If you file a lawsuit during your Chapter 13 bankruptcy case, you must disclose this fact to the court and the bankruptcy trustee and must amend your bankruptcy schedules if it's not already listed. Also, the lawsuit might mean that you have to pay more into your Chapter 13 plan. Read on to learn more about how a lawsuit will impact your Chapter 13 bankruptcy case.
If you file a lawsuit during your Chapter 13 case, you must disclose that fact to the bankruptcy court, your Chapter 13 trustee, and your bankruptcy lawyer.
If the basis for the lawsuit happened before you filed for Chapter 13 bankruptcy, you should include the potential claim in your bankruptcy schedules. A potential legal claim or lawsuit (even if not filed yet) is an asset, just like your home, car, and bank accounts. Even though you don’t know whether the lawsuit has any value, it could be converted into a settlement or a judgment with a monetary value in the future.
Often, people aren't aware that they have a legal claim when they file for Chapter 13 bankruptcy, even if the underlying event already took place. If this happens, you must disclose the claim to the court when you learn of it -- you do this by amending your Chapter 13 schedules. If you don't, you could later lose your right to any damages from the claim.
Here are some examples of when this might happen:
A lot can happen during the three to five years it takes to complete a Chapter 13 payment plan. Claims that arise during the Chapter 13 case are also property of the bankruptcy estate and you must disclose them to the bankruptcy court. If you think you have a claim against someone else, even if you don’t plan to file a lawsuit, contact your attorney to discuss whether it will be necessary for you to disclose the potential claim.
Filing a lawsuit during your Chapter 13 case might affect the amount of your Chapter 13 plan payments if
In a Chapter 13 case, you must pay the value of any nonexempt property to your unsecured creditors through your Chapter 13 plan over the life of your plan period (between three and five years). (To learn what property is exempt, and the role exemptions play in Chapter 13 bankruptcy, see Exemptions in Chapter 13 Bankruptcy.)
If the proceeds of your lawsuit will not be exempt, then the bankruptcy court will probably require you to contribute at least a portion of the proceeds to your Chapter 13 plan payment.
Even if your lawsuit proceeds are exempt property, you may still have to devote some of the settlement or award to your payment plan. This is because in Chapter 13 bankruptcy, you must devote all of your disposable income (income not reasonably necessary for the support of you or your dependents) toward paying unsecured creditors. (Learn more in Chapter 13 Bankruptcy: Your Disposable Income.)
If any of the lawsuit proceeds are considered disposable income, the Chapter 13 trustee might file a motion asking the court to order you to amend your payment plan to include some or all of the proceeds to pay unsecured creditors.
Example. Suppose that your disposable income (which is calculated based on the formula in Form 22C of the Bankruptcy Forms) is $500 per month, which means your plan payment is $500 per month. Two years into your Chapter 13 plan you settle a lawsuit for $50,000. Your Chapter 13 trustee might argue that the $50,000 is income that is not necessary for your support and that the settlement money should be paid into your plan for the benefit of your creditors.
Because the lawsuit is part of your bankruptcy estate, the bankruptcy court will have to approve any settlement you propose to make, particularly to ensure that the attorneys' fees and costs in the lawsuit are reasonable.
In many cases, if you wait until your Chapter 13 case is over to file your lawsuit, the statute of limitations (the time period that you must bring a lawsuit on a claim) will have run. Check with your attorney on the timing.
Keep in mind though, that even if you file the lawsuit later, you'll still have to disclose the potential legal claim to the court during your Chapter 13 case. Otherwise, you might run into trouble in your Chapter 13 case and might be prohibited from pursuing the lawsuit down the line. (To learn more, see Do I Have to Amend My Bankruptcy Petition If I File a Lawsuit?)