There is a recent Virginia Supreme Court opinion that says that the ability to bring a lawsuit, “standing”, must be in existence at the time the lawsuit is filed. In Kocher v. Campbell, the plaintiff had been in a car wreck in 2004, filed Bankruptcy in 2005, and not listed the asset of the potential personal injury claim in his Bankruptcy. He eventually voluntarily dismissed the lawsuit, then reopened his Bankruptcy to show the asset of the personal injury claim. Before the trustee abandoned the PI claim (personal injury money is exempt in Virginia pursuant to Virginia code 34-28.1), the plaintiff filed suit again. However, because he still did not have the right to bring the claim (because the trustee had not abandoned the claim) he was not the right party—he did not have “standing”. The Virginia Supreme Court ruled that the lawsuit, when brought by someone who does not have the right to bring a lawsuit- because they are not the right party- the lawsuit is a legal nullity—it does not exist. You can read about the case here.
What is the lesson we should learn from this? That EVERYTHING that you MIGHT have a right to—car accidents proceeds, inheritance, wrongful death proceeds, ANYTHING, must be disclosed to your lawyer when you are filing for Bankruptcy. This plaintiff lost the right to get anything out of that lawsuit because he did not have the right to bring it.
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Krumbein Consumer Legal Services, Inc.
5310 Markel Rd. Suite 102
Richmond, VA 23230