When you file bankruptcy, you are doing so in order to grab a hold of a financial life preserver to save you from drowning in debt. Most people know, however, that some debts owed will not be discharged in bankruptcy. For example, domestic obligations, taxes and student loans are largely non-dischargeable.
Another category of debts that might not be discharged arise from driving while intoxicated. The applicable section of the bankruptcy code, 11 U.S.C. 523(a)9, states that debts will not be discharged if it is related to the "death or personal injury caused by the debtor's operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance".
Bankruptcy Lawyer NYC, North Dakota Bankruptcy Lawyer, Bankruptcy Attorney Pittsburgh,
This language has changed over time as Congress alters the law as it sees fit to change which debts are and are not dischargeable. But the four little words that matter here are intoxicated, caused, death and personal injury.
Now these debts survive the bankruptcy automatically. The victim need not do anything to protect their rights. If a debtor wishes to discharge a debt, he will have to ask the court for an order saying that the debt is discharged based on one of the elements not being met.
Was the debtor intoxicated? Naturally, each state is going to have their own legislative and judicial history on this subject so it will vary depending on where you live.
There are decisions where a court found a debtor to be intoxicated even though there was no criminal charge or even a breath test. Another decision found a debt dischargeable because the victim did not show that the debtor was intoxicated.
Still a third case resulted in a finding of intoxication when the state had accepted a plea for reckless driving down from a DUI. The point is the evidence needs to show the debtor was not intoxicated if he hopes to rid himself of the obligation to pay this debt.
A second avenue for the debtor to have this debt discharged is to show the debt doesn't relate to a death or personal injury suffered by someone.
Debts relating to property damage will be discharged. A state charging you an extra fee as a consequence of an incident in which you were driving while intoxicated will also likely be discharged in bankruptcy.
A third pathway to a discharge of this type of debt lies in causation. A debtor must have caused the death or personal injury while intoxicated. All sorts of variables exist in each accident that makes it difficult to generalize about which debts will be discharged.
The obvious goal of this law is to stop someone from benefiting from a bankruptcy after killing or hurting someone while driving under the influence. If you get drunk, then go for a ride and hit a pedestrian and that person dies, then it would be a pretty simple analysis.
But it is entirely possible, even likely, that additional circumstances will exist that make it difficult to predict the outcome. Another person can be at fault, or even intoxicated in the accident.
The weather or street conditions can be viewed as a partial cause of the accident. Any number of circumstances might exist in your situation that makes causation a murky element.
If you are in bankruptcy and have a debt that falls under the purview of section 523(a)9, you are in a very difficult situation. A discussion with an attorney, however, about pursuing pathways to declaring it discharged would be in your best interests.
Bankruptcy Lawyers In Nashville TN
Is Bankruptcy Right For You? Talk to Bankruptcy Attorneys Free and Confidential. Licensed bankruptcy attorneys are available. Attorneys will call you to discuss your case for free. Find out if bankruptcy is right for your situation.
Rating of Bankruptcy Lawyers In Nashville TN
Get Online Application at online Bankruptcy Lawyer.
0 comments:
Post a Comment