Disclosure of Post-Petition Claims in a
Chapter 13 Bankruptcy
By James J. Haller, Esq.
Haller Law
Lincolnshire, Illinois
H
ave you ever received an irate
call from a chapter 13 client
upset that you didn’t list their
personal injury lawsuit and blaming you
because he won’t be able to collect?
Have you then found that no personal
injury action was listed on Schedule B
because the accident occurred post-
filing? This article discusses the legal
arguments, what can you do 1 , and how
can you guard against it in the future. routinely search PACER to determine
if the plaintiff had previously filed for
bankruptcy. The Defendant will then
file a motion to dismiss or motion for
summary judgment typically asserting
two arguments: (1) the debtor lacks
standing to pursue the claim, or (2)
the debtor is judicially estopped from
pursuing the claim. the case …” Next, 11 U.S.C. § 1306
expands the chapter 13 estate to
include property specified in § 541 plus
(1) all property of the kind specified in
§541 that the debtor acquires after the
commencement of the case and (2)
earnings from services performed by
the debtor after the commencement of
the case.
Standing Argument The situation usually rises when the
Defendant finds out the Plaintiff (client)
is in a pending chapter 13 bankruptcy.
Personal injury and employment
discrimination defense counsel now Defendants usually argue (1) the claim
was part of the client’s bankruptcy
estate, (2) that the Bankruptcy Code
requires disclosure of post-petition
claims, and (3) because it was not
disclosed the debtor does not have
standing. Courts have correctly held that a
chapter 13 debtor’s interest in claims
arising post-petition are part of the
bankruptcy estate. See In re Waldron,
536 F.3d 1239, 1243 (11th Cir. 2008)
and In re Carroll, 735 F.3d 147 (4 th
Cir. 2013). Check the caselaw in your
jurisdiction.
1
This is an active issue
before the courts. If you are
addressing this issue please
contact Tara Twomey, the NACBA
Amicus Project Director. She has
briefed this issue multiple times in
appellate courts and is very familiar
with the law. Her email address is
here .
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CONSUMER BANKRUPTCY JOURNAL
The Bankruptcy Estate
The bankruptcy estate is defined by
the Bankruptcy Code. Section 541(a)
“creates an estate…comprised of
all the following property, wherever
located and by whomever held … all
legal or equitable interests of the debtor
in property as of the commencement of
Winter 2018
Duty to Disclose
The duty to disclose is expressly laid
out in Bankruptcy Rule 1007(h) titled
Interests Acquired or Arising After
Petition.
If, as provided by §541(a)(5) of the
Code, the debtor acquires or becomes
entitled to acquire any interest in
National Association of Consumer Bankruptcy Attorneys