DISCLAIMER: The following information should not relied upon as legal authority. Finally, this information should supplement, not substitute, for the advice of competent legal counsel.
How long do I have to file a personal injury claim in California?
Generally speaking, you have two years from the day of the car accident to file a claim.
Technically what that really means is, you can file a claim up to two years and if you’re unable to settle that claim with the insurance company, you have until the two-year expiration date to file a lawsuit.
It is very important that you remember the statute of limitations says that if you don’t file your claim, or you don’t file your lawsuit, rather, within a two-year period, your claim is barred by law. Which means you’ve lost your ability to collect from the at-fault party.
Some statute of limitations may be shorter if accident involve a governmental entity vehicle, such a police department, state or local agency. Some statute of limitations may be longer if a minor was involved in the accident. As these statute dates can be very complicated, it is important to speak to an experienced attorney immediately after the accident so your rights are protected.
What should I do after a car accident?
That’s a very good question, and it’s something that if not handled right, can have negative consequences on your case.
- Call The Police. The first thing you should always do is call the police or call for emergency personnel. One, it allows a law enforcement officer to investigate how the accident took place and establish who’s at fault. It’s very important in dealing with a case like this. The second thing, the law enforcement officer is going to document the different parties who are involved and complaints of injuries that were suffered on scene, and it’s also a good bird’s eye view to get the officer’s impression about how the accident happened, the severity of the accident, the damage to the vehicles, and in some places, some jurisdictions, law enforcement will also take pictures of the accident as it’s fresh on scene. This can make a huge difference in the outcome of your case.
- Seek Medical Attention If Required. The second thing you should do is get yourself evaluated by medical personnel immediately. That could mean getting an ambulance going from the accident scene directly to the emergency room, and if you’re not injured to the severity where you need to be taken away by ambulance, then I would encourage you to drive from the accident scene directly to an emergency room, doctor’s office or urgent care and get yourself treated, X-rays if necessary or an MRI is warranted. It is important to have a doctor document your injuries. You do that from the time of the accident up until you have that opportunity, it will save you a lot of headaches. One of the things you want to avoid is what’s called a gap in treatment. Insurance companies will punish you if you take too long to get medical attention.
- Document Everything After An Auto Accident. Take pictures at the scene following a car accident. If you have visible injuries such as bruised skin, cuts, broken bones, anything that can be used to impress upon a jury or a judge that, “Hey, this is not a frivolous claim, I was actually hurt and I was hurt very badly.” So pictures, as the old saying goes, a picture’s worth a thousand words. Write down names and addresses of witnesses. This is very important in particular when the police department does not prepare a report. You should also get the name of the person that hit you as well as the insurance name and policy number to expedite the process of setting up a claim with that person’s insurance company.
- Contact An Experienced Personal Injury Lawyer. Although most cases settle out without a trial, it is essential to select an attorney who has litigation experience in the event the case has to be presented to a jury or tried by a judge.
That’s the other thing that we would encourage you to do. If you don’t call us, call someone that’s experienced. Our number is (559) 981-2392. Feel free to contact us for a complimentary case review.
How Do I Get My Car Repaired After An Auto Accident?
Well, that’s a process all by itself. If you have your own insurance carrier that will pay for those damages that’s an option, and we understand most people don’t want to file a claim with their own insurance company, but often times it is much faster to have the damages paid for by your insurance company than to try to get those paid by the other party’s insurance. If the damages are paid by your insurance, your insurance will seek reimbursement of those damages paid from the at fault insurance. You can also set up a claim with the at-fault party. Most times you can’t do that until the accident report is ready. That insurance company, the at-fault insurance company, will assign an adjuster or an appraiser to come out and look at the damages and either give you an estimate right there on the spot or give you directions as to which collision centers or body shops you can take your vehicle to for an inspection and allow that collision center or body shop to give you an estimate for the repair of damages.
Now, if your accident was so severe that the car cannot be repaired and is deemed a total loss well that process is a little different. Once your car has been declared a total loss, and basically what that means is the cost of repairing the car exceeds the value of the vehicle and once that happens the insurance company is going to make a determination as to the fair market value of your vehicle and cut you a check. That check goes directly to you or your finance company.
How Much Is My Car Accident Worth?
We get this question all the time. Let me tell you, if an attorney gives you an answer to that question at your first consultation, you may get an answer that is not credible. Sometimes some lawyers may give you a little bit of false hope, just to get your business. I would avoid attorneys who are so eager to give you a value of the case from day one.
The reason I say that is because one, you don’t know how much your medical bills are going be. Two, you don’t know the full extent of your damages, meaning your injuries. And three, there needs to be time to evaluate your lost wages and the pain and suffering. And the pain and suffering is going to include everything from your inability to sleep comfortably at night, to having trouble performing your duties at work, and again, lost wages and lost income.
So we typically like to evaluate the value of the case after we’ve had time to fully assess all of your injuries, all of your bills, all of your lost wages, and all of your pain and suffering, and whether or not you’re going to need future medical care. That takes several months to assess, and so I would avoid getting caught up on someone giving you a false hope at the very beginning of the case if they haven’t taken the time to fully evaluate all of those factors I’ve just mentioned.
How Should I Handle A Call From The At-Fault Person's Insurance Company?
Very simple. You don’t. Refer that call to your attorney’s office. Or, simply let the adjuster know that you are represented and give the adjuster your attorney’s information. Sometimes there are exceptions to that rule. Those exceptions would include dealing with your car when your car is damaged in an automobile accident. You will be notified sometimes from what is called a property adjuster. That property adjuster is specifically dedicated to dealing with the damages of the vehicle, evaluating the damages of your vehicle, and dealing with whether or not the vehicle is going be repaired, or deemed a total loss. In those limited cases, it’s okay to speak with the at-fault insurance company. But if you’re not certain that this is the only reason they’re calling you, refer them to your attorney.
What if the at-fault-insurance company sends me forms in the mail?
Now there are times when the at-fault insurance company will send you forms in the mail. Sometimes those forms will include authorizations for medical releases. You don’t want to fill those out or return them. Why? Because it may give the at-fault insurance company access to your medical records, and they may discover things that have absolutely nothing to do with your claim or your injury.
Believe it or not, they will attempt to use your past medical issues against you. Sometimes it’s helpful, sometimes it’s not. But in most cases, they’re generally going to try to use the information against you. So the rule of thumb is, any correspondence, any phone calls, from the at-fault insurance company should be directed to your attorney.
Will I Have To Go To Trial For My Personal Injury Case?
The answer is maybe. 90% of the cases that we handle are settled without going to trial, but there are times when the insurance company is either unreasonable, or there’s a dispute as to who’s at fault, and in those cases we have to file a lawsuit, and we file a lawsuit your case will have to go to trial.
If a lawsuit if filed, it generally takes about a year to two years for the case to go to trial. That includes filing a lawsuit, engaging in what’s called discovery, doing depositions and interrogatories, and dealing with the court system. Those times, and in those particular instances, your participation is very important. So, you’ve got to remember everything that happened.
How Long Will It Take To Settle My Personal Injury Case?
Before we can start settlement negotiations, we have to have all of your evidence together, and more importantly, you should have been treated by medical professionals to make sure that you’ve received the absolute best care that you needed in order to heal from your injuries. Once all that takes place, we gather all of your evidence including photos from the accident, medical records as well as all of your medical bills, and we put all these things together and we present a settlement demand. This initiates the negotiation process between the at-fault insurance company and your attorney, with your participation. Some cases can take up to 2 years from the date of the accident to settle out of Court. However, most cases settle much sooner than that.
Bankruptcy Frequently Asked Questions
Which type of bankruptcy should I file?
The type depends on your circumstances and if you have assets available to repay all or part of your debts.
Consumers typically file Chapter 7, where debts are discharged or Chapter 13, where payments are made to creditors before they are discharged. Businesses typically file Chapter 13 or Chapter 11, where the business is reorganized. Chapter 12 allows family farmers and fishermen to repay their debts.
Each chapter of bankruptcy spells out what debts can be eliminated or how long payments can be stretched out and what possessions you can keep. Bankruptcy laws can be tricky and involved, so determining if, when and which type of bankruptcy you need should be made with careful thought and with the input of a bankruptcy lawyer.
Can I change from one chapter of bankruptcy to another?
Generally, you can convert a case one time to any other chapter you are eligible for. There are some issues when moving from Chapter 13 to a Chapter 7 bankruptcy, including reviewing whether you have acquired items that are now considered property of the estate under Chapter 7 that were not a part of the previous filing. As these matters are most complex, you should consult a bankruptcy lawyer.
Who can file bankruptcy?
Well, that’s a process all by itself. If you have your own insurance carrier that will pay for those damages that’s an option, and we understand most people don’t want to file a claim with their own insurance company, but often times it is much faster to have the damages paid for by your insurance company than to try to get those paid by the other party’s insurance. If the damages are paid by your insurance, your insurance will seek reimbursement of those damages paid from the at fault insurance. You can also set up a claim with the at-fault party. Most times you can’t do that until the accident report is ready. That insurance company, the at-fault insurance company, will assign an adjuster or an appraiser to come out and look at the damages and either give you an estimate right there on the spot or give you directions as to which collision centers or body shops you can take your vehicle to for an inspection and allow that collision center or body shop to give you an estimate for the repair of damages.
Now, if your accident was so severe that the car cannot be repaired and is deemed a total loss well that process is a little different. Once your car has been declared a total loss, and basically what that means is the cost of repairing the car exceeds the value of the vehicle and once that happens the insurance company is going to make a determination as to the fair market value of your vehicle and cut you a check. That check goes directly to you or your finance company.
How often can you file for bankruptcy?
Chapter 7 Bankruptcies can be filed every 8 years from a previous Chapter 7 filing or 6 years from a prior chapter 13 filing. Chapter 13 Bankruptcies can be filed 4 years from a prior Chapter 7 filing or 2 years from a prior Chapter 13 filing.
What do I need to begin the bankruptcy process?
First we must determine if you are eligible for bankruptcy and what chapter of bankruptcy you are eligible to file. Bankruptcy and Chapter eligibility is determined by income and type of debt. The income considered for eligibility is your average gross (before taxes) income from all sources over the last 6 months. Some debts are not dischargeable in bankruptcy. A review of the type of debts will determine if they are dischargeable or not. See: Can all types of debt be discharged discussion below.
How long do bankruptcy cases take?
The length of a bankruptcy case depends on many circumstances, but mostly depends on which type of bankruptcy you file.
The average successful Chapter 7 bankruptcy case generally takes between 3 and 6 months before the filer receives his or her bankruptcy discharge. Once those unsecured debts are discharged, the filer is no longer responsible to pay for them.
The average successful Chapter 13 bankruptcy cases take 3 to 5 years after the repayment plant has been approved by the Court.
Do you have to have certain amount of debt to file?
No. However, some financial situations may not warrant filing for bankruptcy. If your financial situation is temporary, you may consider making arrangements with individual creditors for a change in payment amount or a reduction in the total amount due.
What is a joint petition?
A joint petition is when an individual and a spouse file a single petition. Unmarried partners must each file a separate case.
What happens if one spouse files for bankruptcy and not the other?
If one spouse files and the other doesn’t, the one who does not file could be responsible for the debts if they were acquired during the marriage. The income of both spouses is considered in determining eligibility.
Can a co-signer of a loan be responsible for a debt if the other person has declared bankruptcy?
Yes. The lender can require the co-signer to make payments on a loan once the principal has declared bankruptcy on the credit. This makes it extremely important when considering co-signing a loan: Be ready, and able, to pay the loan in the event that the principal signor defaults.
Can all types of debt be discharged?
No. The debts that can’t be discharged vary slightly between the different chapters of bankruptcy. Generally, the following cannot be discharged:
- Debts for taxes owed to local, state or federal agencies
- Debts for money, property, services, or an extension, renewal, or refinancing of credit, which was obtained fraudulently.
- Debts that were not in the initial list of debts or that the debtor waived being cancelled.
- Debts owed to a spouse, former spouse, or child, for alimony, maintenance, or support of a spouse or child, with separation agreement, divorce decree or other order of court of record.
- Debts owed for injury to another person or property owned by another (as in a court judgment)
- Debts for government-sponsored education loans, unless it can be shown that repayment will cause an undue hardship.
- Debts for death or personal injury caused by the debtor’s drunk driving or from driving while under the influence of drugs or other substances (as in a court judgment)
- Debts incurred after a bankruptcy was filed.
Any type of legal judgment.
What can I keep, if anything, if I file bankruptcy?
Generally, you are entitled to keep household goods, clothing, and personal effects of ordinary value. You can usually keep the equity in your home up to a certain dollar value. You can also keep a certain amount of cash, including bank deposits, and one or more vehicles up to a specified value. You can keep the wages you earn after filing your chapter 7 petition. With rare exceptions, you can keep your retirement accounts and pension funds, as well as your right to receive disability payments. In addition, California gives you a “wildcard” exemption of a certain dollar value that can be applied to any property you designate.
Will I lose my house if I file bankruptcy?
Not necessarily.
If there is no equity in the house (today’s value less costs of sale less payoff balances on all liens) the trustee in a Chapter 7 will abandon the house to you. That is, you keep it, as long as you pay the mortgages.
A bankruptcy does not relieve property of the liability for voluntary liens, like mortgages or deeds of trust, nor for tax liens. So, the lender retains the right to foreclose if you don’t pay.
If you pay, everyone is happy. Remember, the lender does not want the property; it wants you to pay regularly on the loan. Foreclosure is a last resort for the lender if it concludes it can’t get its money any other way.
If there is equity, a determination must be made to determine whether the exemptions available to you equal or exceed the equity in the property. If the equity is all exempt, you can keep the house, so long as you pay the mortgages.
Can I keep my car?
Usually, yes. What you must do to keep the car through a Chapter 7 bankruptcy varies depending on whether there is nonexempt equity in the car.
If there is no equity in the car, after subtracting any car loan and exemption from the car’s present sale value, the bankruptcy trustee will not take the car.
If there is equity in the car over and above the value of the exemptions available, a debtor can usually buy any unprotected equity from the Chapter 7 trustee.
If you still owe money on the car, you can chose to reaffirm the debt to the secured lender, keep the car, and continue paying under the existing terms; or you can buy the car from the secured creditor in a single payment for its present value (redemption
If you chose, you can surrender the car and be free of any obligation to pay for it.
Can I discharge my student loans in bankruptcy?
Student loans are not dischargeable in any chapter of bankruptcy. Student loans are sometimes unenforceable due to school closures, fraud, etc. Chapter 13 can provide a way to cure defaults on student loans, or to pay them off over the course of the plan.
Can I put my assets in someone else’s name before filing?
Putting your assets in someone else’s name to keep them beyond the reach of creditors and bankruptcy trustees is not allowed. Worse, such action may lead to the denial of your discharge.
A bankruptcy trustee can recover assets transferred within one year of the bankruptcy filing where the debtor did not get reasonably equivalent value for the asset, or where the transfer was made with intent to hinder creditors. The “look back” period may be even longer under some circumstances, giving the trustee that same time period to recover assets.
If you have more assets than you can protect with the available exemptions, consider filing Chapter 13 where the debtor generally keeps all of their property and “buys back” the nonexempt value from the creditors through payments to the Chapter 13 trustee out of future income.
Even an innocent transfer without consideration can cause serious trouble.
Do I have to file bankruptcy on all accounts I owe, or can I keep some?
You must include all the debts you owe in your petition and schedules, include any debts owed to family and friends, regardless of the amount. You may opt to keep some debts by “reaffirming” the specific debt.
How long does a bankruptcy stay on my record?
Bankruptcies remain on credit reports anywhere from seven to ten years.
When can I apply for credit again?
Yes. Credit can generally be issued to anyone, however, the interest and type of credit that you will get after filing bankruptcy will greatly depend on your credit score after your bankruptcy has been discharged. A bankruptcy filing can improve your credit score by eliminating unsecured debt that holds your credit score down.
Can a creditor continue to contact me after I have filed for bankruptcy?
As soon as the bankruptcy petition is stamped “Relief Ordered” upon filing, you are immediately protected from your creditors. This is called an automatic stay. After that time, if a creditor attempts to collect a debt, immediately notify the creditor in writing that you have filed bankruptcy, and provide them with either the case name, number and filing date or a copy of the petition that shows it was filed. If the creditor still continues to collect, you may be entitled to take legal action against them.
Who lets my creditors know I have filed for bankruptcy?
The bankruptcy court notifies, by mail, all creditors advising them of:
- The filing of the bankruptcy
- The case number
- The automatic stay
- The name of the trustee assigned to the case (if filed under Chapters 7 and 13)
- The date set for the meeting of creditors
- The deadline, if any, set for filing objections to the dismissal of debts
- Whether and where to file claims
The exact information in the notice may be slightly different depending on the chapter under which the case is filed.
