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Motion to Retain Insurance Proceeds


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5/30/2012
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A Chapter 13 Bankruptcy generally lasts for a period of five years.  As we all know a lot can change in a five year period.  Over the course of five years debtors may marry, have children, need to purchase a vehicle, or even suffer damage to a home or vehicle already owned.  If a debtor becomes entitled to insurance proceeds while in bankruptcy he should notify his attorney as soon as possible.
 
The general rule is that if a debtor becomes entitled to any sum of money it must be turned over to the bankruptcy trustee to be distributed to creditors.  Common sources of money that need to be disclosed, and potentially turned over, include money or property from an inheritance, tax refunds, insurance proceeds and so on.  As a rule of thumb, if you receive any money you should inform your attorney.
 
If you want to keep the money that you are entitled to you can file a motion to retain the proceeds.  This will have to be submitted to the court and it is generally set on negative notice.  This means that your attorney will submit your motion to retain and if no one objects to the motion within 21 days you will be able to keep the money received.  Any number of people may object, including the trustee and/or one of your creditors. 
 
It is important to note that if you receive insurance proceeds for property, i.e. a vehicle, and there is a total loss any existing loan balance has to be paid off before any funds would be released to you if your motion to retain is successful. 
 
If you would like to retain insurance proceeds your attorney will need a number of things to prepare your motion to retain.  Your attorney will need to know how much money you will be receiving for the property.  If the property is not a total loss and just needs repairs your attorney will need to know the estimated cost of repairs.  It is best if you can provide a written estimate from a qualified individual to your attorney to file with the motion.  If the property is a total lose (i.e. a vehicle that you are not keeping) your attorney will need to know how you intend to spend the money received.  Perhaps you need to replace your vehicle.  Again, it is best to provide written figures for how you will spend the money.  If you would like to purchase a new car with a loan your attorney will also need to submit a motion to incur debt.
 
Please keep in mind that this process will take time.  The motion will be submitted and it will be at least 21 days before a decision is made. From there your attorney will have to submit an order and the judge will need to sign the motion.
 
If you have questions, or would like to set up a free consultation, contact a St. Louis Bankruptcy Attorney today.



Category: Bankruptcy


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