with your particular trustee dont hesitate to call.
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> Steve Lever
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> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, October 05, 2016 1:04 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] When does a Personal Injury claim arise in CA?
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> Hi all,
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> I am in a bit of a fight with a Chapter 7 Trustee in a re-opened case
> where my former Chapter 7 Client had a defective vaginal mesh implant
> removed and was awarded damages for her injuries. The Chapter 7 trustee's
> claim is that since the implant was implanted prior to the filing of the
> Chapter 7 bankruptcy, that the injury and the proceeds of the award are
> property of the estate.
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> Question - if Debtor was not injured yet and did not know of the defective
> nature of the implant on or before the date of the petition, how can the
> Chapter 7 Trustee claim that the personal injury award is property of the
> estate? Doesn't the claim have to be actionable prior to the petition date
> for it to be property of the estate?
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> *Gaurav Datta, Esq.,LL.M 444 W. Ocean Blvd, Suite 1401*
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> *Long Beach, CA 90802 Phone: 562-435-9062 Fax: 562-281-6158
> *
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> *www.dattalawgroup.com *
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> "My formula for success is rise early, work late, and strike oil."
> - J. Paul Getty
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I read a case about 3 months ago, I can't find it. bankruptcy but he didn't list a potential claim against his home mortgage lender. After the bk was closed, the AG settled with the lender resulting in a large payout to the Debtor. Chapter 7 Trustee said it was an assetment of the cause of action did not occur until after the petition was filed, the claim was not an asset of the Estate.I am writing this because I am sure when Jon reads it, he'll know the case name.If your facts fit the facts of the case I just mentioned, then you have a good argument for why this is not property of the Estate.
The post was migrated from Yahoo.