EAST ST. LOUIS – Bankruptcy trustee Russell Simon of Swansea should take the first chunk of any judgment that David Hoffman of Pontoon Beach might win from a crash suit in U.S. district court, defendant Boise Cascade argued on Jan. 4.
Company counsel Dean Nichols of Chesterfield, Mo. moved for substitution, “given that plaintiff lacks standing to continue this lawsuit in his own right.”
Simon already asserted his priority in bankruptcy court.
Jerry Graham of O’Fallon filed a bankruptcy petition for Hoffman and wife Judy Hoffman in 2017.
He listed about $15,000 in assets and $90,000 in liabilities.
He listed wages of $70,000 from Union Pacific, minus $75 in monthly union dues.
Simon obtained an order for Union Pacific to pay the court $350 a month.
Graham and Simon agreed on a plan to resolve the petition, and activity at the court ended before the year did.
On Jan. 25, 2019, a collision occurred between David Hoffman’s vehicle and a Boise Cascade truck on Route 203 in Madison.
Hoffman retained Alan Pirtle of Brown and Crouppen to represent him on the accident 15 days later, according to a contract Simon would see later.
In June 2020, Simon filed a report of completion and advised bankruptcy judge Laura Grandy that the Hoffmans completed their payments to him.
The Hoffmans moved for discharge and Grandy granted it.
On Oct. 21, 2020, she entered a final decree and closed the case.
Eight days later, the Hoffmans moved to reopen the case.
“Debtors have a personal injury cause of action that took place on Jan. 25, 2019,” Graham wrote.
He wrote that they wished to amend their schedules and have the trustee administer the settlement.
Grandy reopened the case on Nov. 2, 2020, and Graham amended the schedules.
He also applied to employ Pirtle, of Brown and Crouppen, stating he and David Hoffman signed a contract to pursue a claim on a contingency basis.
Simon moved to revoke the discharge order on Nov. 24, 2020, claiming the Hoffmans obtained it by fraud.
He wrote that they provided an affidavit on June 1, 2020, stating they didn’t acquire or receive any right or interest of more than nominal value.
He wrote that the statement included any right or interest in a claim or cause of action in any civil proceeding regardless of whether or not such civil action has been commenced or settled.
He wrote that he relied on the affidavit when he reported completion.
He wrote that the Hoffmans failed to disclose the claim when it accrued and when they moved for discharge.
He wrote that they were required to disclose any asset, “in particular one that would have enabled debtors to repay their creditors more than previously provided in their confirmed plan.”
He wrote that he paid $1,096.55 on unsecured claims of $39,826.40.
On Dec. 17, 2020, Simon and Graham stipulated to revocation of the discharge.
They wrote that the Hoffmans failed to disclose a claim of unknown value and made material misstatements.
“Proceeds of the personal injury claim are disposable income that constitute a payment under debtors’ confirmed plan for the benefit of allowed general unsecured claims,” they wrote.
Grandy revoked the discharge on Dec. 23, 2020.
On that date Pirtle sued Boise Cascade, its distribution subsidiary, and truck driver Timothy Ferrell in St. Clair County circuit court.
Pirtle claimed Hoffman stopped for a red light on Route 203 at Ohio Avenue in Madison, and Ferrell drove into his vehicle from behind.
He claimed Ferrell’s ability or alertness was impaired through fatigue, illness, or other cause.
He claimed Boise Cascade forced or allowed Ferrell to operate in excess of the maximum hours allowed under federal rules.
He claimed it encouraged or required employees to violate federal rules.
On Jan. 4, 2021, Simon moved to dismiss the case with prejudice and a permanent bar to discharge.
Simon and Graham agreed that within 30 days of acceptance of a settlement or an award of damages, the Hoffmans must move for approval.
They agreed that the motion must include provisions for turning proceeds over to Simon in an amount sufficient to pay all unsecured claims.
Grandy adopted the agreement on Jan. 14, 2021.
On Jan. 15, Boise Cascade removed the injury suit to district court on the basis of diverse citizenship as an Idaho business.
Last September, Magistrate Judge Gilbert Sison held a hearing and granted Boise Cascade an independent medical evaluation of Hoffman.
He has set trial in June.
Grandy held status conferences in bankruptcy court in October and November, and plans to hold another in March.