Nursing home abuse and neglect is a terrible act against our elderly loved ones. If a loved one has been injured by the abuse or neglect of a nursing home facility then they have three years to file a lawsuit against the facility. If the neglect or abuse has resulted in death then a lawsuit would need to be filed within two years to meet the Statute of Limitations.
A nursing home abuse and neglect case is a type of medical malpractice case. These types of cases are known as a complex litigation case. The usual timeline from the date of filing a lawsuit, also known as the complaint, to settlement or trial is usually anywhere from one to three years.
You are probably asking why so long? On television programs the case goes to court within one hour. Of course, this is television, not real life.
In a real case, the attorney must first meet with the family and investigate the nursing home case. A nursing home will not allow an attorney to question their staff, before filing a lawsuit, to determine if there is a legitimate case. Therefore, the attorney must first examine the medical records. It may take several weeks to obtain these medical records. The attorney then begins to piece together what happened at the nursing home.
Next, if the attorney believes there are grounds for a medical malpractice case, under North Carolina law, they must have these records reviewed by an expert doctor and/or nurse. This will usually take at least 30 days for the expert to review the records. As you can see, we are already at about two months of time elapsed and the lawsuit has not even been filed.
If the expert doctor and/or nurse believe the nursing home staff has violated the “standard of care”, the expert will render an opinion to the attorney. At this time the attorney begins the legal process of developing a complaint or lawsuit. Depending on the complexity of the case, the Complaint that has to be drafted for the lawsuit to be filed may take several weeks.
Eventually the attorney files the lawsuit at the courthouse. The deputy sheriff must then serve the lawsuit on the nursing home. Large corporate chains own most nursing homes making it difficult, at times, to determine the appropriate party to be served. After being served, the nursing home retains defense counsel. The defense counsel usually files an extension to “answer” the lawsuit. This usually takes about another 60 days.
At this time the discovery process begins. This is when expert witnesses, such as doctors and nurses, and the staff of the nursing home are questioned under oath at what is known as a deposition. Again, depending upon the complexity of the case this could take a year to complete. By now we are up to least 18 months since the family first met with the attorney.
Eventually the court will schedule mediation. Mediation is an attempt to settle the case before trial. This will usually take place several months after the discovery process ends. At mediation, both the plaintiff and the defendant meet with a mediator to try to resolve the case without the time and expense of a trial. Many times mediation is successful and the case is settled. Sometimes mediation is unsuccessful and the case would then proceed to trial several months later. A typical trial may last anywhere from one to four weeks.
As you can see, the wheels of justice roll slowly. We have an imperfect and often times slow justice system but there is no doubt it is the best in the world. Knowing the timeline of a typical nursing home abuse case is important when determining how you want to move forward to obtain the justice your loved one deserves.
These are common questions that many people have about bankruptcy. In an effort to provide you with information we have provided these frequent questions. However, it is important to realize that each state has different rules and these answers are not meant to be legal advice. Contact a bankruptcy attorney to learn more.
Although, it’s important to keep statements that you receive in the mail regarding your debts, you should also consider obtaining a credit report.
For many people, it is difficult to remember original creditors, collections agencies, amounts owed, and so on from years past. A credit report is a great way to visually see all of your debts listed out for you, especially if you did not keep statements. Our recommendation would be to look at your statements first, then back it up with a credit report. For many people, this will cover your bases in regards to who you owe, but remember this does not guarantee to be all of your creditors. This is why it’s important to keep up with your statements and also view your free credit report yearly. By doing this, it allows you to see whom you owe, if it’s accurate, and when and where the debt was incurred.
You are entitled to a free credit report every 12 months from www.AnnualCreditReport.com. It is one of the only legitimately free places to obtain a credit report. It will not, however, give you your actual credit score. Use this website, if you have not already done so in the past 12 months, to view your debts and names of your creditors. We recommend checking this annually so you can be sure the creditors on your report are accurate. When filing bankruptcy, it is essential that all of your creditors are listed, so be sure to use both statements and a credit report to back up what you already know regarding your debt.
It’s also a good idea to be sure you get your free credit report again a few months after you file bankruptcy. It will help you rebuild your credit after bankruptcy.
The court may dismiss your Chapter 13 bankruptcy if you fail to make payments to the Trustee or if your debts exceed your ability to pay. If your bankruptcy is dismissed by the court you will be responsible for all your debts and the creditors may proceed with collection actions against you as well as proceed with foreclosure and/or repossession.
Each month the Trustee receives a payment from you, he will distribute payments to your creditors based on a priority as established by the Chapter 13 plan. If you do not make a payment to the Trustee, he will not distribute payments to your creditors.
These are common questions that many people have about bankruptcy. In an effort to provide you with information we have provided these frequent questions. However, it is important to realize that each state has different rules and these answers are not meant to be legal advice. Contact a bankruptcy attorney to learn more.
Now I know most people will look at this question like, “why in the world would I want to keep my cards if I’m eliminating my debt?!” But occasionally, you will have one company in which you are still in good standing and will want to keep that card in hopes of somewhat holding on to what bit of credit that you have left. It’s just not as simple as that.
Have you ever been in a wreck? The next few days following the wreck, you will be bombarded with advertisements from attorneys claiming that they can help you in whatever service you may need from being in the accident. Many wonder how they even knew about the wreck in the first place! Well filing bankruptcy is a similar situation, once you file it is public knowledge and your creditors, whether they were included in the bankruptcy or not, will likely find out about the bankruptcy and will cut the usage of your account off. Most creditors’ fear violating the bankruptcy’s automatic stay so they will discontinue usage of the credit card. So in the situation of a credit card in which you wish to keep, you may have never missed a payment and have been in good standing and they will still cut the usage of the card off, which is why we recommend that you list ALL of your debts.
Should you wish to try to keep a credit card out of the bankruptcy and wish to continue making the payment, then you need to contact that credit card company and give them a heads up on what your intentions are and ask for permission to have that card be kept out of the bankruptcy filing. It will be completely and solely the discretion of the company whether or not they allow you to keep the card out of the bankruptcy and continue to make the payments, and report the standing to the credit reporting agencies.
If you don’t list down a credit card, with the hopes of keeping it, and then after filing the bankruptcy they shut it down anyways, you are still responsible for the debt. For example, if you have a Visa credit card with Wal-Mart and you talk with Visa and explain you are filing bankruptcy and they say they will allow you to keep the card but, after filing, they still shut it down, you are responsible for any remaining balance on the card. You may still be able to go back and amend the bankruptcy after the credit card company refuses to allow you to keep the card but there will be court costs involved in amending the bankruptcy.
Again, we always encourage our clients to list down all of their debts. You can rebuild your credit after bankruptcy and in order to get your fresh financial start it usually means wiping out all of your debts.
You must disclose all of your assets when you file bankruptcy, regardless of whether you file Chapter 7 bankruptcy or Chapter 13 bankruptcy. If you do not disclose all of your assets, they cannot be protected from the bankruptcy court and your creditors.
Let us begin by giving a brief over view of the term cash advance. Many of us have heard the term but don’t know exactly what it means. A cash advance is often referred to as a payday loan. A cash advance can be obtained through a credit card or charge card issuer. It is seemingly a loan taken out against a credit card that you already have. Those with a credit card and cash advance service are able to receive cash from an ATM, bank, or some other financial institution. This really depends on the type of credit card and whether their cash advance services are available. Many people often confuse the advance as free money, but it is certainly not. This has to be paid back to the creditor and one of the biggest challenges is the high interest. The interest on a cash advance tends to be much higher when obtaining it through a credit card. You are not able to take out a cash advance for the full available balance on the credit card. However, this doesn’t mean that you aren’t going to be charged high amounts of interest on the loan. This will cause the monthly payments on the credit card to eventually increase.
Generally speaking, cash advances made within 90 days of filing bankruptcy are not going to be wiped out. Cash advances within 90 days of filing not only pose a problem with court, but also the creditor, who could potentially seek an adversary proceeding.
Keep in mind, the Chapter 13 bankruptcy is also recognized as a repayment plan. In a Chapter 13 bankruptcy it isn’t likely that a creditor will file an adversary proceeding against you because of a cash advance. However, this doesn’t mean that a creditor can’t file an adversary proceeding if they choose to. The creditor may also have the option of objecting to confirmation of your Chapter 13 Plan, if your Plan does not to propose to repay the amount of the advance back to the creditor with whom you took the cash advance. This is obviously up to the creditor who the cash advance was taken out with. The most important thing to remember is generally speaking, cash advances within 90 days of filing may pose a problem with the bankruptcy court. For example, if you decide to file a Chapter 13 bankruptcy and have taken out a cash advance within 90 days preceding the filing, the court is going to look for any fraudulent behavior. If you took out a cash advance knowing that you were going to file bankruptcy, then you are going to have a tough time arguing that it was not fraudulent behavior. If it’s possible to wait, then the longer you wait after having taken out a cash advance to file, the better. Many people facing tough financial situations are already feeling stressed, there is no need to add something else to the mix.
Since a Chapter 7 bankruptcy is different than a Chapter 13, and not a repayment plan, we will focus on a couple of different points. If the cash advance was made within 90 days of filing, the debt is most likely not going to be wiped out in a Chapter 7 bankruptcy. First of all, it looks suspicious to the courts when a recent cash advance was made before the filing. This may also pose a problem with the creditor who may decide to pursue an adversary proceeding for a cash advance that was made around the same time as the filing of the bankruptcy. An adversary proceeding is also known as a lawsuit in bankruptcy court. If the cash advance was made well past the 90 days, then there is a possibility of the debt being wiped out. This would depend on a couple of things, timing and amount. A large cash advance taken out shortly before filing bankruptcy is obviously going to look suspicious. The courts are not only going to look at the amount, but also the timing between the actual withdrawal and filing of the bankruptcy. As mentioned above, the longer you are able to wait to file the bankruptcy, the better.
If you have any questions about any cash advances you have taken out in the last year, you should speak with your bankruptcy attorney. If you are contemplating filing bankruptcy, it is best not to take out any cash advances.
