§ 46.11 — Causes of Action—Including Judicial Estoppel Issues
Revised: May 21, 2004
Whether arising before or after the petition, a Chapter 13 debtor’s causes of action are property of the estate.1 For example, a Chapter 13 debtor’s tort action for medical malpractice is property of the estate.2 A debtor’s cause of action for employment discrimination is property of the estate.3 The collection of fees for personal services by the debtor after the petition is a cause of action that passes to the Chapter 13 estate.4 A Chapter 13 debtor’s cause of action against a lender for fraud and misrepresentation in connection with credit life insurance included in a prepetition loan agreement is property of the estate.5 Similarly, a debtor’s cause of action against a lender for failure to provide the written notice of sale required by state law with respect to a repossessed automobile is property of the Chapter 13 estate.6 A Chapter 13 debtor’s § 523(a)(15) adversary proceeding against a former spouse to determine the dischargeability of debt is property of the estate, and any recovery would become property of the estate.7 Settlement proceeds from the debtor’s postpetition action for violation of the automatic stay are property of the Chapter 13 estate.8
The general rule that causes of action become property of the Chapter 13 estate is subject to exceptions at confirmation. Depending on the rule in the jurisdiction with respect to the vesting effect of confirmation under § 1327(b),9 some or all of a debtor’s causes of action, even if properly characterized as property of the estate at the petition, will vest in the debtor at confirmation and cease to be property of the estate. Similarly, causes of action arising after confirmation may or may not become property of the Chapter 13 estate in the first instance, depending on the effect of confirmation.10
There is some controversy in the case law whether the debtor or the trustee is the proper party to continue litigation that becomes property of the Chapter 13 estate. Some courts have observed that a debtor’s prepetition cause of action is appropriately maintained by the Chapter 13 trustee after the petition, unless the debtor exempts the lawsuit or reserves control through the confirmed plan.11 This controversy is somewhat hard to understand because only the debtor can use property of the Chapter 13 estate12 and, at least until confirmation, the Code vests possession of all estate property in the debtor, not in the trustee.13 It is not obvious how the debtor could exclusively use and possess a lawsuit and yet not be the party responsible for prosecuting the lawsuit during the Chapter 13 case.14
A fascinating twist on the question whether a cause of action is property of the Chapter 13 estate was kicked off by the appellate courts of Georgia in 1999. Lucille Wolfork filed a Chapter 13 petition in 1994. In 1995, Wolfork was injured in a car accident. In 1997, Wolfork sued the drivers of the other cars for negligence. While that suit was pending, Wolfork received a discharge in her Chapter 13 case. After that discharge, a defendant in the negligence action moved for summary judgment on the ground of judicial estoppel. As explained by the Georgia Court of Appeals, the defendant was entitled to summary judgment because Wolfork was judicially estopped from maintaining a cause of action that was not disclosed during the Chapter 13 case:
In a Chapter 13 bankruptcy case, property of the estate also includes all property acquired by the debtor during the bankruptcy proceeding. . . . A tort claim in favor of the debtor arising after the filing of the Chapter 13 bankruptcy petition but before the bankruptcy is closed is considered after-acquired property that is part of the estate. . . . The duty to amended Chapter 13 bankruptcy schedules is clear. A debtor may not conceal property belonging to the estate. . . . A debtor has an affirmative duty to supplement the list of assets with any claims arising during the pendency of the bankruptcy proceeding. . . . Failure to timely amend or supplement the list of assets amounts to a denial that such a claim exists. . . . Because Wolfork failed to supplement her Chapter 13 bankruptcy petition with the postpetition tort claim, she is barred by the principle of judicial estoppel from pursuing her claim after the bankruptcy proceeding was closed.15
News of Wolfork spread quickly—perhaps most quickly across the insurance defense bar. The U.S. Court of Appeals for the Eleventh Circuit has twice applied judicial estoppel after Wolfork to preclude a debtor from litigating a claim that was unrevealed during a Chapter 13 case.16
Commentators were quick to point out that the Georgia courts used an odd configuration of the judicial estoppel concept and may have been misled by a superficial understanding of Chapter 13 bankruptcy.17 Several decisions reported after Wolfork have more carefully analyzed judicial estoppel to conclude that the failure to schedule a cause of action during a Chapter 13 case is not always an “inconsistent position” that triggers estoppel in subsequent litigation.18 Several bankruptcy courts have reported decisions whether reopening a Chapter 13 case to an unrevealed cause of action overcomes the judicial estoppel analysis of Wolfork.19
Although the holding in Wolfork is questionable, the message is clear: Don’t take chances with the (non)disclosure of causes of action in Chapter 13 cases. The possibility that a pre- or postpetition cause of action will be property of the Chapter 13 estate should inspire debtor’s counsel to carefully explain to debtors the need to reveal any potential actions that arose before the petition or that arise during the Chapter 13 case. Counsel should always amend the schedules and statement to reveal an omitted cause of action, reopening a closed Chapter 13 case, if necessary, to add the missing information.
1 Fleet v. United States Consumer Council, Inc., 53 B.R. 833 (Bankr. E.D. Pa. 1985) (Debtors’ causes of action, whether they arise prepetition or postpetition, are property of the Chapter 13 estate by virtue of § 1306(a).).
2 Medina-Figueroa v. Heylinger, 63 B.R. 572 (D.P.R. 1986). Accord Cabral v. Shamban (In re Cabral), 285 B.R. 563, 579 n.6 (B.A.P. 1st Cir. 2002) (Property of the estate in a Chapter 13 case “includes a debtor’s claim for personal injuries whether the claim is unliquidated or settled at the time of filing the bankruptcy petition.”); In re Martinez, 293 B.R. 387, 390 (Bankr. N.D. Tex. 2003) (“As of the commencement of the case, the personal injury claim became property of the estate by virtue of section 541 of the Code. . . . [B]ecause the personal injury claim was successfully exempted in its entirety, the claim and its proceeds ceased to be property of the estate, instead becoming property of the debtor.”); In re Graham, 258 B.R. 286 (Bankr. M.D. Fla. 2001) (Cause of action for personal injury from accident that occurred after the petition becomes property of the Chapter 13 estate; settlement proceeds received two years later are also property of the estate but are not captured for distribution to creditors because the cause of action was exempted by the debtor.); Travelers Indemnity Co. of Illinois, Inc. v. Griner (In re Griner), 240 B.R. 432 (Bankr. S.D. Ala. 1999) (Prepetition lawsuit against insurance company for failure to treat a work related injury is property of the Chapter 13 estate.); In re Studer, 237 B.R. 189, 192 (Bankr. M.D. Fla. 1998) (Proceeds from settlement of postpetition car accident are property of the Chapter 13 estate and are captured for creditors on trustee’s postconfirmation motion to modify the plan. “Because the Settlement Proceeds were received prior to the entry of the Confirmation Order, the proceeds clearly should have been included in distributions to creditors. Unfortunately, in this case, the Debtors were not timely or forthcoming in informing the Trustee of the Settlement Proceeds, and the Confirmation Order was entered before an appropriate determination was made as to whether the Settlement Proceeds should alter the Debtors’ disposable income.” Evidentiary hearing ordered to determine what portion of the settlement proceeds must be paid to creditors.).
3 Richardson v. United Parcel Serv., 195 B.R. 737 (E.D. Mo. 1996). Accord Cable v. Ivy Tech State College (In re Cable), 200 F.3d 467 (7th Cir. 1999) (Debtor’s ADA action is property of the Chapter 13 estate after conversion from Chapter 7 and the debtor has standing to prosecute the suit for the benefit of creditors in the Chapter 13 case.); Donato v. Metropolitan Life Ins. Co., 230 B.R. 418, 421 (N.D. Cal. 1999) (Cause of action for employment discrimination that arose after the petition is property of the Chapter 13 estate; debtor is not judicially estopped to continue lawsuit despite failure to schedule. “In a Chapter 13 case, the property of the estate includes causes of action that arise after the commencement of the case and until the case is closed, dismissed or converted. . . . If the debtor is not knowledgeable of all the facts giving rise to a civil action before the filing of his or her petition and financial schedules, the debtor must amend those schedules when he or she becomes aware of the existence of the action because it is an asset of the bankruptcy estate.”); Rivera v. Proctor (In re Rivera), 186 B.R. 505, 507 (D. Kan. 1995) (Debtor’s postconfirmation lawsuit against an employer for wrongful termination is property of the estate, is a “related to” proceeding, and can be tried upon withdrawal of the reference in the U.S. District Court. “Although Rivera’s § 1983 claim arose postpetition and after confirmation of the plan, under Chapter 13, ‘[p]roperty of the type specified in [11 U.S.C.] section 541 that a debtor acquires after the commencement of the case but before conversion, dismissal or closing of the case, is also property of the estate.’”).
4 Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513 (2d Cir. 1998).
5 American Gen. Fin., Inc. v. Tippins (In re Tippins), 221 B.R. 11 (Bankr. N.D. Ala. 1998). Accord Beasley v. Personal Fin. Corp. (In re Sanders), 279 B.R. 523 (S.D. Miss. 2002) (Prepetition lawsuit against lender for misconduct in connection with the sale of insurance is property of Chapter 13 estate; failure to schedule the lawsuit is evidence of abuse sufficient to justify denying the debtor’s motion to be voluntarily dismissed from the lawsuit.); Campion v. Credit Bureau Servs., Inc., 206 F.R.D. 663 (E.D. Wash. 2001) (Debtor’s interest in class action against Credit Bureau Services, Inc., for misrepresentations in connection with the issuance of writs of garnishment is property of the Chapter 13 estate and remains in the debtor’s possession or control.).
6 Koresko v. Chase Manhattan Fin. Servs., Inc. (In re Koresko), 91 B.R. 689 (Bankr. E.D. Pa. 1988).
7 Michael v. Forcier (In re Forcier), Nos. 02-10670, 02-1050, 2003 WL 22846359 (Bankr. D. Vt. Nov. 26, 2003) (unpublished).
8 In re Furgeson, 263 B.R. 28 (Bankr. N.D.N.Y. 2001).
9 See § 230.1 [ 11 U.S.C. § 1327(b): Vesting Effect on Property of Estate ] § 120.3 11 U.S.C. § 1327(b): Vesting Effect on Property of Estate.
10 See § 230.1 [ 11 U.S.C. § 1327(b): Vesting Effect on Property of Estate ] § 120.3 11 U.S.C. § 1327(b): Vesting Effect on Property of Estate. See, e.g., In re Ross, 278 B.R. 269 (Bankr. M.D. Ga. 2001) (Applying Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001), because a tort claim that arose after confirmation is not property of the Chapter 13 estate, the debtor had no duty to disclose the postconfirmation claim and thus no reason to reopen the closed Chapter 13 case to overcome judicial estoppel.); In re Brown, 260 B.R. 311, 313 (Bankr. M.D. Ga. 2001) (Cause of action for personal injuries in an automobile accident after confirmation does not become property of the Chapter 13 estate because under Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001), “after confirmation, all that remained as property of the estate was the income required for plan payments. Everything else was property of the debtor.”); In re Carter, 258 B.R. 526 (Bankr. S.D. Ga. 2001) (Cause of action for injuries from an automobile accident that occurred three years after confirmation of a 100% plan did not become property of the estate under Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001).). See also In re Tomasevic, 279 B.R. 358, 362 (Bankr. M.D. Fla. 2002) (Action against bank for postpetition violations of Real Estate Settlement Procedures Act is not within jurisdiction of the bankruptcy court under Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001). Confirmed plan provided that debtor would make payments directly to second mortgage holder “outside the plan.” “The bankruptcy court has no jurisdiction over ‘litigation that would not impact upon the administration of the bankruptcy case, or on property of the estate, or on the distribution to creditors.’ . . . The debtor’s motion . . . for sanctions for Wilshire’s alleged violations of RESPA falls into this last category. It concerns post-petition disputes between the debtor and Wilshire that do not impact or impair the court’s administration of the bankruptcy case. These disputes have no connection with the debtor’s performance or payment under the debtor’s Chapter 13 plan. In addition, these disputes implicate no issue with respect to property of the estate. See Telfair . . . . Finally, the motion does not implicate any issue that impacts or impairs distribution to creditors. Wilshire is not being treated in the plan, and this dispute therefore does not affect the debtor’s payments to other creditors under the plan.”).
11 See Richardson v. United Parcel Serv., 195 B.R. 737 (E.D. Mo. 1996) (Debtor’s cause of action for employment discrimination is property of the Chapter 13 estate. Chapter 13 trustee steps into the shoes of the debtor for purposes of maintaining suit. Debtor’s failure to schedule the cause of action as an asset could judicially estop the debtor from maintaining the lawsuit, but creditors would be penalized if the court dismissed the claim to punish the debtor.); American Gen. Fin., Inc. v. Tippens (In re Tippens), 221 B.R. 11 (Bankr. N.D. Ala. 1998) (Chapter 13 debtor’s state court cause of action against lenders for fraud, misrepresentation and conspiracy in connection with credit life insurance included in prepetition loan agreement is property of the estate and would ordinarily be maintained by the Chapter 13 trustee; however, debtor amended schedules to reveal the lawsuit after confirmation and claimed the lawsuit as exempt property, thus debtor had a property interest in the lawsuit and had standing to maintain the lawsuit.). See also Showalter v. Rinard, 126 B.R. 596, 600 (D. Or. 1991) (Chapter 13 debtor’s tort action against driver of a car “cannot be properly viewed . . . as property of his bankruptcy estate.” Personal injury claim was listed as personal property on the debtor’s statements and schedules; however, provision of confirmed plan vested the cause of action in the debtor free and clear of claims of creditors or the trustee.).
12 11 U.S.C. § 1303, discussed in § 44.1 [ Debtor Has Exclusive Control of Estate Property ] § 45.1 Debtor Has Exclusive Possession and Control of Estate Property.
13 11 U.S.C. § 1306(b), discussed in § 52.1 [ Turnover of Property ] § 50.1 Turnover of Property.
14 See § 54.1 [ Can Debtor Sue and Be Sued? ] § 51.1 Can Debtor Sue and Be Sued? for discussion of a Chapter 13 debtor’s right to sue and be sued.
15 Wolfork v. Tackett, 526 S.E.2d 436, 437–38 (Ga. Ct. App. 1999), aff’d, 540 S.E.2d 611 (Ga.), cert. denied, 534 U.S. 819, 122 S. Ct. 51, 151 L. Ed. 2d 21 (2001). Accord Back v. Cloverdale, No. TH 99-215-C-T/H, 2001 WL 987832, at *3 (S.D. Ind. July 30, 2001) (unpublished) (Debtor’s failure to list civil rights action in prior Chapter 13 case judicially estops the debtor from bringing civil rights action notwithstanding filing of second Chapter 13 petition in which the civil rights action is revealed. Debtor did not list civil rights action in the Chapter 13 statement and schedules. Chapter 13 case was converted to Chapter 7. A no-asset report was filed, and the debtor received a discharge. After discharge, debtor brought the civil rights action in district court. On the defendant’s motion, the civil rights action was dismissed with prejudice. Debtor filed a second Chapter 13 petition listing the civil rights action and confirmed a plan providing that the net proceeds from the civil rights action would be paid to the Chapter 13 trustee. Debtor then moved under Fed. R. Civ. P. 60(b)(5) for relief from the district court order dismissing the civil rights action. “Numerous courts have applied judicial estoppel to bar a party from asserting a claim where the party knew of the claim but failed to disclose it in a bankruptcy proceeding. . . . The reopening of a closed bankruptcy case to disclose a claim previously known but not disclosed as an asset does not render judicial estoppel inapplicable. . . . [J]udicial estoppel bars [the debtor] from asserting his civil rights claim . . . . [The debtor’s] assertion of a claim against Defendants in this case is inconsistent with his position in the prior bankruptcy proceeding that he had no assets; [the debtor] obtained relief in that bankruptcy case on the basis of his representation of no assets; and the facts regarding the claim are the same in this case as in the bankruptcy case.”).
16 De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1292 (11th Cir. 2003) (Applying Billups v. Pemco Aeroplex, Inc. (In re Burnes), 291 F.3d 1282 (11th Cir. 2002), discrimination claims against former employer are barred by judicial estoppel notwithstanding amendment to Chapter 13 schedules to reveal the prepetition cause of action. “[W]e hold that the rule established in Burnes, that judicial estoppel bars a plaintiff from asserting claims previously undisclosed to the bankruptcy court where the plaintiff both knew about the undisclosed claims and had a motive to conceal them from the bankruptcy court, applies equally in Chapter 13 bankruptcy cases. . . . Despite De Leon’s continuing duty to disclose all assets or potential assets to the bankruptcy court, he did not amend his bankruptcy documents to add a potential employment discrimination claim until after Comcar relied on it in its motion to dismiss the case. . . . Because De Leon certainly knew about his claim and possessed a motive to conceal it because his amount of repayment would be less, we can infer from the record his intent ‘to make a mockery of the judicial system.’”); Billups v. Pemco Aeroplex, Inc. (In re Burnes), 291 F.3d 1282, 1288 (11th Cir. 2002) (Failure to reveal employment discrimination lawsuit filed during Chapter 13 case judicially estops debtor from seeking damages after conversion from Chapter 13 to Chapter 7; injunctive relief “offered nothing of value to the estate” and could proceed. Six months after Chapter 13 petition, debtor filed charge of discrimination with EEOC. Debtor did not amend schedules or statement to include lawsuit before or after conversion to Chapter 7. Citing New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001), “the doctrine of judicial estoppel applies in situations involving intentional contradictions, not simple error or inadvertence. . . . Billups had knowledge of his claims during the bankruptcy proceedings. . . . Billups stood to gain an advantage by concealing the claims from the bankruptcy court. . . . [D]isclosing this information would have likely changed the result of his bankruptcy . . . . Allowing Billups to back-up, reopen the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing them. This so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtors’ assets.”).
17 Louis M. Phillips, Continuing Ruminations on Judicial Estoppel: Barging Into the Consumer Field, 2 Norton Bankr. L. Adviser 10 (2004); Louis M. Phillips, Judicial Estoppel: Is It Krystal Clear Now?, 12 Norton Bankr. L. Adviser 1 (2003); William H. Brown & Lundy Carpenter, Judicial Estoppel in State Courts: A Sequel, 2 Norton Bankr. L. Adviser 8 (2002); William H. Brown & Donna T. Snow, Judicial Estoppel in State Courts: One More Thing for Debtor’s Counsel to Worry About, 1 Norton Bankr. L. Adviser 4 (2001).
18 See In re Ross, 278 B.R. 269, 273–75 (Bankr. M.D. Ga. 2001) (Judicial estoppel is not implicated when Chapter 13 debtor failed to schedule a tort claim that arose after confirmation because, applying Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001), the debtor had no duty to disclose the postconfirmation claim. Plan was confirmed in 1998. Debtor was involved in a car accident in 1999. Schedules were not amended. Case was dismissed for nonpayment. Debtor moved to reopen when judicial estoppel was raised as a defense in state court lawsuit. “Under [Wolfork v. Tackett, 540 S.E.2d 611 (Ga.), cert. denied, 534 U.S. 819, 122 S. Ct. 51, 151 L. Ed. 2d 21 (2001)], a debtor’s tort claim may be barred by judicial estoppel if she successfully asserted a contradictory position in bankruptcy court, i.e., if she failed to schedule the claim. . . . [A] state court should not assume that merely because the court confirmed a plan or granted a discharge to the debtor that it was aware of and adopted a particular position asserted by the debtor as set out in the schedules. . . . When dealing with a claim arising post-confirmation in a Chapter 13 case, the Court has not, by having previously confirmed the Chapter 13 plan, adopted a position taken by the debtor that contradicts a position the debtor takes in state court by asserting that claim. The law in the Eleventh Circuit is settled that assets acquired post-confirmation are not property of the bankruptcy estate unless they are necessary to maintain the plan. . . . Because Debtor has no duty to disclose the tort claim to the Court, the Court has no reason to allow Debtor to reopen her case to make such a disclosure. Stated another way, nondisclosure of the claim in the bankruptcy case is not inconsistent with asserting the claim in another forum.”); In re Brown, 260 B.R. 311, 313 & n.3 (Bankr. M.D. Ga. 2001) (Cause of action for personal injuries in an automobile accident after confirmation does not become property of the Chapter 13 estate because under Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001), “after confirmation, all that remained as property of the estate was the income required for plan payments. Everything else was property of the debtor.” The personal injury claim is not exemptable because it is not property of the Chapter 13 estate. In a footnote, the court cautions that it is not addressing whether amending the schedules to reflect the tort claim is necessary to avoid the judicial estoppel imposed in Wolfork v. Tackett, 540 S.E.2d 611 (Ga.), cert. denied, 534 U.S. 819, 122 S. Ct. 51, 151 L. Ed. 2d 21 (2001). “The extension of the holding of Telfair in this case . . . is at odds with the understanding of the Georgia Supreme Court in Wolfork that a Chapter 13 debtor’s disposable income, including income from claims acquired after confirmation and before the case is closed, is to be used to pay creditors.”); In re Carter, 258 B.R. 526, 527–28 (Bankr. S.D. Ga. 2001) (On debtors’ motion to reopen a closed Chapter 13 case, cause of action for injuries from an automobile accident that occurred three years after confirmation of a 100% plan did not become property of the estate under Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001); debtors need not fear judicial estoppel in state court litigation because it is not necessary to amend the schedules to reflect the lawsuit that was not property of the estate. “The doctrine of judicial estoppel does not apply in this case because the debtors have not asserted a position in one judicial proceeding which is inconsistent with a position asserted in an earlier judicial proceeding. At the time the debtor’s case and schedules were filed no tort claim existed. At the time the tort claim arise, the debtors’ plan was already confirmed and all property that was not necessary for the maintenance of the plan became property of the debtors and no longer property of the bankruptcy estate. . . . In Telfair, the court adopted the ‘estate transformation’ approach as the law of the Eleventh Circuit, whereby Bankruptcy Code § 1306(a)(2) and 1327(b) are read to mean that ‘the plan upon confirmation returns so much of that property to the debtor’s control as is not necessary to the fulfillment of the plan.’ . . . Applying Telfair, any property interest acquired by the debtors after November 21, 1995, not necessary to fulfill the plan, became property of the debtors. The tort claim arose in October 1998, almost three years after confirmation and was not necessary for the plan; therefore, the claim was not property of the bankruptcy estate. . . . The tort claim belongs to the debtors and not the bankruptcy estate.”); Johnson v. Si-Cor, Inc., 28 P.3d 832, 835–37 (Wash. Ct. App. 2001) (Failure to disclose postpetition claim against McDonald’s for tooth broken on stone in sandwich does not preclude cause of action because debtor was not obligated to disclose, debtor was not benefited by nondisclosure and bankruptcy court did not adopt debtor’s nondisclosure. A month after filing Chapter 13, debtor broke a tooth on a small stone in a McDonald’s breakfast sandwich. Debtor did not amend schedules. Plan was confirmed but case converted to Chapter 7. After discharge, debtor brought lawsuit against McDonald’s. “[J]udicial estoppel applies only if a litigant’s prior inconsistent position benefited the litigant or was accepted by the court. . . . Under the right circumstances, Chapter 13 of the bankruptcy code may present a strong case for the application of judicial estoppel. . . . [I]f the debtor wrongfully failed to disclose a personal injury asset that would have affected the liquidation analysis, judicial estoppel should preclude the debtor from subsequently litigating the personal injury claim. . . . [Section] 541(a)(5) does not include other interests acquired by the debtor after the commencement of the case, such as Mr. Johnson’s claim against McDonald’s. . . . [O]ther property acquired by the debtor after the commencement of a Chapter 13 case may be retained by the debtor and would not be available for distribution to unsecured creditors in the event of Chapter 7 liquidation. . . . . There is no evidence that when the bankruptcy court confirmed the Chapter 13 plan, it somehow accepted a position that was inconsistent with Mr. Johnson pursuing his personal injury lawsuit against McDonald’s. Likewise, there is no evidence that Mr. Johnson somehow received a benefit by not disclosing his claim against McDonald’s. . . . The existence of a post-petition personal injury claim, which would not have been property of the Chapter 7 estate or available for distribution to unsecured creditors, would not have been relevant to the bankruptcy court’s decision either to close the case or to grant Mr. Johnson a discharge.”).
19 See In re Ross, 278 B.R. 269 (Bankr. M.D. Ga. 2001) (Although a dismissed Chapter 13 case can be reopened under § 350(b) to reveal a tort claim that arose after confirmation, applying Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001), the debtor had no duty to disclose the postconfirmation claim, and thus there is no reason to reopen.); In re Tarrer, 273 B.R. 724, 733 (Bankr. N.D. Ga. 2001) (Chapter 13 discharged and closed in 2000 is reopened in 2001 to permit debtors to amend schedule of assets to reveal prepetition lawsuit after defendant raised judicial estoppel; debtors also agreed to amend plan to pay discharged creditors from any recovery. “Georgia courts have recognized that such an amendment effectively nullifies the original position taken in the bankruptcy case, and therefore, the failure initially to list the asset cannot serve as the basis upon which the second court applies the doctrine of judicial estoppel. See . . . Jowers v. Arthur, 245 Ga. App. 68, 537 S.E.2d 200, 202 (2000) . . . . However, at least one federal district court has found that the debtor’s request to amend his schedules came too late to rectify the earlier inconsistency. See Scoggins v. Arrow Trucking Company, 92 F.Supp.2d 1372, 1376 (S.D. Ga. 2000).”). See also In re Lott, 277 B.R. 871, 874 (Bankr. S.D. Ga. 2001) (Motion to amend Chapter 13 schedules to add a medical malpractice claim that the debtor did not realize he had until after confirmation is denied because Bankruptcy Rule 1009(a) permits amendment of schedules without leave of court; acknowledging concern about Wolfork v. Tackett, 540 S.E.2d 611 (Ga.), cert. denied, 534 U.S. 819, 122 S. Ct. 51, 151 L. Ed. 2d 21 (2001), “the Court is confident that a state court would accept proof of actual amendment as equivalent to an order allowing amendment.”).
United States ex rel. Bias v. Tangipahoa Parish Sch. Bd., 766 F. App’x 38 (5th Cir. Mar. 22, 2019) (Stewart, King, Owen) (In amended opinion, judicial estoppel bars Chapter 13 debtor’s unscheduled False Claims Act action that arose years after confirmation; that lawsuit vested in debtor at confirmation is irrelevant to debtor’s continuing obligation to disclose assets.), withdrawing and superseding No. 17-30982, 2018 WL 6431033, at *3–*4 (5th Cir. Dec. 5, 2018) (Stewart, King, Owen) (Applying Flugence v. Axis Surplus Insurance Co. (In re Flugence), 738 F.3d 126 (5th Cir. Nov. 22, 2013) (Smith, Dennis, Higginson), Chapter 13 debtor is judicially estopped to maintain False Claims Act and retaliation claims that arose during case. Debtor had continuing obligation to reveal causes of action even though property vested in debtor at confirmation. Granting of discharge was reliance on inconsistent positions. Motive to deceive inferred because court might have required increased payments or other remedies if action had been revealed. “Debtors must disclose post-confirmation assets to the bankruptcy court regardless of whether the assets are ‘treated as property of the estate or vested in the debtor.’ . . . Had the bankruptcy court known of his FCA claim, it may have modified his plan to require Bias to increase his payments, shorten the payoff period, or pay interest. . . . Bias had a financial motive to conceal his claim.”), and aff'g No. 12-2202, 2017 WL 40495966, at *3 (E.D. La. Sept. 13, 2017) (Fallon) (Judicial estoppel bars action by debtor for retaliation after whistleblowing complaint because facts of case were known to debtor during Chapter 13 and before discharge and lawsuit was filed four years after confirmation and nine months before discharge. “Debtors remain under a duty to disclose potential assets even when it is unclear whether those assets will be part of the bankruptcy estate and even when those assets are ultimately determined to be outside of the bankruptcy estate.”).
Newman v. University of Dayton, No. 17-4241, 2018 WL 5292209 (6th Cir. Oct. 24, 2018) (unpublished) (Guy, White, Stranch) (Judicial estoppel bars Chapter 13 debtor’s employment action against university when debtor did not reveal income from teaching and failed to disclose claims against former employer.), aff'g No. 3:17-cv-179, 2017 WL 4919225 (S.D. Ohio Oct. 31, 2017) (Rose) (Chapter 13 debtor is judicially estopped from maintaining employment discrimination action against university when debtor repeatedly did not disclose employment and repeatedly claimed to be disabled and without income.).
Davis v. Fiat Chrysler Autos. U.S., LLC, No. 17-2016, 2018 WL 4026445 (6th Cir. Aug. 22, 2018) (unpublished) (Gibbons, Bush, Larsen) (In a Chapter 13 case filed in 2008, judicial estoppel bars hostile work environment claim when Chapter 13 debtor was aware of claim in March of 2013 but did not amend schedules before discharge in December of 2013.).
Silva v. Pro Transp., Inc., 898 F.3d 1335, 1336–37 (11th Cir. Aug. 10, 2018) (Wm. Pryor, J. Pryor, Anderson) (After dismissal of unscheduled FLSA action based on judicial estoppel, district court sanctioned Chapter 13 debtor’s attorneys for filing the action; change in the law of judicial estoppel signaled by Eleventh Circuit in Slater v. United States Steel Corp., 871 F.3d 1174 (11th Cir. Sept. 18, 2017) (en banc), requires reversal of sanctions. “The district court . . . sanctioned Silva and his attorneys because it found that they acted in bad faith in litigating Silva’s FLSA claim when it was clear under our precedent that judicial estoppel barred the claim. While Silva’s appeal of the sanctions award was pending in our Court, we issued an en banc opinion clarifying the standard for applying judicial estoppel. . . . Because Slater makes clear that Silva and his attorneys did not act in bad faith in litigating the FLSA claim, we reverse the district court’s award of sanctions.”).
Weakley v. Eagle Logistics, 894 F.3d 1244 (11th Cir. June 29, 2018) (Carnes, Marcus, Rosenbaum) (Applying new rules for application of judicial estoppel in Slater v. United States Steel Corp., 871 F.3d 1174 (11th Cir. Sept. 18, 2017) (en banc), district court appropriately considered all the circumstances and barred Chapter 13 debtor’s civil actions based on failure to schedule. District court found evidence on summary judgment other than just the failure to schedule to support intent to game the system by not disclosing two lawsuits while disclosing others. Voluntary dismissal of Chapter 13 case did not cure judicial estoppel problem.).
Clark v. AII Acquisition, LLC, 886 F.3d 261, 266–68 (2d Cir. Mar. 30, 2018) (Jacobs, Calabresi, Chin) (Barring mesothelioma action based on judicial estoppel was abuse of discretion when confirmed Chapter 13 plan paid creditors in full with interest, debtor learned of diagnosis within a few weeks of completing payments under the plan, debtors told their attorney about the potential cause of action and suit was filed one week before discharge. “That a litigant (i) took a prior inconsistent position and (ii) convinced an earlier tribunal to adopt that position may be necessary conditions for judicial estoppel to be imposed, but they are not sufficient ones. Before judicially estopping a litigant, a court must inquire into whether the particular factual circumstances of a case ‘tip the balance of equities in favor’ of doing so. . . . [T]his inquiry begins by asking whether the prior inconsistent position in question gave the party to be estopped an ‘unfair advantage’ over the party seeking estoppel. . . . We do not deny that there may be unusual circumstances in which the need to safeguard the integrity of the courts may tip the equities in favor of judicial estoppel even when the inconsistency in question made no material difference. But this case is surely not of that sort. Nothing in the record before us suggests that the Clarks withheld Mr. Clark’s diagnosis from the bankruptcy court in an effort to game the bankruptcy system.”).
Slater v. United States Steel Corp, 871 F.3d 1174, 1185 (11th Cir. Sept. 18, 2017) (Carnes, Tjoflat, Marcus, Wilson, William Pryor, Ma) (Reversing in part Barger v. City of Cartersville, Georgia, 348 F.3d 1289 (11th Cir. Oct. 28, 2003) (Barkett, Marcus, Mills), and Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. May 20, 2002) (Carnes, Fay, Hunt), “to determine whether a plaintiff’s inconsistent statements were calculated to make a mockery of the judicial system, a court should look to all the facts and circumstances of the particular case. When the plaintiff’s inconsistent statement comes in the form of an omission in bankruptcy disclosures, the court may consider such factors as the plaintiff’s level of sophistication, whether and under what circumstances the plaintiff corrected the disclosures, whether the plaintiff told his bankruptcy attorney about the civil claims before filing the bankruptcy disclosures, whether the trustee or creditors were aware of the civil lawsuit or claims before the plaintiff amended the disclosures, whether the plaintiff identified other lawsuits to which he was party, and any findings or actions by the bankruptcy court after the omission was discovered. . . . We overrule the portions of Burnes and Barger that permitted the inference that a plaintiff intended to make a mockery of the judicial system simply because he failed to disclose a civil claim.”), reh'g 820 F.3d 1193 (11th Cir. Feb. 24, 2016) (Tjoflat, Pryor, Scola) (Circuit Judge Tjoflat calls on the Eleventh Circuit to convene en banc to correct the mess it has made of judicial estoppel when debtors in bankruptcy fail to disclose lawsuits.), aff'g No. CV-09-BE-1732-S, 2012 WL 4478981 (N.D. Ala. Sept. 25, 2012) (unpublished) (Bowdre) (Judicial estoppel bars cause of action not scheduled in prior petition when amendments to petition and request for conversion from Chapter 7 to Chapter 13 occurred after nondisclosure was caught.).
Magee v. Malaier (In re Carlson), No. 14-60002, 2016 WL 2816129, at *1 (9th Cir. May 13, 2016) (unpublished) (Graber, Berzon, Curiel) (Not abuse of discretion that bankruptcy court sanctioned debtor's counsel for recklessly advising debtor not to reveal tort claims. "Magee improperly advised his client to conceal certain tort claims in her bankruptcy. . . . Magee's client testified that she had asked Magee about the disclosure and that Magee had advised her to conceal the information.").
Wong v. Michaels Stores, Inc., No. 14-55576, 2016 WL 1445241, at *1 (9th Cir. Apr. 13, 2016) (unpublished) (Farris, Sentelle, Smith) (Judicial estoppel bars wage and hour action when debtor did not schedule the lawsuit in two Chapter 13 cases, confirmed a plan in one of the cases and did not rebut presumption of deceit with any contrary evidence. "Wong omitted his pending claims [from] his bankruptcy schedules; he never attempted to amend those schedules to correct the error; . . . he had a motive to conceal his claim: . . . . In these circumstances, we presume deceit, rebuttable only with proof that the plaintiff either did not know of the claim or had no motive to conceal it. . . . Nor does it matter that Wong's bankruptcy proceedings were ultimately dismissed without a discharge of his debt: We have held that less-final judicial reliance on a debtor's nondisclosure of his claims—such as, here, the confirmation of a reorganization plan and extension of a stay—are sufficient to occasion judicial estoppel.").
Van Horn v. Martin, 812 F.3d 1180, 1183 (8th Cir. Feb. 11, 2016) (Murphy, Benton, Kelly) (In a Chapter 13 case confirmed in February 2008 in which payments were completed in February 2013, employment discrimination action that arose when debtor was fired in June 2012 was barred by judicial estoppel because debtor did not amend schedules to reveal cause of action. "Because Van Horn . . . failed to amend her Chapter 13 bankruptcy schedules to include her employment discrimination lawsuit which arose during the pendency of her bankruptcy proceedings, all three factors support the application of judicial estoppel in this case. First, Van Horn's employment discrimination suit was clearly inconsistent with her failure to amend her Chapter 13 bankruptcy schedules . . . . Second, the bankruptcy court adopted her representation that no claims existed when it discharged . . . unsecured debt. Third, she could have received an unfair advantage because her trustee could have asked the bankruptcy court to order her to make any proceeds from a potential settlement available to her unsecured creditors. . . . [A] Chapter 13 debtor who receives a right to sue letter while her bankruptcy case is pending has a motive to conceal her employment discrimination claims from the bankruptcy court."), aff'g, No. 5:13-cv-74-DPM, 2015 WL 925895 (E.D. Ark. Mar. 3, 2015) (Marshall) (Debtor lacked standing and was judicially estopped to pursue employment termination suit that arose four years into Chapter 13 plan when she failed to inform trustee or bankruptcy court. Debtor engaged in mediation, received two right-to-sue letters and discharged $18,000 in unsecured debt two weeks before commencing lawsuit.).
Allen v. C & H Distribs., L.L.C., No. 15-30330, 2015 WL 9461591 (5th Cir. Dec. 23, 2015) (Stewart, King, Higginson) (Judicial estoppel bars action for workplace injuries that occurred after confirmation when debtors amended plan three times without revealing action. That Chapter 13 case was closed without discharge does not change outcome. Opinion leaves open possibility that Chapter 13 case will be reopened to allow "Chapter 7 [sic] trustee" to intervene in lawsuit.), aff'g as modified No. 10-1604, 2015 WL 1399683 (W.D. La. Mar. 26, 2015) (Hicks) (Debtor judicially estopped to pursue personal injury claim that accrued postpetition when Chapter 13 plan continued for nearly four years after accident and Debtor amended confirmed plan multiple times without disclosing PI claim. That no discharge was entered due to debtor's failure to file a financial management course certificate did not preclude application of judicial estoppel. Dismissal without prejudice to Chapter 7 trustee to pursue personal injury claim should case be reopened and converted to Chapter 7.).
United States ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 271-76 (5th Cir. Aug. 13, 2015) (Stewart, King, Elrod) (Debtor judicially estopped to pursue unscheduled False Claim Act action filed at midpoint of five-year 100% plan. "Long argues that . . . he mistakenly believed, on advice from his bankruptcy attorney, that he did not have to disclose his FCA claims because his Chapter 13 plan was a 100% repayment plan. Long is correct that there is no per se rule estopping any party who fails to disclose potential claims to a bankruptcy court. . . . [B]ut inadvertence exists 'only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.' . . . A motivation to conceal may be shown by evidence of a potential financial benefit that could result from concealment. . . . [T]here were three terms particularly beneficial to Long in his bankruptcy plan: (1) he was not required to pay any interest on his debts; (2) he was given five years . . . to repay the principal on his debts; and (3) $4,504.91 in unsecured claims were discharged. . . . [H]ad Long disclosed his FCA claims, his creditors may have sought modification and the bankruptcy court might have modified his plan to require paying some of the interest, paying over a shorter period, or paying some of the discharged debts. . . . [T]he trustee did not complain and had already indicated that she would not pursue the claims[.]").
D'Antignac v. Deere & Co., No. 14-10048, 2015 WL 1321570, at *2-*3 (11th Cir. Mar. 25, 2015) (unpublished) (Carnes, Wilson, Rosenbaum) (Judicial estoppel bars discrimination action that arose five months before discharge in Chapter 13 case. "We have explicitly held that a Chapter 13 debtor has a continuing statutory duty to amend her schedule of assets to reflect a claim she raised in an employment discrimination lawsuit she filed before the bankruptcy was discharged. . . . [T]he inconsistency between her positions was not inadvertent under our precedent. . . . D'Antignac knew of her claims against Deere while her bankruptcy was pending and . . . she had a motive to make the inconsistent statements—namely, that if she did not disclose the claims to the bankruptcy court, she could keep all the proceeds if she won her suit against Deere.").
Marable v. Marion Military Inst., No. 12-16189, 2014 WL 7240070, at *2 (11th Cir. Dec. 22, 2014) (unpublished) (Wilson, Jordan, Anderson) (Judicial estoppel bars damages recovery in unscheduled employment discrimination action when debtor did not amend schedules until after motion for summary judgment. "[T]he duty to disclose is a continuing one; thus, a debtor must amend his financial statements if circumstances change. . . . [H]e did not amend his bankruptcy petition to include the lawsuit, despite his obligation to do so. . . . He only amended his petition to include the present lawsuit . . . after the defendants had already moved for summary judgment. . . . He also had a motive to conceal his discrimination claims in his bankruptcy proceeding because, by not listing the potential proceeds of the instant lawsuit as a potential asset, he would ensure that any proceeds would accrue to him personally, rather than to the bankruptcy estate.").
Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. July 11, 2014) (Kearse, Jacobs, Lynch) (Judicial estoppel does not bar cause of action not scheduled in prior Chapter 13 case because prior case was dismissed before confirmation and bankruptcy court took no action based on the failure to schedule. "In Crawford's 2006 bankruptcy proceeding, her failure to list her present causes of action among her assets was tantamount to a representation that she had no such claims. However, there was no ruling relating to that representation. The court did not confirm Crawford's proposed plan, address its merits, or mention her assets. It simply dismissed her petition . . . . As there was no ruling relating to Crawford's present claims or to her assets generally, there is no risk of inconsistent adjudications. We conclude that there is no ground for judicial estoppel.").
Crouser v. BAC Home Loans Servicing, LP (In re Crouser), No. 13-14304, 2014 WL 2444399 (11th Cir. June 2, 2014) (unpublished) (Wilson, Pryor, Anderson) (Proceeds of settlement of stay violation action against mortgagee are property of the Chapter 13 estate under § 1306(a)(1).), aff'g 476 B.R. 340 (Bankr. S.D. Ga. Aug. 20, 2012) (Barrett) (Settlement proceeds from willful stay violation were property of estate, to be turned over to trustee for distribution to unsecured creditors. Under Waldron v. Brown (In re Waldron), 536 F.3d 1239 (11th Cir. Aug. 4, 2008) (Edmondson, Pryor, Johnson), vesting at confirmation did not prevent property acquired postconfirmation from coming into estate.).
Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686, 697-98 (6th Cir. Feb. 3, 2014) (Cole, Clay, Bertelsman) (Judicial estoppel does not bar debtor's disability action because failure to schedule in Chapter 13 case was error by attorney of which debtor was not aware and exemption for disability benefits under state law negates motive to benefit from concealment. "We review de novo a district court's decision regarding the application of judicial estoppel. . . . In several recent cases, this Court has 'questioned the continuing viability of the de novo standard for judicial estoppel, noting the Supreme Court's characterization of the doctrine as an equitable remedy 'invoked by the court at its discretion' and recognizing that the 'majority of federal courts' review for abuse of discretion.' . . . We have made clear that 'judicial estoppel does not apply where the prior inconsistent position occurred because of "mistake or inadvertence."' . . . Failure to disclose a claim in a bankruptcy proceeding also may be excused where the debtor lacks a motive to conceal the claim. . . . Plaintiff and his spouse disclosed the claim to their bankruptcy attorney in writing and discussed the claim with their bankruptcy attorney, which suggests that any error was the fault of the attorney and not Plaintiff. . . . [A]ny omission was almost certainly due to carelessness or inadvertent error as opposed to intentional, strategic concealment or impermissible gamesmanship. We note also that under Ohio laws, proceeds from a disability insurance policy are completely exempt from a debtor's estate . . . to the extent that they are necessary for the support of the debtor and his family. . . . Accordingly, Plaintiff had no motive for intentionally concealing the claim.").
Flugence v. Axis Surplus Ins. Co. (In re Flugence), 738 F.3d 126, 129-32 (5th Cir. Nov. 22, 2013) (en banc) (Interpreting Reed v. City of Arlington, 650 F.3d 571 (5th Cir. Aug. 11, 2011) (en banc), debtor is judicially estopped to pursue personal injury action that accrued postconfirmation but was not disclosed; trustee can pursue action and trustee's recovery is not limited by amount of debt in bankruptcy case. "Chapter 13 debtors have a continuing obligation to disclose post-petition causes of action. It may be uncertain whether a debtor must disclose assets post-confirmation. That uncertainty arises from two provisions in the Bankruptcy Code, one suggesting that post-confirmation causes of action are 'property of the estate' and the other hinting that such property is 'vested' 'in the debtor.' That possible conflict, however, is irrelevant here. . . . [H]ere, the plan explicitly stated that the estate's assets would not revest in the debtor until discharge. . . . [D]ebtors have a duty to disclose to the bankruptcy court notwithstanding uncertainty. . . . Flugence knew of the facts underlying her personal-injury claim. . . . [S]he had motive to conceal, because her claim, if disclosed, would be available to the creditors. That she did not know that bankruptcy law required disclosure . . . is, according to our precedents, irrelevant. . . . Nothing in Reed speaks to liability limitations of the sort the personal-injury defendants seek . . . . [I]f the personal-injury defendants were entitled to the sort of limitation they seek, then such declarations would tend to 'thwart one of the core goals of the bankruptcy system—obtaining a maximum and equitable distribution for creditors.' . . . Attorneys might not be willing to take on the case with a dim hope for recovery, so the creditors would collect nothing. . . . In Reed, we rejected the notion that innocent creditors should be punished for the debtor's failure to comply with disclosure rules. . . . That wrongful tortfeasors would be favored over innocent creditors by the mere happenstance of the debtor's independent non-disclosure turns equity on its head. . . . [W]here a debtor is judicially estopped from pursuing a claim he failed to disclose to the bankruptcy court, the trustee, consistent with Reed, may pursue the claim without any limitation not otherwise imposed by law."), withdrawing 732 F.3d 428 (3d Cir. Oct. 4, 2013) (Smith, Dennis, Higginson), rev'g in part No. 11-2020, 2012 WL 6726692 (W.D. La. Dec. 27, 2012) (Walter) (Judicial estoppel not triggered by debtor's failure to disclose potential postconfirmation cause of action; estoppel would be windfall to tort defendant.).
Kimberlin v. Dollar Gen. Corp., No. 12-3584, 2013 WL 1136563, at *3 (6th Cir. Mar. 20, 2013) (unpublished) (Guy, Sutton, Cook) (Collateral estoppel precludes action for retaliatory firing when debtor was terminated 41 days before making last payment in a five-year Chapter 13 case and debtor failed to act during that 41-day period to reveal the claim to the bankruptcy court. "Kimberlin disputes motive and bad faith, arguing that insufficient time remained in the payment plan for the bankruptcy estate or her creditors to benefit from her disclosure. . . . Given that only 41 days passed between her termination and the final payment in her 60-month plan, she argues it was not possible (practically) to 'liquidate her claim and incorporate the proceeds into a modification of her plan that would increase payments to creditors.' We disagree. . . . [T]he bankruptcy court still had options for protecting the estate's and creditors' potential interest in the retaliation claim. Had Kimberlin notified the court of her potential claim within the 41-day period, it could have modified her Chapter 13 plan to grant creditors some percentage of any future recovery. . . . The court could also have converted the Kimberlins' Chapter 13 petition to Chapter 7 or dismissed the petition 'for cause.' . . . [S]he deprived the bankruptcy trustee, court, and creditors of any opportunity to consider possible options.").
Parker v. Turner Indus. Group, L.L.C., 492 Fed. Appx. 475 (5th Cir. Nov. 19, 2012) (Wiener, Elrod, Graves) (Dismissal of unscheduled employment discrimination action was appropriate based on judicial estoppel. Debtor filed Chapter 13 petition three weeks before employment termination that gave rise to discrimination lawsuit.).
EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. May 8, 2012) (Murphy, Smith, Benton) (In sexual harassment suit by EEOC, judicial estoppel was properly applied to individuals but not to EEOC when individuals did not disclose cause of action on bankruptcy petitions.).
Love v. Tyson Foods, Inc., 677 F.3d 258 (5th Cir. Apr. 12, 2012) (King, Wiener, Haynes) (Judicial estoppel precludes civil rights action that was omitted from schedules in 0% Chapter 13 case; amendment of schedules after defendant moved for summary judgment cannot cure imputation of bad motive at time of nondisclosure.), aff'g No. 3:09CV268TSL-JCS, 2010 WL 114243 (S.D. Miss. Jan. 7, 2010) (unpublished) (Lee) (Judicial estoppel barred discrimination action when debtor did not disclose claim in bankruptcy schedules.).
Jones v. United States, No. 11-13158, 2012 WL 833320, at *4 (11th Cir. Mar. 14, 2012) (unpublished) (Carnes, Wilson, Cox) (Applying Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. May 20, 2002) (Carnes, Fay, Hunt), failure to schedule $10 million Federal Tort Claims Act case against government for bad drinking water at Camp Lejeune in original Chapter 13 schedules and at conversion to Chapter 7 judicially estops debtor notwithstanding attempted substitution of Chapter 7 trustee as plaintiff. "[A]fter the Government learned of Jones's omission, Jones sought, like the plaintiff in Burnes, to reopen her bankruptcy case. Based on Burnes, we cannot say the district court abused its discretion in concluding that Jones had a motive to conceal her FTCA claim. Thus, Jones['s] omission was not inadvertent, and the district court did not err in inferring Jones's intent to make a mockery of the judicial system.").
Rainey v. United Parcel Serv., Inc., No. 11-3106, 2012 WL 753680 (7th Cir. Mar. 9, 2012) (unpublished) (Posner, Wood, Tinder) (Debtor has continuing duty to disclose causes of action acquired postpetition; but upon reopening of case, debtor should be given opportunity to inform trustee of previously undisclosed claims, and unless trustee elects to abandon asset, debtor may litigate claims on behalf of estate and for benefit of creditors. Precluding debtor to bring claims would undermine interest of creditors.), vacating and remanding No. 10 C 4669, 2011 WL 3609128 (N.D. Ill. Aug. 16, 2011) (Kocoras) (Without discussing judicial estoppel, before pursuing postpetition employment action, debtor must reopen bankruptcy case, and debtor can then only bring claim on behalf of bankruptcy estate. Trustee had no opportunity to abandon or administer estate's undisclosed interest. Claim remained property of estate.).
Balthrope v. Sacramento Dep't Health & Human Servs., No. 09-17213, 2010 WL 3937427 (9th Cir. Oct. 5, 2010) (unpublished) (Wallace, Hawkins, Thomas) (Judicial estoppel applied: Chapter 13 debtor was required to amend "bankruptcy petition" to include postpetition action because Chapter 13 case had not been closed, dismissed or converted and property of the bankruptcy estate had not revested in the debtor.), aff'g No. 2:09-cv-1013 FCD JFM PS, 2010 WL 430840, at *2 (E.D. Cal. Feb. 1, 2010) (unpublished) (Damrell) (Judicial estoppel barred complaint when debtor did not amend schedules, despite continuing duty to schedule causes of action. Section 541(a)(1) includes causes of action belonging to debtor at commencement of case. On facts similar to Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778 (9th Cir. Nov. 5, 2001) (Brunetti, Rymer, Wardlaw), debtor "clearly asserted inconsistent positions by failing to include a cause of action in his bankruptcy filings and subsequently attempting to sue on that claim outside of the bankruptcy proceeding.").
White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. Aug. 11, 2010) (Clay, McKeague, Polster) (Failure to schedule sexual harassment claim judicially estops debtor from prosecuting action notwithstanding that claim was revealed at confirmation hearing before lawsuit was filed and before motion to dismiss by defendants. Panel majority seems to say that order requiring debtor to make payments to trustee—months in advance of the meeting of creditors and confirmation hearing—was sufficient "adoption" of the failure to schedule to support judicial estoppel. Confirmation order entered two months after motion to dismiss included provision requiring recovery from sexual harassment action to be paid to creditors.).
Moses v. Howard Univ. Hosp., 606 F.3d 789 (D.C. Cir. June 1, 2010) (Sentelle, Tatel, Edwards) (Judicial estoppel bars civil rights retaliation action when debtor failed to disclose prepetition lawsuit in two bankruptcy filings—a Chapter 7 case and a Chapter 13 case—notwithstanding that the schedules were amended in the Chapter 7 case and the Chapter 7 trustee abandoned the cause of action and the Chapter 13 case was dismissed before confirmation.).
Williams v. Hainje, No. 09-3772, 2010 WL 1936269, at *2 (7th Cir. May 14, 2010) (unpublished) (Ripple, Williams, Tinder) (Judicial estoppel bars unscheduled civil rights action that was pending two years before petition; that debtor amended schedules after confirmation in response to motion for summary judgment in civil rights case does not change outcome. Dismissal of Chapter 13 case while judicial estoppel decision was on appeal does not change outcome because debtor continued to pursue civil rights action on his own behalf. "[That] Williams never received a discharge . . . is immaterial. Williams still received significant financial benefits during his short stint in bankruptcy. His filing . . . triggered the automatic stay . . . holding creditors at bay for some 20 months and thereby enabling him to keep his house and car, and to avoid new interest charges on his mortgage arrearage . . . . [T]he bankruptcy court confirmed a reorganization plan that temporarily relieved Williams of most of his debts without further interest or penalty. . . . [A] debtor who receives even preliminary benefits from concealing a chose in action from his creditors can still be estopped from pursuing the suit in the future. . . . The Supreme Court has indeed recognized that judicial estoppel may be inappropriate where there is evidence that nondisclosure was inadvertent. . . . When Williams filed for bankruptcy, his suit . . . was active and well into discovery. He failed to disclose the potentially lucrative claim twice, both times by personally signing incomplete disclosure declarations under penalty of perjury. His civil-rights suit was on his mind as he prepared those disclosures because he reported as unsecured debt the medical expenses that he allegedly incurred from the underlying injury. . . . [T]he district court reasonably inferred that Williams made a knowing misrepresentation. . . . [B]laming his lawyers' advice for his own incomplete disclosure is legally unavailing.").
Benetatos v. Hellenic Republic (In re Benetatos), No. 08-17648, 2010 WL 1041474 (9th Cir. Mar. 19, 2010) (unpublished) (Wallace, Graber, McKeown) (Judicial estoppel applied when debtor did not schedule cause of action and failed to disclose accounts receivable.), aff'g No. C 06-06819 SBA, 2008 WL 4104244 (N.D. Cal. Sept. 3, 2008) (Armstrong) (Failure to schedule claim for unpaid fees judicially estopped attorney/debtor from pursuing collection action against former client; debtor "undisputably knew he had a claim for unpaid post-petition fees and costs, yet failed to disclose that claim not only in his initial schedules, but in his amended schedules as well.").
Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1274-76 (11th Cir. Feb. 5, 2010) (Marcus, Fay, Anderson) (In a full-payment Chapter 13 case confirmed in 2002 and completed in July 2007, failure to amend schedules in October 2006 to reveal employment discrimination lawsuit judicially estops debtor. "Robinson had a statutory duty to amend her schedule of assets to reflect her claims against Tyson. . . . The bankruptcy court's order specifically states that 'the property of the estate shall not vest in the Debtor until a discharge is granted under § 1328 or the case is dismissed.' . . . [A]ll qualified property acquired by Robinson during the pendency of her bankruptcy belonged to her bankruptcy estate and not her personally. It is undisputed that a pending lawsuit seeking monetary compensation qualifies as an asset. . . . [W]hen Robinson filed her claim against Tyson while her bankruptcy was still pending, the claim vested in the bankruptcy estate and Robinson had a duty to notice the suit to all creditors. . . . By failing to update her bankruptcy schedule to reflect her pending claim, Robinson represented that she had no legal claims to the bankruptcy court while simultaneously pursuing her legal claim against Tyson in the district court. These actions, both taken under oath, are clearly inconsistent. . . . Robinson contends she lacked motive to conceal her claims against Tyson as her Chapter 13 plan proposed complete repayment. However, full monetary repayment does not necessarily preclude a finding of a motive to conceal. . . . The application of judicial estoppel does not require that the nondisclosure must lead to a different result in the bankruptcy proceeding. . . . Rather, the motive to conceal stems from the possibility of defrauding the courts and not from any actual fraudulent result. . . . The district court focused on the nine month window between when Robinson brought her claim against Tyson and when she was dismissed [sic] from bankruptcy. . . . [T]he district court found that if Robinson's claim had settled in this time period, she would have been able to keep the proceeds for herself and denied the creditors a fair opportunity to claim what was rightfully theirs.").
Ardese v. DCT, Inc., No. 07-7069, 2008 WL 2216965, at *3 (10th Cir. May 29, 2008) (unpublished) (Murphy, McKay, Gorsuch) (Applying Eastman v. Union Pacific R.R. Co., 493 F.3d 1151 (10th Cir. 2007), debtor's failure to schedule claim against former employer is not excused by argument that her "attorney 'blew it'"; reopening bankruptcy case to disclose cause of action does not preclude judicial estoppel when amendment was triggered by defendant's pleading judicial estoppel.).
Bohanan v. Bridgestone/Firestone N. Am. Tire, LLC, No. 07-5542, 2008 WL 215749, at *2 (6th Cir. Jan. 25, 2008) (unpublished) (Kennedy, Martin, Cole) (Failure to reveal age discrimination lawsuit in Chapter 13 case triggers judicial estoppel. Chapter 13 case was filed in February of 2004. Age discrimination case was filed in February of 2006. After filing lawsuit, debtors modified Chapter 13 plan to reduce payments to unsecured creditors. Debtors did not reveal lawsuit at time of modification. "The district court found that by failing to disclose to the bankruptcy court that the current controversy was a potential asset, the Bohanans asserted under oath a position that was contrary to the one asserted in this case, and that the bankruptcy court adopted the contrary position as a part of a final disposition.").
Bohanan v. Bridgestone/Firestone N. Am. Tire, LLC, No. 07-5542, 2008 WL 215749 (6th Cir. Jan. 25, 2008) (unpublished) (Kennedy, Martin, Cole) (Judicial estoppel is properly applied when debtors failed to disclose Title VII cause of action in Chapter 13 case. Debtors failed to prove that failure to amend was result of inadvertence or mistake.).
Pavlov v. Ingles Mkts., Inc., 236 Fed. Appx. 549, 550 (11th Cir. June 6, 2007) (Birch, Barkett, Pryor) (Distinguishing Parker v. Wendy's Int'l, Inc., 365 F.3d 1268 (11th Cir. 2004), judicial estoppel could be applied against Chapter 13 debtor for failure to disclose state law claims because "there has been no appearance of any Trustee, through intervention or otherwise.").
Ajaka v. Brooksamerica Mortgage Corp., 453 F.3d 1339, 1345-46 (11th Cir. June 29, 2006) (Anderson, Barkett, Bowman) (Distinguishing Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), summary judgment on judicial estoppel ground was inappropriate when Chapter 13 debtor learned of Truth in Lending Act (TILA) action after filing petition and mortgage holder filed an adversary proceeding for declaratory relief in the bankruptcy court before expiration of the 180 days within which to seek revocation of confirmation under § 1330(a). "[I]t is difficult to impute an intent 'to make a mockery of the judicial system' where the complaining party was aware of the inconsistency in sufficient time and in a position to raise an objection in the original proceeding. . . . [B]ecause of [the mortgage holder's] adversary action in the bankruptcy court, filed in response to Ajaka's rescission demand, all of Ajaka's creditors, including the Defendants, were aware . . . that Ajaka had a colorable TILA claim. At that time, nothing would have prevented the Defendants from seeking revocation of the confirmation of Ajaka's Chapter 13 reorganization plan pursuant to 11 U.S.C. § 1330(a) . . . . [A]lthough Ajaka did not himself amend his bankruptcy schedules to reflect the TILA claim until . . . after the 180-day period under § 1330(a) had expired, all creditors were already aware of the TILA claim resulting directly from Ajaka's attempts to sue the appropriate parties, and therefore could have challenged Ajaka's failure to previously amend his schedules within the context of the ongoing bankruptcy proceeding. . . . [T]here exists a question of material fact as to whether Ajaka had the motivation and intent to manipulate the judicial system.") , affirming after remand, Ajaka v. Residential Funding Corp. (In re Ajaka), No. 07-12836, 2008 WL 2079103 (11th Cir. May 19, 2008) (Tjoflat, Marcus, Vinson) (unpublished).").
Stallings v. Hussmann Corp., 447 F.3d 1041 (8th Cir. May 12, 2006) (Smith, Heaney, Benton) (District court abused its discretion by invoking judicial estoppel to preclude debtor's wrongful termination action against former employer when lawsuit was not scheduled but Chapter 13 case was dismissed without discharge. There was no "judicial acceptance" of an inconsistent position by the debtor.).
Lewis v. Weyerhaeuser Co., 141 Fed. Appx. 420 (6th Cir. July 6, 2005) (unpublished) (Cole, Sutton, Zatkoff) (Applying Browning v. Levy, 283 F.3d 761 (6th Cir. 2003), potential discrimination action that arose prepetition was property of estate, and failure to schedule justifies application of judicial estoppel; that debtor relied on paralegal's "bad legal" advice to not mention action does not prevent application of judicial estoppel.).
Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir. June 13, 2005) (Garwood, Smith, Clement) (Applying In re Coastal Plains, Inc., 179 F.3d 197 (5th Cir. 1999), failure to schedule EEOC claims pending at Chapter 13 filing justifies application of judicial estoppel and dismissal of lawsuit; reliance on bankruptcy counsel's advice that claims were "irrelevant" is no excuse.).
Muse v. Accord Human Res., Inc., 129 Fed. Appx. 487, 488-89 (11th Cir. Apr. 15, 2005) (Black, Hull, Pryor) (Fair Labor Standards Act (FLSA) action that arose after confirmation is not property of the Chapter 13 estate; failure to amend schedules to reveal the cause of action does not judicially estop the debtor. "[T]he [Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000),] court held that assets acquired post-confirmation are not property of the bankruptcy estate unless they are necessary to maintain the bankruptcy plan. . . . [C]onfirmation of the bankruptcy plan occurred on April 7, 1998. Applying Telfair, any property interest acquired by Muse after April 7, 1998, which was not necessary to fulfill the plan, became the property of the debtor (Muse). The unpaid wage claim arose in January 2000, nearly two years after confirmation and there is no assertion that those assets were necessary to meet the terms of the bankruptcy plan. Therefore, the unpaid wage claim was not part of the bankruptcy estate. Because it was not part of the bankruptcy estate, Muse had no duty to disclose it.").
Flores v. Yarnall (In re Flores), No. NV-09-1263-DJuP, 2010 WL 6259989 (B.A.P. 9th Cir. Apr. 6, 2010) (unpublished) (Dunn, Jury, Perris) (Explaining Sierra Switchboard Co. v. Westinghouse Electric Corp., 789 F.2d 705 (9th Cir. May 7, 1986) (Skopil, Fletcher, Wiggins), and distinguishing Cesner v. Schmelzer (In re Schmelzer), 480 F.2d 1074 (6th Cir. June 21, 1973) (Weick, Miller, Lively), public policy considerations do not exclude personal injury claims from property of the Chapter 13 estate; debtors are limited to exemption amount in the settlement proceeds from medical malpractice claim.).
Autos, Inc. v. Gowin, 244 Fed. Appx. 885 (B.A.P. 10th Cir. Aug. 9, 2007) (Tacha, Tymkovich, Holmes) (Debtor is judicially estopped to sue car lender for violations of state Consumer Credit and Commercial Code when debtor omitted cause of action from schedules and confirmed plan surrendered car without mention of action against car lender.).
Williamson v. USF Holland, LLC, No. 2:17-cv-13326-LJM-APP, 2019 WL 1354267 (E.D. Mich. Mar. 26, 2019) (Michelson) (Notwithstanding substantial evidence that failure to schedule an employment discrimination claim was counsel’s fault, judicial estoppel bars Chapter 13 debtor’s action because debtor bears some of the blame and no proposal is pending to amend confirmed plan to capture any recovery for creditors.).
Williams v. Keystone Peer Review Org., Inc., No. 17-1145-MMM-JEH, 2019 WL 1014605 (C.D. Ill. Mar. 4, 2019) (Mihm)
(Chapter 13 debtor has prudential standing and is not judicially estopped to maintain unscheduled lawsuit that was filed four months before completion of Chapter 13 plan that paid all creditors in full. Debtor reopened Chapter 13 case, added lawsuit as an asset and trustee then recommended reclosing Chapter 13 case because no further administration was necessary
Washington v. Shanahan, No. 1:17-cv-00528-TFM-MU, 2019 WL 320582 (S.D. Ala. Jan. 24, 2019) (Moorer) (Given the “fact-based” nature of the judicial estoppel inquiry in Slater v. United States Steel Corp., 871 F.3d 1174 (11th Cir. Sept. 18, 2017) (en banc), not appropriate to dismiss employment complaint when debtor amended bankruptcy schedules to reveal some of the employment litigation and disputed facts preclude other findings required by Slater.).
Mitchell v. Davis, No. 3:18-CV-159-DPJ-FKB, 2019 WL 81580 (S.D. Miss. Jan. 2, 2019) (Jordan) (Chapter 13 debtor is judicially estopped to maintain employment discrimination action that was pending at the petition but not disclosed by amendment until after motion to dismiss by defendants. Chapter 13 trustee will have opportunity to assume debtor’s role in lawsuit on behalf of the Chapter 13 estate.).
Miller v. Eicher (In re Miller), No. 18-108 Erie, 2018 WL 6696867 (W.D. Pa. Dec. 20, 2018) (Baxter) (District court withdraws reference of Chapter 13 debtor’s trial-ready state law action against contractor for shoddy work.).
Cortez v. Second Chance Home Loans, LLC, No. 2:18-cv-01896 WBS EFB, 2018 WL 6216426 (E.D. Cal. Nov. 28, 2018) (Shubb) (Judicial estoppel did not apply to Chapter 13 debtor’s attack on botched mortgage modification because Chapter 13 case was dismissed before confirmation and bankruptcy court did not rely on omission of cause of action.).
Cornish v. Hudson Grp. (HG) Retail, LLC, No. H-18-977, 2018 WL 6413158 (S.D. Tex. Oct. 31, 2018) (Hittner) (In Chapter 13 case with plan confirmed in 2015, debtor is judicially estopped to maintain slip and fall action when event occurred in 2017 and debtor did not amend schedules until after motion to dismiss in 2018.).
Teague v. Biotelemetry, Inc., No. 16-cv-06527-TSH, 2018 WL 5310793 (N.D. Cal. Oct. 25, 2018) (Hixson) (Judicial estoppel does not bar debtor’s action against former employer for unpaid commissions because Chapter 13 plan paid all creditors 100% in 15 months and failure to schedule the lawsuit did not result in any action by the bankruptcy court that would have been different had the lawsuit been scheduled.).
Stocks v. DoAll Co., 340 F. Supp. 3d 789 (E.D. Wis. Oct. 19, 2018) (Adelman) (Judicial estoppel does not bar debtor’s participation in wage and hour class action when debtor opted into the class a year before filing Chapter 13 petition and case failed and was dismissed without confirmation of a plan.).
Peterson v. East Boston Sav. Bank,, No. 17-11776-GAO, 2018 WL 4696746 (D. Mass. Sept. 29, 2018) (O’Toole) (Claims against bank and SBA for misrepresentations in connection with an SBA loan are barred by judicial estoppel when debtor did not schedule the action in prior Chapter 7 case or in current Chapter 13 case.).
Ming Yu Chau v. Bank of N.Y. Mellon Tr. Co., N.A., No. 18-CV-1536-CAB-WVG, 2018 WL 4680127 (S.D. Cal. Sept. 28, 2018) (Bencivengo) (Chapter 13 debtor lacks standing to sue mortgagee and servicer under Equal Credit Opportunity Act and state law when action belongs to Chapter 13 estate, complaint purports to seek recovery personally by debtor and action was not scheduled as an asset or provided for in plan. On merits, ECOA claims are stale or not well-pleaded.).
Wheeler v. Wells Fargo Home Mortg., No. C18-5060 BHS, 2018 WL 4613165 (W.D. Wash. Sept. 26, 2018) (Settle) (Judicial estoppel does not bar Chapter 13 debtor’s unscheduled action against Wells Fargo for damages with respect to an improper foreclosure because if debtor succeeds, damages will be offset against Wells Fargo’s claim.).
Mitchell v. Cenlar Capital Corp., No. 3:16-cv-814-WHB-JCG, 2018 WL 7254716 (S.D. Miss. Sept. 26, 2018) (Barbour) (Misconduct by mortgage creditor that occurred during prior Chapter 13 case is “trapped” in that closed case and cannot be remedied by debtors in subsequent Chapter 13 case. Debtors can amend schedules in second case to add claims against mortgage creditor that arose after completion of first case, to deal with estoppel arguments.).
, , () () (Without discussion of judicial estoppel, debtor has standing to bring unscheduled employment action that arose before but was filed after the Chapter 13 petition. However, complaint fails on the merits. “Although the Ninth Circuit has not addressed whether a Chapter 13 debtor has standing to pursue claims initiated after filing for bankruptcy . . . the court follows the overwhelming appellate authority allowing a debtor to do so. . . . Thus, it is not fatal to Lee’s case that he did not disclose his claims to the bankruptcy court, because the causes of action in this case belong to him, not the bankruptcy trustee.”).
Culotta v. Lafayette Parish Consol. Gov’t, No. 17-0093, 2018 WL 3550499 (W.D. La. July 20, 2018) (Hicks) (Undisclosed action for unlawful arrest and confinement based on events before filing of Chapter 13 case is dismissed: judicial estoppel precludes debtor from maintaining action but would allow a bankruptcy trustee to bring the action if this completed Chapter 13 case were reopened and converted to Chapter 7.).
Peterson v. SCIS Air Sec. Corp., No. 2:16-cv-849-DS, 2018 WL 3336600 (D. Utah July 6, 2018) (Sam) (Judicial estoppel bars employment discrimination action when debtor listed value of action in schedules as $0 but demanded $600,000 in complaint filed four months earlier. Confirmed plan did not commit any proceeds of litigation to payments to creditors.).
Puig Martínez v. Novo Nordisk, Inc., 585 B.R. 655 (D.P.R. Apr. 11, 2018) (Gelpi) (Chapter 13 debtor has standing to bring employment discrimination complaint; judicial estoppel defense based on failure to schedule cause of action that arose six months before completion of plan requires hearing to determine disputed fact whether bankruptcy court relied on the nondisclosure.).
Midstate Fin. Co. v. Peoples, No. 4:17-cv-6, 2018 WL 1565605 (E.D. Tenn. Mar. 31, 2018) (Collier) (Judicial estoppel bars unscheduled employment discrimination action notwithstanding that action arose postconfirmation, debtor told her bankruptcy attorney about the action and the Chapter 13 case was dismissed without discharge.).
King v. Indiana Harbor Belt R.R. Co., No. 2:15-CV-245 JD, 2018 WL 1566821 (N.D. Ind. Mar. 30, 2018) (DeGuilio) (Former Chapter 13 debtor lacks standing to prosecute whistleblower and harassment actions that arose during completed Chapter 13 case but were not scheduled. Actions were not administered and remain property of the Chapter 13 estate notwithstanding that case has been closed. District court will stay pending actions to allow debtor to seek to reopen Chapter 13 case and administer the actions.).
Hobby v. Parker, No. 17-0920, 2018 WL 1528225 (W.D. La. Mar. 28, 2018) (Hicks) (Appeal of question whether notice of lawsuit to Chapter 13 trustee is sufficient to avoid application of judicial estoppel when schedules are not amended to disclose the lawsuit is not ready for appellate review for various reasons.).
Pegg v. Steel Dynamics, Inc., No 1:16-CV-241-SA-DAS, 2018 WL 1247874 (N.D. Miss. Mar. 9, 2018) (Aycock) (District court declines to apply judicial estoppel to bar Chapter 13 debtor’s workers’ compensation action when Chapter 13 case was filed in 2009, injury occurred in late 2013, debtor completed payments under plan in 2014 and unsecured claims were paid in full. Applying judicial estoppel would cut off innocent subrogation claims and would allow defendants to escape liability when they had no claims or interest in the Chapter 13 case. There is no evidence that the debtor gained unfair advantage in the injury suit by failing to disclose the claim in the Chapter 13 case. Debtor reopened Chapter 13 case and added workers’ comp action to the schedules after the judicial estoppel issue was raised.).
Bowling v. Ryder Integrated Logistics, Inc, No. 6:17-219-DCR, 2018 WL 1157549 (E.D. Ky. Mar. 5, 2018) (Reeves) (Chapter 13 debtor lacks standing to bring Family Medical Leave Act action with respect to postconfirmation firing when unscheduled cause of action remains property of estate in dismissed Chapter 13 case.).
Harewood v. Miami-Dade Cty., No. 1:16-cv-21874-KMM, 2018 WL 1156010 (S.D. Fla. Mar. 1, 2018) (Moore) (Applying new judicial estoppel analysis from Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180 (11th Cir. Sept. 18, 2017) (en banc), Chapter 13 debtor intended to make a mockery of justice by repeatedly not scheduling civil rights action against police officer.).
Middleton-Thomas v. Piat, Inc., No. 17-2023-JWL, 2018 WL 836291, at *3–*4 (D. Kan. Feb. 13, 2018) (Lungstrum) (Questioning whether Tenth Circuit would impose a continuing duty on Chapter 13 debtors to disclose causes of action that arise postpetition, material disputed facts preclude summary judgment with respect to judicial estoppel when debtor listed no causes of action in Chapter 13 schedules in January 2016, filed race discrimination action in January 2017 and amended schedules in December 2017 to reveal cause of action. “[D]efendant directs the court to no Tenth Circuit case finding, in the context of a Chapter 13 bankruptcy, a duty to amend a schedule to reflect claims that accrued post-confirmation and prior to discharge. . . . Neither does defendant direct the court to any statutory duty to amend a Chapter 13 schedule to reflect claims that accrued post-confirmation but prior to discharge. . . . The court is not persuaded that the Tenth Circuit would follow the Eleventh Circuit . . . .”).
Buhe v. Amica Mut. Ins. Co., No. 15 C 5340, 2018 WL 835221, at *6 (N.D. Ill. Feb. 13, 2018) (Alonso) (For judicial estoppel purposes, material disputed facts preclude summary judgment with respect to whether debtor intended to conceal age discrimination claim in Chapter 13 case in which debtor paid 100% of all filed claims and received a discharge. “[P]laintiff claims that he had no idea he was supposed to disclose his employment claims to the bankruptcy court, particularly given that his understanding was that all creditors who filed proofs of claim would be paid in full. If that is true, then defendant’s judicial estoppel defense fails. Defendant’s judicial estoppel defense must await trial because an issue of material fact remains.”).
Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 3232827, at *8 (E.D. Va. Feb. 12, 2018) (Leonard) (Declining to follow stricter standard in Slater v. United States Steel Corp., 871 F.3d 1174 (11th Cir. Sept. 18, 2017) (en banc), Chapter 13 debtors are judicially estopped to maintain employment discrimination actions that were not disclosed during bankruptcy cases. Dismissal of a Chapter 13 case does not affect the application of judicial estoppel. “Rather than continue to follow Fourth Circuit precedent that requires a court to determine bad faith by evaluating whether the debtor has knowledge of the undisclosed claims and has a motive for concealment, [plaintiffs] invite the Court to adopt [Slater’s] more lenient standard, which, in effect, might excuse a deliberate concealment of a claim from the Bankruptcy Court if the debtor, once caught, corrected the nondisclosures. This Court declines Plaintiffs’ invitation.”).
Corradi v. Lane Funeral Homes, Inc., No. 4:17CV1311, 2017 WL 6055231 (N.D. Ohio Dec. 7, 2017) (Limbert)
(Judicial estoppel bars unscheduled employment discrimination action notwithstanding that confirmed Chapter 13 plan pays all claims in full because a recovery could entitle unsecured creditors to interest
Leahey v. SP Ctr., LLC, No. 14 Civ. 7411 (RWS), 2017 WL 5157471, at *4 (S.D.N.Y. Nov. 6, 2017) (Sweet)
(Judicial estoppel does not bar accident claim that arose during Chapter 13 case when debtors told their attorney about the claim a year before completion of payments, but attorney delayed and then attempted unsuccessfully to amend schedules to reveal the claim after completion of payments and discharge. “Plaintiffs have not made any attempt to conceal the existence of this action from the Bankruptcy Court. The Plaintiffs both clearly believed that their bankruptcy attorney had already disclosed this case to the Bankruptcy Court . . . . To hold the Plaintiffs accountable for their bankruptcy attorney’s mistake
Smith v. Bishop Gadsden Episcopal Ret. Cmty., No. 2:16-cv-03113-DCN, 2017 WL 4923733 (D.S.C. Oct. 31, 2017) (Norton) (Judicial estoppel does not bar discrimination action when Chapter 13 debtor listed “wrongful termination” as possible cause of action on schedules.).
Ordonez v. Air Serv Corp., No. 2:13CV67DAK, 2017 WL 4877301 (D. Utah Oct. 30, 2017) (Kimball) (Rejecting magistrate judge’s recommendation, judicial estoppel precludes Chapter 13 debtor’s employment discrimination action. Evidence of systematic manipulation of the bankruptcy court included conversion from Chapter 13 to Chapter 7 to remove lawsuit from estate.).
O’Connell v. Marshalls, Inc., No. 17-2438, 2017 WL 4539288 (E.D. Pa. Oct. 11, 2017) (Hey) (Slip and fall that occurred a year after Chapter 13 petition became property of the estate and debtor has standing under Bankruptcy Rule 6009 to bring lawsuit in nonbankruptcy court. Judicial estoppel does not bar the undisclosed slip and fall when affidavit of inadvertence of debtors precluded a finding of bad faith.).
Barnes v. Northwest Repossession, LLC, No. 14-cv-3116, 2017 WL 4410109 (N.D. Ill. Oct. 4, 2017) (Blakey) (Judicial estoppel bars action for wrongful repossession that accrued during prior Chapter 13 case when debtor consistently concealed the action through two Chapter 13 cases and lied about her concealment during discovery.).
Paul v. Hewlett Packard Enter. Co., No. 16-11965, 2017 WL 3668497, at *4 (E.D. Mich. Aug. 25, 2017) (Berg) (Judicial estoppel does not bar Chapter 13 debtor’s age discrimination action when debtor informed bankruptcy counsel of the claim before defendant moved to dismiss and, after discharging counsel, new counsel amended statements and schedules to reveal omitted lawsuit. “Plaintiff’s conduct here more closely resembles that of the plaintiff in [Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894 (6th Cir. Oct. 1, 2004) (Daughtrey, Clay, McCalla),] than in [White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. Aug. 11, 2010) (Clay, McKeague, Polster)]. Plaintiff asserts that he repeatedly informed his former bankruptcy counsel of this claim in this case, relying on counsel’s expertise in recognizing the need to amend the bankruptcy schedules. When he learned that such amendment was required but had not been completed, Plaintiff discharged his former bankruptcy counsel, retained new counsel, and the schedules have now been amended. By successfully amending his bankruptcy schedules, Plaintiff has demonstrated an absence of bad faith in his initial omission.”).
Davis v. FCA US LLC, No. 15-13773, 2017 WL 3601946 (E.D. Mich. Aug. 22, 2017) (Steeh) (After Chapter 13 case filed in 2008 and discharged in 2013, debtor’s charge of discrimination filed with EEOC in 2015 is barred by judicial estoppel notwithstanding that failures to disclose potential lawsuit occurred in years outside statute of limitations. Right-to-sue letter was received from EEOC in August of 2015, nearly two years after completion of Chapter 13 plan.).
Smith v. Haynes & Haynes, P.C., No. 2:14-cv-01334-RDP, 2017 WL 3613045 (N.D. Ala. Aug. 22, 2017) (Proctor) (Part of Chapter 13 debtor’s Fair Labor Standards Act complaint was dismissed based on judicial estoppel when debtor failed to schedule the cause of action; retaliation claims are dismissed because not supported by facts.).
Edwards v. Clinical Research Consultants, Inc., No. 2:15-cv-902-TMP, 2017 WL 2265834, at *6 (N.D. Ala. May 24, 2017) (Putnam) (Fair Labor Standards Act action is not barred by judicial estoppel: “[W]here the plaintiff filed her [Chapter 13] petition and was fully discharged more than a year before this complaint was filed, and where she testified that she was unaware that she had any viable claims until after her discharge from bankruptcy, there is no evidence . . . of the type of intentional deception that the courts have required for judicial estoppel. Moreover, there is no indication that Edwards stood to benefit from the failure to disclose this potential asset in a Chapter 13 case in which her creditors were ultimately paid in full.”).
Clark v. Advanced Composites Grp., No. 16 Civ. 6422 (GBD), 2017 WL 2266981, at *4
Basconcello v. Experian Info. Sols., Inc., No. 16-cv-06307-PJH, 2017 WL 1046969, at *4 (N.D. Cal. Mar. 20, 2017) (Hamilton) (Judicial estoppel does not bar Fair Credit Reporting Act and California Consumer Credit Reporting Agencies Act actions accruing after confirmation and before discharge in a Chapter 13 case. “[D]efendants have not established that the bankruptcy court ever ‘accepted’ the plaintiff’s position. Typically, acceptance is accomplished either through a confirmation order or a discharge order. . . . [T]he claims did not accrue until after confirmation. . . . Arguably, plaintiff should have supplemented or amended her schedules to disclose her FCRA and CCRAA claims to the bankruptcy court as a contingent asset. . . . Nonetheless, plaintiff has not received a discharge, so there has been no acceptance of the plaintiff’s position by the bankruptcy court. . . . Moreover, it is not clear that plaintiff’s failure to amend the schedules disadvantaged the creditors in a significant way, given that the potential damages here are likely nominal.”).
Burrows v. Experian Info. Sols., Inc., No. 16-cv-06356-PJH, 2017 WL 1046973, at *4 (N.D. Cal. Mar. 20, 2017) (Hamilton) (Judicial estoppel does not bar Fair Credit Reporting Act and California Consumer Credit Reporting Agencies Act actions accruing after confirmation and before discharge in a Chapter 13 case. “[D]efendants have not established that the bankruptcy court ever ‘accepted’ the plaintiffs’ position. Typically, acceptance is accomplished either through a confirmation order or a discharge order. . . . [T]he claims did not accrue until after confirmation. . . . Arguably, plaintiffs should have supplemented or amended their schedules to disclose their FCRA and CCRAA claims to the bankruptcy court as a contingent asset. . . . Nonetheless, plaintiffs have not received a discharge, so there has been no acceptance of the plaintiffs’ positions by the bankruptcy court. . . . Moreover, it is not clear that plaintiffs’ failure to amend the schedules disadvantaged the creditors in a significant way, given that the potential damages here are likely nominal.”).
Bryant v. Mississippi Div. of Medicaid, No. 4:13-CV-123-DMB-RP, 2017 WL 706316, at *3 (N.D. Miss. Feb. 22, 2017) (Brown) (Judicial estoppel bars race discrimination action when Debtor filed EEOC complaint in June of 2012, debtor filed Chapter 13 in February of 2013 and debtor did not schedule discrimination action. “‘[A] motive to conceal legal claims subsists in all bankruptcy cases in which a concealed legal claim would, if disclosed, form part of the bankruptcy estate and the debtor is aware of the claim’s monetary value[.]’”).
King v. Cole’s Poultry, LLC, No. 1:14-cv-00088-MPM-DAS, 2016 WL 7191701, at *1, *3
Finney v. Volvo Grp. N. Am., 562 B.R. 914, 919–21 (M.D. Tenn. Dec. 5, 2016) (Trauger)
(Chapter 13 debtor is judicially estopped to assert tort claim based on defective truck when debtor suspected defect during case and did not amend schedules or otherwise bring the potential asset into the case; that attorney advised debtor that no cause of action existed does not change result. Chapter 13 case was confirmed in November 2010. Truck wreck occurred on March 9, 2015. Discharge was entered in December 2015. Product-liability action with respect to truck was filed in March 2016. “A debtor in a bankruptcy proceeding has an ongoing duty to disclose to the bankruptcy court all assets, including potential legal claims that arise after the bankruptcy proceedings have commenced but before the case has been closed. . . . Motive for concealment has been found simply by the very nature of the bankruptcy proceedings, in which a petitioner would necessarily stand to benefit from not reporting assets, so as not to have those assets transferred to his creditors. . . . Once the defendant has met his burden, the burden shifts to the plaintiff to show a lack of bad faith in order to avoid the application of judicial estoppel. . . . A lack of bad faith may be found where the plaintiff has made efforts to inform the bankruptcy court or the trustee of his bankruptcy estate about his claim prior to the defendant’s assertion of a judicial estoppel defense, even if those efforts fall short of an official disclosure in the bankruptcy schedules. . . . [A]n affidavit by a plaintiff stating that his omission was unintentional is insufficient. . . . The plaintiffs have not put forth any evidence that they attempted to notify the bankruptcy court or the trustee of their potential claims, or raise with the bankruptcy court the question of how these claims might affect their bankruptcy case, prior to its close. The plaintiffs argue . . . while the bankruptcy proceedings were underway . . . they relied on the advice of counsel that they did not have a viable legal claim . . . . The court finds this position untenable. . . . [I]t is not unrealistic to expect a plaintiff
Cruse v. Sun Prods. Corp., 221 F. Supp. 3d 990, 996-98 (W.D. Tenn. Nov. 22, 2016) (Breen) (Action for workplace discrimination is barred by judicial estoppel when EEOC filings predated Chapter 13 petition, claim was not mentioned in schedules and amended schedules weren’t filed until day after defendant moved for summary judgment raising the issue of judicial estoppel. “[T]he bankruptcy court issued an order . . . confirming Plaintiff’s Chapter 13 bankruptcy plan. . . . [T]he order constituted an adoption by the bankruptcy court of Plaintiff’s contrary position, i.e., that he had no contingent, unliquidated legal claims. . . . [T]he Sixth Circuit has upheld the application of judicial estoppel even where the plaintiff did attempt to inform the bankruptcy court of the claim before the defense’s dispositive motion. . . . Plaintiff’s eventual disclosure of his claim to the bankruptcy court leaves much to be desired. . . . Plaintiff failed to include the case number, current status, causes of action asserted, or any other details regarding the case.”).
Bazzelle v. Compasspointe Healthcare Sys., No. 4:15-CV-4088, 2016 WL 6832643, at *3–*5 (W.D. Ark. Nov. 18, 2016) (Hickey) (Chapter 13 debtor is judicially estopped to maintain employment discrimination action when right-to-sue letter was issued in September 2015 and discharge was entered in December 2015. “Plaintiff concedes that she never amended her schedules to include her employment claims as assets, despite having nearly three months to do so prior to the bankruptcy court’s discharge of her debts and nearly seven months prior to the close of her bankruptcy case. . . . By discharging Plaintiff’s unsecured debts, the bankruptcy court effectively adopted Plaintiff’s position that she had no contingent legal claims. . . . Plaintiff would benefit from an unfair advantage if judicial estoppel is not applied.”).
White v. Circle K Stores, Inc., No. 2:16-CV-00057, 2016 WL 6465372 (W.D. La. Oct. 27, 2016) (Minaldi) (Chapter 13 debtor is judicially estopped to maintain personal injury action that arose during case when debtor did not amend schedules or account for cause of action in plan until after defendant moved for summary judgment. “[T]he bankruptcy court has accepted her position as it is currently administering her repayment plan. While the plan was determined before the underlying facts of this action occurred, the plaintiff still had a continuing obligation to disclose the personal injury claim, and the bankruptcy court could have adjusted the plan based on it.”).
Corbin v. Medical Ctr., Navicent Health, No. 5:15-CV-153, 2016 WL 5724992 (M.D. Ga. Sept. 29, 2016) (Royal) (Hearing is necessary to determine whether debtor had requisite bad intent for judicial estoppel purposes when ADA lawsuit was filed five months before petition, debtor amended schedules to add the lawsuit as an asset after the defendant filed a motion to dismiss and a month later debtor amended plan to include paying proceeds of lawsuit to creditors.).
Croslen v. Middleton, No. CV414-143, 2016 WL 5661103 (S.D. Ga. Sept. 29, 2016) (Moore) (Debtor is judicially estopped to maintain discrimination action against fire department when claim arose before filing of petition, debtor received a discharge without disclosing the claim and debtor filed lawsuit less than three months after discharge.).
Westbrooks v. Board of Trs. of E. Cleveland Pub. Library, No. 1:16-CV-1438, 2016 WL 4577715, at *3–*4 (N.D. Ohio Sept. 2, 2016) (Gwin) (In a Chapter 13 case dismissed without a discharge, failure to amend schedules to reveal employment action that arose during the case did not judicially estop debtor to prosecute. Chapter 13 case filed in 2007 was dismissed without a discharge in 2013. Debtor was terminated from employment in 2012 and filed a civil rights complaint in 2016. “Plaintiff’s bankruptcy proceeding was dismissed without a discharge. Courts often find that judicial estoppel should not apply in such cases. . . . Essentially, the bankruptcy court never adopts a ‘contrary position’ for purposes of judicial estoppel. . . . Even when bankruptcies are dismissed without discharge, some courts still apply judicial estoppel if plaintiff received an automatic stay in the bankruptcy. . . . Defendant has not shown that Plaintiff gained a particular advantage from the stay. . . . [I]nactivity in Plaintiff Westbrooks’ bankruptcy proceeding suggests she inadvertently failed to disclose her cause of action. The proceeding lasted from June 2007 to May 2013. There was no activity in the case from December 2007 to June 2011, and little activity after March 2012 when Plaintiff’s claim arose. At that time, Plaintiff was simply making payments under her Bankruptcy Plan. Nothing suggests that she purposefully hid her claim from the bankruptcy court. . . . [T]here is a qualitative difference between failing to list a cause of action on a Schedule B Personal Property form . . . —Plaintiff’s error here—and making an affirmative misrepresentation to the court. Plaintiff simply made a mistake. Thus, judicial estoppel does not apply.”).
Dufrene v. ConAgra Foods, Inc., 196 F. Supp. 3d 979, 982-84 (D. Minn. July 12, 2016) (Wright) (Chapter 13 debtor has standing to maintain unlawful termination action against employer that arose a year after the petition. Chapter 13 case was filed in December of 2013. A year later debtor’s employment was terminated. Debtor confirmed a Chapter 13 plan and, approximately five months after suing the employer for wrongful termination, debtor amended schedules to disclose the employment-related claims. Chapter 13 trustee advised the debtor to continue to prosecute the employment action and provide the trustee with periodic reports. “Dufrene’s employment-related legal claims . . . became the property of the bankruptcy estate because they arose . . . after his bankruptcy case commenced but before his bankruptcy case has been closed, dismissed, or converted. . . . Although a legal claim may be property of the bankruptcy estate, Section 1306(b) provides that the Chapter 13 debtor remains in possession of that property unless a confirmed plan or bankruptcy court order provides otherwise. . . . [A]t least six circuit courts of appeals have concluded that Chapter 13 debtors have standing to pursue causes of action in their own name on behalf of the bankruptcy estate. . . . [I]t is the Chapter 13 debtor’s possession and substantial control over the estate property . . . that establish[ ] the debtor’s standing.").
Momoh v. Wells Fargo Bank NA, No. 15-cv-04729-HSG, 2016 WL 8729939 (N.D. Cal. July 1, 2016) (Gilliam) (Judicial estoppel does not bar claims that creditor violated Telephone Consumer Protection Act and state law by repeatedly calling to collect debt after the petition.).
Thomas v. FTS USA, LLC, 193 F. Supp. 3d 623, 640 (E.D. Va. June 30, 2016) (Payne) (Participation in Fair Credit Reporting Act class action is not barred by judicial estoppel when cause of action accrued during Chapter 13 case before good-faith conversion to Chapter 7. Cause of action did not become property of Chapter 7 estate, and it cannot be said that debtor asserted a contrary position in the bankruptcy court. Chapter 13 plan was confirmed in December 2009. “The claims in this case accrued on March 12, 2012, when Thomas was denied employment without having received the pre-adverse action documents required by the FCRA. . . . Thomas filed a notice of voluntary conversion on January 10, 2014. . . . [I]t is not possible to find that the claims at issue here were ever part of the Chapter 7 estate. . . . Therefore, Defendants have not shown that Thomas asserted a contrary position in the bankruptcy court, and they are not entitled to summary judgment on the issue of judicial estoppel. . . .”).
Silva v. Pro Transp., Inc., No. 15-23028, 2016 WL 4809787 (S.D. Fla. Jan. 13, 2016) (Scola) (Judicial estoppel bars FLSA action when debtor did not amend schedules to reveal lawsuit until after confirmation of plan and after motion for summary judgment by defendant.).
Ussery v. Allstate Fire & Cas. Ins. Co., No. 5:13-CV-83 (LJA), 2015 WL 8773291, at *5-*8 (M.D. Ga. Dec. 14, 2015) (Abrams) (Applying either Georgia or federal law, judicial estoppel does not bar debtors' insurance claim for personal property destroyed in fire when debtors valued personal property at $2,700 in Chapter 13 petition and at $206,000 in insurance claim, but bankruptcy court allowed amendment to align values and modified plan to satisfy best-interests-of-creditors test. Insurance company denied coverage after fire destroyed debtors' house and personal property. Fire occurred after Chapter 13 petition. In schedules, debtors valued personal property at $2,700. In loss form submitted to insurance company, debtors valued personal property at policy limit of $206,000. After denial of insurance coverage and before receiving a discharge, debtors amended their bankruptcy schedules to include correct inventory and modified the Chapter 13 plan to require that any recovery in the insurance action would be paid to unsecured creditors. "[B]ecause this is a diversity action that arose in Georgia, Georgia's doctrine of judicial estoppel applies. . . . While Georgia courts generally follow the federal doctrine of judicial estoppel, they do not do so in every respect. Significantly, while the federal doctrine does not permit a plaintiff to avoid the application of judicial estoppel simply by amending his or her bankruptcy petition after an inconsistency is discovered, see [Burns v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. May 20, 2002) (Carnes, Fay Hunt)], 'Georgia courts do permit such amendments. Under Georgia law, a plaintiff may amend an erroneous bankruptcy schedule to avoid judicial estoppel.' . . . It is undisputed that Plaintiffs amended their Bankruptcy Petition while their bankruptcy was still pending . . . . The Bankruptcy Judge overseeing Plaintiffs' bankruptcy accepted the amendment . . . . Consequently, under Georgia law, Plaintiffs can no longer be said to have taken a position in this proceeding that is inconsistent with the position taken in their bankruptcy proceeding. Georgia courts also refuse to apply judicial estoppel where a plaintiff successfully amends his bankruptcy petition because the plaintiff has gained 'no unfair advantage in bankruptcy court. . . . ' . . . The same holds true here. . . . [A]ny recovery Plaintiffs obtain from this lawsuit ' . . . will be dispersed [sic] to unsecured creditors.' . . . [T]o allow Defendant to use judicial estoppel . . . would . . . punish Plaintiffs' innocent creditors . . . . Even if . . . the federal doctrine of judicial estoppel applied, Plaintiffs would still prevail. . . . Although Plaintiffs' amendment to their Bankruptcy Petition would not automatically preclude the application of judicial estoppel, upon weighing the [New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (May 29, 2001),] factors, the Court would still refuse to apply the doctrine . . . . [U]nlike the plaintiff in Burnes, Plaintiffs amended the Bankruptcy Petition while their bankruptcy was still pending . . . . [T]he Bankruptcy Court accepted Plaintiffs' amendment and modified the confirmed plan. . . . [I]t cannot be said that Plaintiffs successfully persuaded 'a tribunal to accept the earlier position, so that judicial acceptance of the inconsistent position in a later proceeding creates the perception that either court was misled.' . . . [B]ecause Plaintiffs successfully amended their Bankruptcy Petition prior to receiving a discharge, they derived no unfair advantage . . . . While 'there is no requirement that the party invoking judicial estoppel show prejudice,' . . . that there was no prejudice to Defendant certainly weighs against applying the doctrine here.").
Weaver v. Everbank, No. 3:15-cv-83-DPM, 2015 WL 13357897, at *1 (E.D. Ark. Nov. 19, 2015) (Marshall) (Citing Cable v. Ivy Tech State College, 200 F.3d 467 (7th Cir. Dec. 28, 1999) (Easterbrook, Kanne, Evans), Chapter 13 debtor has standing to pursue insurance proceeds with respect to home. “The nature of the Chapter 13 proceeding gives the Weavers a sufficient stake in the outcome to satisfy Article III’s injury requirement.”).
Hirota v. General Nutrition Corp., No. 15-00191, 2015 WL 6673688 (D. Haw. Oct. 29, 2015) (Kobayashi) (Chapter 13 debtor has standing to pursue personal injury and product-liability actions when she would be entitled to any surplus after creditors were paid and could exempt some portion of any recovery.).
Ware v. U.S. Bank Nat'l Ass'n, 131 F. Supp. 3d 573, 576 (S.D. Miss. Sept. 17, 2015) (Jordan) (Citing Wells Fargo Bank, N.A. v. Oparaji (In re Oparaji), 698 F.3d 231 (5th Cir. Oct. 5, 2012) (Reavley, Smith, Clement), debtors not judicially estopped to pursue undisclosed action against mortgagee when bankruptcy case was dismissed without a confirmed plan or discharge. "[A] bankruptcy court's acceptance of a debtor's schedules and bankruptcy plan is negated when the bankruptcy court later 'dismisse[s] [the d]ebtor's bankruptcy plan without granting a discharge.'").
Hernandez v. Cook Cnty. Sheriff's Office, No. 07 C 855, 2015 WL 5307627 (N.D. Ill. Sept. 10, 2015) (Durkin) (Oral disclosure of pending state court litigation at meeting of creditors raised material issue of fact with respect to whether debtor intentionally concealed prepetition cause of action for purposes of judicial estoppel.).
Marinache v. Stern, No. 14-cv-03055-HRL, 2015 WL 4538808, at *3 (N.D. Cal. July 27, 2015) (Lloyd) ("[T]he issue of judicial estoppel is properly decided on summary judgment, not on a motion to dismiss.").
Smith v. Werner Enters., Inc., No. 14-0107-WS-B, 2015 WL 4512318, at *2-*3 (S.D. Ala. July 21, 2015) (Steele) (On second motion for summary judgment, judicial estoppel does not apply when defendant offered only that plaintiff may have had "questions" about overtime pay sometime prior to bankruptcy filing. "The defendant assumes that having 'questions' about overtime pay is, in fact and in the law of judicial estoppel, the same thing as being aware of a potential claim for overtime pay, but it offers no analysis and no authority to support its assumption. The Court has no duty to fill this void on the defendant's behalf, and it declines to do so. While the plaintiff, along with other employees, met with an attorney, the defendant offers no evidence of what the plaintiff heard at that meeting and no evidence of what the plaintiff understood following the meeting. . . . While the plaintiff's attendance at a meeting with counsel and other employees may support an inference that he was from that point aware of a potential FLSA claim, without more information this evidence cannot be dispositive as to that point. . . . While it may no longer be uncontroverted that the plaintiff was, in a legally relevant sense, unaware of a potential FLSA claim until February 2014, neither is it uncontroverted that he was, in that legally relevant sense, so aware at any earlier point. There is at best a genuine issue of material fact, and the defendant cannot obtain summary judgment in the face of such an issue."), on further consideration of 65 F. Supp. 3d 1305, 1311-12 (S.D. Ala. Nov. 21, 2014) (Steele) (Judicial estoppel does not bar FLSA action when debtor amended schedules in second year of five-year plan, three months after learning of FLSA claim and two months after filing of action; no deadlines or milestones passed in bankruptcy case during period of nondisclosure. "The difference between the failure to disclose an existing claim in an original filing and the actual but untimely disclosure of a new claim in an amended filing is significant. The former involves the judicial submission of an affirmative misrepresentation, one that is wrong when filed and that is never corrected. The latter involves the judicial submission of an accurate representation that later events cause to become inaccurate and that is eventually corrected. . . . The length of time a misstatement remains uncorrected is also significant. The longer a debtor permits a misrepresentation to remain, the stronger the inference that the reason is intent. This is especially so when an initially accurate schedule becomes wrong due to subsequent events, since there is no precise deadline for amending schedules and since it is no more uncommon or suspicious to briefly delay filing an amended schedule than it is to delay filing an original petition or any other pleading. . . . The delay here was two months and ten days. 'Judicial estoppel does not operate because a party did not move as quickly as she could have; it operates only against cold manipulation. . . .' . . . The occurrence of key events, or the passage of key deadlines, while a debtor delays correcting a schedule is also significant, because it reflects the debtor's receipt of a benefit from his delay and supports an inference that he sought by delay to obtain the benefit . . . . The defendant argues that judicial estoppel must apply here because the plaintiff did not amend his bankruptcy schedules until after the defendant filed the instant motion. . . . 'Such a bright-line rule, however, represents an unprecedented extension of judicial estoppel,' and such evidence 'has never been treated as dispositive proof of intent to mislead.' . . . When . . . the passage of substantial time and the receipt of benefit have already occurred, the debtor's amendment in response to a motion for summary judgment on judicial estoppel grounds cannot easily undo their damage. Here, however, the plaintiff amended his schedules barely two months after suit was filed and long before any possible benefit from nondisclosure could be realized. In light of those circumstances, that the plaintiff amended after the defendant asserted judicial estoppel is at best ambiguous. Because this matter is before the Court on motion for summary judgment, the defendant does not win in the face of ambiguity.").
Copeland v. Birmingham Nursing & Rehab. Ctr. E., LLC, No. 2:14-cv-1523-JHH, 2015 WL 4068647, at *5 & *7 (N.D. Ala. July 1, 2015) (Hancock) (Failure to amend schedules to disclose EEOC charge filed four months prior to full-payment discharge judicially estopped debtor's employment discrimination complaint. Debtor "made a statement under oath in her Chapter 13 proceeding that is inconsistent with her statements in this lawsuit. She had a continuing statutory duty to amend her schedule of assets in her bankruptcy proceeding to reflect her potential employment discrimination claim against Defendants. . . . By failing to disclose her claim, she effectively represented to the bankruptcy court that she had no legal claims and then later pursued her undisclosed claims against Defendants. . . . Both of these actions were taken under oath and are 'clearly inconsistent.'" Full repayment under completed plan did not defeat judicial estoppel. "'[A]pplication of judicial estoppel does not require that the nondisclosure must lead to a different result in the bankruptcy proceeding.' . . . [Further,] that Plaintiff informed her counsel of the potential claims in this case and that counsel allegedly de-valued those claims and failed to amend the bankruptcy schedule is no defense against the application of judicial estoppel.").
Harper-Cox v. Gateway-Detroit East, No. 14-13048, 2015 WL 3652750, at *6 (E.D. Mich. June 11, 2015) (Duggan) (Judicial estoppel does not preclude employment discrimination action belatedly disclosed in bankruptcy case when it could not "be said 'that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled[.]' . . . Because '[t]he purpose of the doctrine is to protect the courts from the perversion of judicial machinery[,]' . . . and because the bankruptcy court has permitted Plaintiff to pursue this cause of action (implicitly acknowledging that such a course of action is preferable to Plaintiff's creditors), the Court simply sees no basis for applying judicial estoppel to bar Plaintiff's employment claims, as such a result would impinge upon this Court's truth-seeking function.").
Marshall v. Sandersville R.R. Co., No. 5:12-CV-425 (MTT), 2015 WL 3648603 (M.D. Ga. June 10, 2015) (Treadwell) (For judicial estoppel purposes, it could not be said that debtor intended to make mockery of judicial system when he failed to disclose potential FELA claim that arose after final payment under five-year plan but before bankruptcy court entered discharge and closed case.).
Hosea v. State Farm Fire & Cas. Co, No. 14-0414-CG-B, 2015 WL 13678039 (S.D. Ala. May 21, 2015) (Granade) (Chapter 13 debtor is judicially estopped to pursue State Farm for value of personal property lost in fire when debtor did not schedule the action in current Chapter 13 case and debtor valued personal property at significantly less in schedules in prior Chapter 13 case. Chapter 13 trustee has standing to intervene and is not estopped to maintain action against State Farm on behalf of the Chapter 13 estate.).
Rabidou v. Wachovia Corp., No. 5:14-cv-03684-PSG, 2015 WL 1737926 (N.D. Cal. Apr. 8, 2015) (unpublished) (Grewal) (Judicial estoppel bars action for wrongful refusal to modify mortgage when facts giving rise to action should have been known to debtor before Chapter 13 petition; amending schedules two and one-half years after petition cannot cure failure to disclose.).
Loftis v. Kenneth O. Lester Co., No. 3-15-0095, 2015 WL 1401206, at *1 (M.D. Tenn. Mar. 25, 2015) (Campbell) (Debtor not judicially estopped to pursue wrongful termination action under Tennessee Disability Act when disclosure of "'disability claim regarding a back injury'" in schedules was broad enough to include wrongful termination action against former employer. Chapter 13 trustee supported debtor's pursuit of action.).
Smith v. AOK Mem’l Props., LLC, No. 1:14-CV-2108-ODE, 2015 WL 12859414 (N.D. Ga. Feb. 10, 2015) (Evans) (Removed state court lawsuit over faulty roof repairs is subject to mandatory abstention and remand.).
Jones v. Bob Evans Farms, Inc., No. 13-0974-CV-W-ODS, 2015 WL 437921 (W.D. Mo. Feb. 3, 2015) (Smith) (Judicial estoppel precluded debtor's pursuit of discrimination action commenced during Chapter 13 case when action was not disclosed, plan did not pay creditors in full, debtor received discharge while action was pending, and this was second failure to disclose an action during case.).
Smith v. Dallas Cnty. Hosp. Dist., No. 3:13-CV-0792-G (BN), 2014 WL 6991482, at *5-*6 (N.D. Tex. Dec. 9, 2014) (Fish) (Discrimination and retaliation complaint against former employer is barred by judicial estoppel when debtor failed to disclose prepetition action in schedules or in any amendment filed prior to confirmation. Recent amendment to include undisclosed action "is of no consequence because, '[w]hen reviewing potential motive, the relevant inquiry is intent at the time of nondisclosure.' . . . Although Plaintiff alleges . . . that her bankruptcy attorney knew about her race discrimination and retaliation claims and that she requested several times that he amend her asset schedules, these assertions, even if true, are insufficient to overcome the application of judicial estoppel. . . . [W]ith respect to the inadvertence element, a party's 'representation that she did not know she had to disclose—and that she relied on the advice of her attorney—is unavailing on this prong of the test.'").
Collucci v. Tyson Farms, Inc., No. 3:14-cv-397-JAG, 2014 WL 6879927, at *1 (E.D. Va. Dec. 4, 2014) (Gibney) (Judicial estoppel did not bar employment action because bankruptcy court had not "accepted" position that debtor had no legal claims when court had "yet to grant the plaintiff relief or close his bankruptcy case." Plan confirmation alone does not satisfy the acceptance element of judicial estoppel.).
Flores-Febus v. MVM, Inc., 45 F. Supp. 3d 175 (D.P.R. Sept. 23, 2014) (Besosa) (Debtor judicially estopped to maintain prepetition employment discrimination claim when she failed to include claim in original or postconfirmation schedules and plan was confirmed based on absence of claim. Federal law governs application of judicial estoppel in diversity cases.).
Cotita v. Verizon Wireless, 54 F. Supp. 3d 714, 719-22 (W.D. Ky. Sept. 18, 2014) (Heyburn) (Judicial estoppel bars postpetition wrongful termination action commenced 11 days before entry of discharge after completion of payments in 100% plan; disclosure to trustee was not sufficient. Citing Kimberlin v. Dollar General Corp., 520 F. App'x 312 (6th Cir. Mar 20, 2013) (unpublished) (Guy, Sutton, Cook), White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. Aug. 11, 2010) (Clay, McKeague, Polster), and Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894 (6th Cir. Oct. 1, 2004) (Clay, Daughtrey, McCalla), "'[a]pplying judicial estoppel under these circumstances recognizes the importance of the bankruptcy debtor's affirmative and ongoing duty to disclose assets, including unliquidated litigation interests.'" Disclosure to trustee, and trustee's affidavit that modification of plan would be wholly inappropriate, did not prevent dismissal. "That the value of the claim was unknown and unlikely to cause a modification is quite beside the point. [Debtor] had a duty to report assets and potential assets and to take steps to amend incorrect schedules. . . . [T]he bankruptcy court adopted the contrary position when it granted [debtor] a discharge . . . . 'It is always in a Chapter 13 petitioner's interest to minimize income and assets.' . . . [Debtor's] omissions garnered him [no] unfair advantage. But the Court does find that [debtor's] omission was not due to either a mistake or inadvertence. . . . [Debtor] took no affirmative steps to disclose his claims except for apprising his bankruptcy trustee. He failed to notify both the bankruptcy court and his creditors before receiving a discharge. . . . [H]e had known of these possible claims for many months. . . . [Debtor]—who was terminated in March 2013 and filed suit in December 2013—sat on his possible claims for nine months without ever making a full disclosure. His actions do not indicate good faith. . . . Late efforts to correct omissions are given less weight in a motive/bad faith analysis. . . . [Debtor's] actions are patently distinguishable from cases like Eubanks, where plaintiffs took 'constant affirmative actions' to inform the bankruptcy trustee and the bankruptcy court of their claim. . . . [Debtor's] knowing failure to fully disclose his potential claim . . . shows bad faith.").
Combs v. CitiFinancial, Inc., No. 5:13CV3291, 2014 WL 4387312 (W.D. La. Sept. 3, 2014) (Stagg) (Judicial estoppel applied sua sponte to bar challenge to mortgage when action was not disclosed in confirmed case.).
Lewis v. Terrebonne Gen. Med. Ctr., No. 13-4864, 2014 WL 4231176 (E.D. La. Aug. 26, 2014) (Wilkinson) (Citing Love v. Tyson Foods, Inc., 677 F.3d 258 (5th Cir. Apr. 4, 2012) (King, Haynes, Wiener), debtor judicially estopped to maintain discrimination and retaliation action against former employer when claims not disclosed until defendant moved for summary judgment, 22 months after bankruptcy filed.).
Thompson v. Village of Monee, No. 12 CV 5020, 2014 WL 4175915 (N.D. Ill. Aug. 22, 2014) (unpublished) (St. Eve) (Judicial estoppel precludes undisclosed harassment and discrimination actions that accrued prior to filing of prior Chapter 7 case; claims accrued after prior filing were not property of Chapter 7 estate and did not have to be disclosed. Disclosure of claims in Statement of Financial Affairs rather than Schedule B of subsequent Chapter 13 case sufficient to avoid judicial estoppel.).
Goldson v. Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP, No. 13 Civ. 2747 (GBD)(FM), 2014 WL 3974584 (S.D.N.Y. Aug. 13, 2014) (Daniels) (Undisclosed employment discrimination claim not barred by judicial estoppel when bankruptcy court did not adopt debtor's position through confirmed plan or discharge order. Debtor free to amend schedules to include undisclosed claims.).
Young v. City of Mobile, No. 13-00586-KD-B, 2014 WL 3870716, at *4 (S.D. Ala. Aug. 7, 2014) (DuBose) (Distinguishing De Leon v. Comcar Indus., Inc., 321 F.3d 1289 (11th Cir. Feb. 18, 2003) (per curiam), and comparing Strauss v. Rent-A-Center, Inc., 192 F. App'x 821 (11th Cir. July 11, 2006) (per curiam), debtor not judicially estopped to prosecute discrimination claim when schedules were amended to include undisclosed lawsuit prior to plan confirmation, discharge or defendant's summary judgment motion. "Although the Eleventh Circuit has not explicitly held that judicial acceptance is a required element in the application of judicial estoppel, the court has reversed a grant of summary judgment where such acceptance was absent. . . . Because [debtor] amended his bankruptcy filings to include this claim before either his debt had been discharged or his Chapter 13 plan was confirmed, [debtor] was 'not successful in "persuading a tribunal to accept the earlier position, so that judicial acceptance of the inconsistent position in a later proceeding creates the perception that either court was misled."'").
Zyla v. American Red Cross Blood Servs., No. C-13-2464 EMC, 2014 WL 3868235 (N.D. Cal. Aug. 6, 2014) (unpublished) (Chen) (Dismissal set aside when debtor's confirmed case was "reprocessed"—stipulation entered with trustee to account for pending litigation and disposition of any proceeds and schedules were amended to disclose employment action. Motion to modify confirmed plan not required before additional funds are available to creditors. Defendant not precluded from asserting judicial estoppel as an affirmative defense and further developing record on issue of inadvertence or mistake.), granting motion for relief from judgment No. C-13-2464-EMC, 2014 WL 1266852, at *4 (N.D. Cal. Mar. 27, 2014) (unpublished) (Chen) (Amended schedules without more not sufficient to overcome default rule that "'[i]f a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy schedules and obtains a discharge (or plan confirmation), judicial estoppel bars the action.'" To escape presumption of deceit and permit evidence of inadvertence or mistake, bankruptcy court must process newly disclosed information in context of confirmed plan.).
Thomas v. Indiana Oxygen Co., 32 F. Supp. 3d 983, 992-93 (S.D. Ind. July 15, 2014) (Magnus-Stinson) (Debtor has continuing duty to disclose cause of action acquired postpetition, but debtor not judicially estopped to pursue full damages in undisclosed discrimination action when it was early in discrimination litigation, evidence of purposeful nondisclosure was lacking, there was no substantial gain to debtor from nondisclosure, and disclosure was made promptly after defendant's motion. "Allowing [debtor] to continue this litigation on behalf of the bankruptcy estate without a damages cap will not encourage debtors to be dishonest in district courts. When a plaintiff is 'caught' for failing to disclose a lawsuit to the bankruptcy court, there is no guarantee that the bankruptcy court will allow the late disclosure or that the district court will determine that the nondisclosure was inadvertent and allow the lawsuit to proceed. . . . Moreover, the determination whether to cap damages and whether [debtor] can benefit by receiving any damages over the amount owed to his creditors is likely one better suited for the Bankruptcy Court.").
Cervenan v. Thermal Supply, Inc., No. 1:13-cv-00498-CL, 2014 WL 2702557, at *3 (D. Or. June 13, 2014) (Panner) (Judicial estoppel did not preclude wrongful termination suit that accrued near end of debtor's plan. "Plaintiff[']s claim had not accrued when he filed his bankruptcy schedules; thus the original bankruptcy plan was not informationally deficient. Indeed, by the time Plaintiff was terminated . . . , his three year bankruptcy plan was drawing to a close. Plaintiff has submitted a declaration stating that he believed it was in fact closed. He also believed that the re-opening of his bankruptcy case was merely to correct the record and finalize a payment that he had already made. . . .While full disclosure in bankruptcy is essential to the functioning of the bankruptcy system, the Court does not find that the plaintiff-debtor obtained an unfair advantage by failing to amend his bankruptcy schedules when he reopened his case merely to correct an error.").
Parsons v. Southern Tenn. Med. Ctr., LLC, No. 11-CV-298, 2014 WL 2159749, at *6 (E.D. Tenn. May 23, 2014) (Collier) (Debtor judicially estopped to pursue ADA action that accrued postconfirmation. Citing Lewis v. Weyerhaeuser Co., 141 F. App'x 420, 424 (6th Cir. July 6, 2005) (Zatkoff, Cole, Sutton), debtor has continuing duty to disclose all causes of action; failure to amend schedules to disclose claim that accrued postpetition is an inconsistent position for collateral estoppel purposes. Unrelated amendment of confirmed plan after cause of action accrued constituted adoption of inconsistent position by bankruptcy court. A Chapter 13 debtor, except in a unique case, always has motive to conceal as they stand to benefit from nondisclosure. Debtor's affidavit that she was not aware of duty to amend schedules was not sufficient to demonstrate good faith when amendment to schedules came only after defendant pointed out failure to disclose. That defendant "suffer[ed] no detriment from [debtor's] failure to disclose this cause of action is of little consequence.").
Goldson v. Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP, No. 13 Civ. 2747 (GBD) (FM), 2014 WL 1910624, at *8 (S.D.N.Y. May 12, 2014) (Maas) (Debtor lacked standing to pursue undisclosed postpetition employment discrimination action; trustee can pursue claim. Action not barred by judicial estoppel because until bankruptcy court "takes some action based on [debtor's] representations, such as amending her plan, closing her case, or discharging her debts, it has not truly adopted her inconsistent position.").
Summersill v. Kelly, No. 5:12-cv-667-Oc-10PRL, 2014 WL 1333206, at *4 (M.D. Fla. Apr. 3, 2014) (Hodges) (Judicial estoppel barred unscheduled ADA action notwithstanding that debtor's attorney knew of action and amended schedules after issue was raised. Debtor had motive to conceal action because she would obtain a financial advantage: "[Nondisclosure] most likely impacted the distribution and payment plans to her creditors.").
Pfeifer v. Federal Express Corp., No. 09-CV-1248-EFM, 2014 WL 1246737, at *7 (D. Kan. Mar. 26, 2014) (unpublished) (Melgren) (Judicial estoppel precluded retaliation action based on failure to disclose appeal pending at time of bankruptcy petition; trustee not estopped, but any award limited to current debt of $157,486.68. That judgment on appeal was final, on the merits, and against debtor nearly two years before the bankruptcy filing did not alter application of judicial estoppel. "While it may be true that any potential proceeds from Plaintiff's retaliation claim against Defendant will go to satisfy Plaintiff's creditors, this fact alone simply fails to negate Plaintiff's unfair advantage. 'Sufficient detriment is shown here because the omitted disclosures would have assisted the judge in making fully informed decisions about the bankruptcy plan and would have enabled creditors, who relied upon the schedules, to determine the appropriate course of action.' While both Plaintiff and the Trustee make the argument that knowledge of this claim would not have changed either the Bankruptcy Court's decision to confirm the Plan or the creditors' commitment to the Plan, such a fact is nearly impossible to actually know. 'The impact of a debtor's nondisclosure must be measured in more than monetary terms because it affects creditors' willingness to negotiate their claims and enhances the debtor's bargaining position by making the pot that creditors look to for recovery appear smaller than it really is.'").
Cagle v. C & S Wholesale Grocers Inc., 505 B.R. 534, 538-40 (E.D. Cal. Feb. 24, 2014) (England) (Debtor judicially estopped to pursue postpetition wage and hour action against former employer; plan amendment two months after service of action but more than two years after knowledge of potential class action not sufficient. "The benefit of the automatic stay is a sufficient 'unfair advantage' to satisfy the third prong of the [judicial estoppel] analysis. . . . 'In doing so, [Plaintiff] "sought bankruptcy protection while subverting the bankruptcy process by nondisclosure."' . . . [I]t is appropriate to invoke judicial estoppel to protect the integrity of the bankruptcy process. . . . '. . . Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy, but fails to amend his schedules or disclosure statements to identify the cause of action as a contingent asset.'").
Owens v. Dolgencorp, LLC, No. 3:12-cv-313, 2013 WL 6795415, at *2 (S.D. Ohio Dec. 19, 2013) (Rice) (Citing Stephenson v. Malloy, 700 F.3d 265 (6th Cir. Oct. 30, 2012) (Siler, White, Reeves), trustee substituted as plaintiff in FMLA action. "[R]egardless of whether the FMLA claims brought by Plaintiff [are] barred by the doctrine of judicial estoppel, the Bankruptcy Trustee has the ability to pursue those same exact claims on behalf of the bankruptcy estate. In terms of judicial economy, it makes little sense to dismiss Plaintiff's FMLA claims on judicial estoppel grounds only to have the Bankruptcy Trustee file a new lawsuit reasserting those same claims.").
Amash v. Home Depot U.S.A., Inc., No. 1:12-cv-837, 2013 WL 6592205, at *4 (N.D.N.Y. Dec. 16, 2013) (McAvoy) (Failure to "identify his claims against Home Depot for unpaid overtime as asset in his Chapter 13 [case] . . . warrants application of the doctrine of judicial estoppel and dismissal[.]" Debtor opted into FLSA action over three years after confirmation of 40% 60-month plan. Debtor never amended schedules or otherwise notified bankruptcy court of FLSA claim despite order deeming plan complete on debtor's motion, and discharge.).
Amash v. Home Depot U.S.A., Inc., 503 B.R. 232, 236-38 (N.D.N.Y. Dec. 16, 2013) (McAvoy) (Collateral estoppel bars undisclosed FLSA claim in continuing Chapter 13 case; amendment to schedules rejected. Debtor "advanced in the Bankruptcy Court that he had no claims or lawsuits when, in fact, he had [opted-in to FLSA collective litigation prior to Chapter 13 filing]. . . . Moreover, the Bankruptcy Court, in reliance on [debtor's] factual statements of assets (which omitted his current claims) entered an order voiding . . . mortgage lien, reclassified the mortgage lien as unsecured, and confirmed Plaintiff's Second Amended Chapter 13 Plan. Thus, [debtor] 'advanced an inconsistent position' in the bankruptcy proceeding (i.e. that had no outstanding claims or lawsuits against another party), and this 'inconsistent position [was] adopted by the [Bankruptcy Court] in some manner.' . . . [Debtor's] purported belief that he 'had no idea the Home Depot case was real,' and that he 'thought the whole thing was all a scam,' are belied by his consent to join the . . . action and by the several telephone calls he received from attorneys' offices that discussed his claims with him. . . . [T]here is insufficient support for the inference that Plaintiff's failure to disclose this litigation . . . in any of his bankruptcy filings was the result of good faith mistake or unintentional error. . . . Plaintiff had knowledge of the claims. . . . [T]he reasonable inference may be drawn that Plaintiff had a motive to conceal the claims from the instant and predecessor litigations, that is, he concealed this 'asset' in order to have his bankruptcy reorganization plan approved and to obtain re-classification of his debt. . . . Moreover, there is insufficient basis upon which to allow Plaintiff to amend his bankruptcy petition to declare his claims in the instant case. . . . In light of the fact that the Bankruptcy Court has already re-classified certain of Plaintiff's assets and confirmed his Second Amended Chapter 13 Plan, it would violate the integrity of the bankruptcy system and, therefore, would be contrary to the doctrine of judicial estoppel.").
Dauscha v. UP Commc'ns Servs. LLC, No. 4:13-cv-50-HSM-SKL, 2013 WL 6388566 (E.D. Tenn. Dec. 6, 2013) (Lee) (Judicial estoppel does not bar trustee's right to intervene as plaintiff in debtor's age discrimination action.).
Comein v. City of Country Club Hills, No. 11 C 5766, 2013 WL 5408640, at *3-*4 (N.D. Ill. Sept. 26, 2013) (Lefkow) (Judicial estoppel does not preclude civil rights action omitted from schedules when plan is modified to pay non-exempt proceeds to creditors. "[W]here a bankruptcy case remains open, the nondisclosure can be corrected to avoid the inequity entailed in allowing a debtor to benefit while the creditors are forced to accept less than is owed. . . . CCH has no evidence suggesting that [debtor's] nondisclosure was in bad faith and points to no unfair advantage that would accrue to her were she to be allowed to proceed here, so long as the litigation inures to the benefit of the estate. Where the creditors will not be prejudiced by her initial wrongdoing and will benefit if she wins this case, equity favors allowing her to proceed even if [debtor] ultimately benefits as well (should a recovery exceed the amount owed to creditors). Indeed, the Seventh Circuit has warned against applying the doctrine of judicial estoppel in such a situation.").
Crankshaw v. CSX Transp., Inc., No. 1:11-CV-377, 2013 WL 5276573, at *4 (E.D. Tenn. Sept. 18, 2013) (Collier) (Distinguishing Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. Feb. 5, 2010) (Fay, Anderson, Marcus), judicial estoppel not applied when cause of action accrued after debtor had completed payments under 100% plan. "[W]hat a plaintiff stood to gain by concealing his claim is relevant to considering whether he had any motive to do so. Because Plaintiff . . . had nothing to gain, . . . the Court concludes Defendant has failed to demonstrate Plaintiff had motive to conceal this claim.").
Payne v. Central Def. Servs., LLC, No. 2:11-cv-02664-JPM-tmp, 2013 WL 3974575 (W.D. Tenn. Aug. 2, 2013) (McCalla) (Judicial estoppel bars prepetition discrimination claim that was not disclosed in bankruptcy case prior to defendant's motion to dismiss. Neither misunderstanding of duty to disclose, reliance on attorney error, disclosure of bankruptcy case in district court, nor after-the-fact amendment of schedules and statements overcomes inference of bad faith.).
Fulmore v. M & M Transp. Servs., Inc., No. 1:11-cv-00389-TWP-TAB, 2013 WL 3864205, at *3 (S.D. Ind. July 23, 2013) (Pratt) (Judicial estoppel does not cap debtor's damages to amount remaining due under confirmed plan. Even though debtor "waited until he was 'caught'" to disclose discrimination lawsuit to trustee and bankruptcy court, "his swift corrective action cures the previous concealment." "[T]here is not strong evidence that [debtor] intentionally concealed this lawsuit for gain, exercised deliberate or intentional manipulation or that he received a substantial benefit from the failure to disclose. Additionally, . . . [debtor's] Chapter 13 Plan is still ongoing, and he has filed a Motion to Modify the Confirmed Chapter 13 Plan to reflect any monies recovered from this lawsuit. . . . The Bankruptcy Court and Trustee are now on notice of this lawsuit. If and when any monies are received, the Court trusts that the Bankruptcy Court will proceed accordingly."), subsequent determination of No. 1:11-CV-00389-TWP, 2013 WL 3782022 (S.D. Ind. July 18, 2013) (Pratt) (As long as Chapter 13 case is ongoing, postconfirmation disclosure of discrimination action preserves debtor's ability to pursue the action on behalf of the estate. Left undecided, whether debtor's recovery is limited by judicial estoppel to amount necessary to pay off plan.).
Curry v. Aerotek, Inc., No. 2:11-cv-02913-SHM-cgc, 2013 WL 3146812 (W.D. Tenn. June 18, 2013) (Mays) (Partial amendment to schedule cause of action in Schedule B but not in Statement of Financial Affairs was not sufficient to avoid effect of judicial estoppel under White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. Aug. 11, 2010) (Clay, McKeague, Polster).).
Graham v. U.S. Bank, N.A., No. 13-cv-01613 NC, 2013 WL 2285184 (N.D. Cal. May 23, 2013) (unpublished) (Cousins) (Complaint alleging misrepresentation of ability to modify loan was dismissed when debtor did not schedule cause of action.).
Abreu v. Zale Corp., No. 3:12-CV-2620-D, 2013 WL 1949845 (N.D. Tex. May 13, 2013) (unpublished) (Fitzwater) (Judicial estoppel barred unscheduled Fair Labor Standards Act complaint. Debtor had motive to conceal by not scheduling cause of action.).
Royal v. R & L Carriers Shared Servs., L.L.C., No. 3:12-cv-00714, 2013 WL 1736658, at *7 (E.D. Va. Apr. 22, 2013) (unpublished) (Gibney) (Judicial estoppel did not bar employment discrimination suit; debtor should have opportunity to amend bankruptcy petition to allow additional recovery by creditors. Permitting amendment "protects the parties whose interests truly hang in the balance when a bankruptcy debtor pursues litigation, even if that debtor might have acted unjustly in some sense. In addition, a practical advantage exists when the bankruptcy proceedings have yet to terminate. . . . The bankruptcy court and trustee can thus take any suitable measures without much inconvenience.").
Miller v. Greenleaf Orthopaedic Assocs. S.C., No. 10 C 5867, 2012 WL 4049409 (N.D. Ill. Sept. 13, 2012) (unpublished) (Zagel) (Judicial estoppel would bar debtor's recovery of monetary damages in undisclosed wrongful termination action, but nonmonetary remedies must be tried. Chapter 13 trustee was given opportunity to pursue monetary claim for benefit of creditors.).
Garcia v. American Sec. Ins. Co., No. 8:12-cv-00728-EAK-EAJ, 2012 WL 2589862 (M.D. Fla. July 3, 2012) (unpublished) (Kovachevich) (Cause of action was not disclosed in Chapter 13 schedules, but case was dismissed and debtor was now proper party to bring action.).
Barker v. Asset Acceptance, LLC, 874 F.Supp.2d 1062 (D. Kan. June 5, 2012) (Robinson) (Judicial estoppel precluded pursuit of undisclosed Fair Debt Collection Practices Act claim.).
Tucker v. Closure Sys. Int'l, No. 1:10-cv-1476-RLY-TAB, 2012 WL 1997866 (S.D. Ind. June 4, 2012) (unpublished) (Young) (Judicial estoppel would not bar trustee's pursuit of EEOC claim, but if trustee abandoned claim, judicial estoppel would prevent debtor's prosecution.).
Osterhout v. Wal-Mart Stores E., LP, No. 2:10 CV 363, 2012 WL 1434842 (N.D. Ind. Apr. 25, 2012) (unpublished) (Lee) (Applying Rainey v. United Parcel Service, Inc., No. 11-3106, 2012 WL 753680 (7th Cir. Mar. 9, 2012) (unpublished) (Posner, Wood, Tinder), judicial estoppel not appropriate because schedules had been amended to disclose cause of action.).
Huff v. Macon Behavioral Health Treatment, No. 5:11-CV-455 (MTT), 2012 WL 1344355 (M.D. Ga. Apr. 18, 2012) (unpublished) (Treadwell) (Judicial estoppel bars debtor's monetary recovery on unscheduled EEOC cause of action, but claim for injunctive relief can proceed.).
Parker v. Zale Corp., 864 F. Supp. 2d 670 (E.D. Tenn. Mar. 29, 2012) (Jordan) (Judicial estoppel not appropriate when debtor made good-faith attempts to notify bankruptcy court of action for employment discrimination. Debtor informed Chapter 13 trustee at creditors' meeting, and agreed order reflected that proceeds would be paid into plan.).
Robertson v. Flowers Baking Co. of Lynchburg, LLC, No. 6:11-cv-00013, 2012 WL 830097 (W.D. Va. Mar. 6, 2012) (unpublished) (Moon) (After voluntary conversion to Chapter 7, trustee had exclusive control of employment discrimination action and debtor no longer had standing. If trustee abandoned action, debtor would be judicially estopped, since action was not disclosed in schedules.).
Byrd v. Wyeth, Inc., No. 2:03CV104TSL-MTP, 2012 WL 516077 (S.D. Miss. Feb. 15, 2012) (Lee) (Equities favored permitting former debtor to pursue undisclosed product liability action; debtor's duty to disclose postpetition cause of action was open question in Fifth Circuit at time claim accrued in 2002. Debtor was diagnosed with breast cancer three years after filing Chapter 13. Suit alleged cancer was caused by hormone replacement therapy drugs. Adopting Woodard v. Taco Bueno Restaurants, Inc., No. 4:05-CV-804-Y, 2006 WL 3542693 (N.D. Tex. Dec. 8, 2006) (Means), under § 1306, bankruptcy estate included property acquired after commencement, but it was inequitable to apply judicial estoppel to bar postpetition cause of action.).
Harrah v. DSW Inc., 852 F.Supp.2d 900 (N.D. Ohio Feb. 9, 2012) (Nugent) (Without deciding whether innocent trustee would be barred, debtor was judicially estopped from asserting prepetition employment discrimination action that was not disclosed in original or amended schedules. Debtor's obligation to amend is important in Chapter 13, because § 1306 brings into estate all property acquired after commencement. Plan had been confirmed and failure to schedule was not inadvertent—debtor had motive to conceal assets.).
Assasepa v. JPMorgan Chase Bank, No. 1:11-cv-156, 2012 WL 88162 (S.D. Ohio Jan. 11, 2012) (unpublished) (Litkovitz) (Judicial estoppel precluded pursuit of Truth in Lending Act, RESPA and other state law claims that were omitted from bankruptcy schedules.).
Esparza v. Costco Wholesale Corp., No. 10 CV 5406, 2011 WL 6820022 (N.D. Ill. Dec. 28, 2011) (Aspen) (Judicial estoppel precluded debtor from pursuing EEOC complaint that was not disclosed in schedules. Debtor also lacked standing to pursue claim that was not abandoned and still belonged to Chapter 7 estate after conversion from Chapter 13.).
Kelso v. Pilot Travel Ctrs., No. 10-0814-CV-W-ODS, 2011 WL 6130919, at *2 (W.D. Mo. Dec. 8, 2011) (Smith) (Judicial estoppel not appropriate when debtor amended schedules to disclose postpetition, employment discrimination action—notwithstanding that amendment came after motion to dismiss complaint. Amendment "permits all parties to be put in the same position they would be in if he had made his disclosure at an earlier time. The reorganization plan has been confirmed but has not been completed, so the creditors and the Trustee are free to seek amendments to the Plan if this late-disclosed asset proves to have monetary value. The mere fact that there is a procedure for amending the bankruptcy disclosures in this matter demonstrates the bankruptcy court was not irrevocably misled into believing these assets did not exist. Finally, neither the Defendants in this case [n]or the creditors in the bankruptcy proceeding will be prejudice[d].").
Piper v. Dollar Gen. Corp., No. 3:11-554, 2011 WL 4565432 (M.D. Tenn. Sept. 29, 2011) (Trauger) (Debtor was not real party in interest to sue former employer, but trustee was given opportunity to be substituted as plaintiff.).
Davis v. Mitsubishi Motors of N. Am., Inc., No. 09-1255, 2011 WL 4056072 (C.D. Ill. Sept. 8, 2011) (unpublished) (Shadid) (Debtor was judicially estopped from pursuing employment discrimination claim when cause of action was not scheduled and schedules were never amended.).
DePasquale v. Morgan Stanley Smith Barney LLC, No. 10-6828 (WJM-MF), 2011 WL 3703110 (D.N.J. Aug. 23, 2011) (Martini) (Judicial estoppel barred action for unpaid overtime. Nondisclosure in schedules was inconsistent with pursuing claim in district court. Bad faith inferred from concealment.).
Smith v. Cumulus Broad. LLC, No. 4:09-cv-02885-JMC, 2011 WL 3489820 (D.S.C. Aug. 8, 2011) (Childs) (Adopting Gregory v. Potter, 275 Fed. Appx. 255 (4th Cir. Apr. 29, 2008) (King, Shedd, Wilkins), debtor lacked standing and was judicially estopped to bring prepetition action. Complaint alleging violation of Unfair Trade Practices Act and other causes of action belonged to bankruptcy estate, and debtor had altered position on potential claims.).
Cannata v. Wyndham Worldwide Corp., 798 F. Supp. 2d 1165, 1175 (D. Nev. July 21, 2011) (Pro) (Judicial estoppel not applied to prevent debtor from pursuing Title VII claim, but recovery was limited to amount required to pay creditors; debtor would receive nothing. Failure to disclose cause of action was not unintentional oversight or mistake. Motion filed by trustee to convert Chapter 13 to Chapter 7 "provides sufficient evidence that Davis's failure to disclose her civil claims resulted in a detriment to her creditors and an advantage to Davis.").
Aikens v. Soul Circus, Inc., No. 09 C 6678, 2011 WL 2550828 (N.D. Ill. June 24, 2011) (Gottschall) (Distinguishing Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir. July 31, 2006) (Coffey, Easterbrook, Sykes), former debtor in Chapter 13 case dismissed for plan default was not collaterally estopped to litigate unscheduled personal injury action. Court had no evidence to determine subjective intent of debtor in failing to schedule action that arose 10 days after case filing. Dismissal did not result in abandonment of unscheduled cause of action, but former debtor had Article III standing to pursue claim. Motion for judgment on pleadings, based on lack of standing and judicial estoppel, was denied. Court did not rule on whether debtor was real party in interest).).
Nettles v. State Farm Fire & Cas. Co., No. 4:10-CV-106 (CDL), 2011 WL 2462556 (M.D. Ga. June 17, 2011) (Land) (Judicial estoppel was not applied, with motion to join trustee as plaintiff granted; trustee would be permitted to pursue claim against State Farm on behalf of creditors, even if debtors had been judicially estopped. Debtors had notified trustee of fire loss within three days after postpetition fire, advising trustee that they had insurance coverage with State Farm, and disclosure to trustee rebutted inference of intentional manipulation by debtors.).
Wiregrass Catering Serv., LLC v. Community Bank & Trust of Se. Ala., No. 1:11cv361-WHA-TFM, 2011 WL 2444676 (M.D. Ala. June 16, 2011) (Albritton) (Suit by debtor as sole member and manager of limited liability company for breached promise to obtain SBA loan could directly affect Chapter 13 estate and is properly referred to bankruptcy court.).
Player v. Kansas City S. Ry. Co., No. 06-1980, 2011 WL 1790494 (W.D. La. May 10, 2011) (Stagg) (Former debtors were judicially estopped from pursuing racial discrimination claims that were not scheduled in bankruptcy.).
Myers v. Bimbo Bakeries USA, Inc., No. 08-CV-1179 (CBA), 2011 WL 1240095, at *6 (E.D.N.Y. Feb. 10, 2011) (Gold) (Judicial estoppel barred cause of action that was not disclosed in 2004 bankruptcy notwithstanding that case had been dismissed. "While there is scant case law on the effect of a bankruptcy dismissal, as opposed to a discharge, on a subsequent undisclosed civil claim, the few courts that have considered the issue find the difference to be irrelevant to the application of the judicial estoppel doctrine.").
Halmin v. Baptist Mem'l Hosp., No. 2:09-cv-02615-STA-cgc, 2011 WL 902351 (W.D. Tenn. Jan. 27, 2011) (Claxton) (Applying White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. Aug. 11, 2010) (Clay, McKeague, Polster), judicial estoppel barred Title VII claim against employer when cause of action was not scheduled. Debtor stated "none" in item 4(a) of statement of financial affairs.), report and recommendation adopted by, No. 09-2615-STA, 2011 WL 901028 (W.D. Tenn. Mar. 14, 2011) (Anderson).).
Pace v. Hurst Boiler & Welding Co., No. 7:10-CV-116 (HL), 2011 WL 97244, at *4 (M.D. Ga. Jan. 12, 2011) (Lawson) (Failure to disclose prepetition employment discrimination action barred debtor's monetary claims, but judicial estoppel does not bar injunctive relief. Citing Barger v. Cartersville, 348 F.3d 1289, 1297 (11th Cir. Oct. 28, 2003) (Barkett, Marcus, Mills), injunctive claims have no value to bankruptcy estate, "which means any failure to disclose such claims cannot be viewed as a deliberate attempt to harm the debtor's creditors.").
Silva v. Public Storage, No. 08cv1726 BEN (POR), 2010 WL 5114746 (S.D. Cal. Dec. 9, 2010) (Benitez) (Failure to schedule debt to Public Storage or to list items in storage unit judicially estops debtor in action for stay violation when storage company sells stored property for nonpayment of lease after petition.).
Baker v. Rent-A-Center, Inc., No. 3:09-CV-156, 2010 WL 3896153 (E.D. Tenn. Sept. 30, 2010) (Phillips) (Complaint by former debtor against employer was barred by judicial estoppel when cause of action was not disclosed in two separate bankruptcy petitions and debtor failed to amend schedules before filing of motion to dismiss.).
Yerk v. People for the Ethical Treatment of Animals, No. 2:09-cv-537-FtM-29SPC, 2010 WL 3746815 (M.D. Fla. Sept. 21, 2010) (Steele) (Judicial estoppel was not appropriate when failure to schedule lawsuit did not prejudice the defendant and bankruptcy court sanctioned the failure to schedule by ordering dismissal or conversion of the Chapter 13 case; after conversion, lawsuit belonged to the estate and could be pursued by substitution of Chapter 7 trustee.).
Henry v. Kansas City S. Ry. Co., No. 10-0469, 2010 WL 3613795 (W.D. La. Sept. 8, 2010) (James) (Judicial estoppel barred action under Federal Employers' Liability Act when debtor did not schedule action and only attempted to amend schedules after defendant's motion for summary judgment was granted.).
Riddle v. Chase Home Fin., No. 09-11182, 2010 WL 3504020, at *3 (E.D. Mich. Sept. 2, 2010) (Lawson) (When debtor did not include action against Chase in original or amended schedules, action was barred by judicial estoppel. Citing White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. Aug. 11, 2010) (Clay, McKeague, Polster): "Leniency has not been the watchword that characterizes the Sixth Circuit's treatment of judicial estoppel claims in the bankruptcy context.").
Turner v. Young Touchstone Co., No. 1:09-cv-01024-JDB-egb, 2010 WL 6512344 (W.D. Tenn. Aug. 31, 2010) (Bryant) (Debtor should have included pending lawsuit in bankruptcy filing, but, without applying judicial estoppel, debtor established prima facie evidence of promotion denial sufficient to prevent award of defendant's attorney fees based on frivolous claim.).
Dorbeck v. Sykora, No. 09-cv-14646, 2010 WL 3245327 (E.D. Mich. Aug. 16, 2010) (Zatkoff) (Judicial estoppel bars suit when bankruptcy schedules did not disclose ownership interest in corporation or cause of action related to debtor's interest.).
Thompson v. Davidson Transit Org., 725 F. Supp.2d 701, 710 (M.D. Tenn. July 20, 2010) (Trauger) (Judicial estoppel bars former debtor from pursuing claim for First Amendment violations against Metropolitan Transit Authority when plaintiff failed to include action in bankruptcy schedules. Chapter 13 plan paid substantial portion of claims but not 100%, giving debtor "a continuing motive to conceal and minimize his assets to reduce the potential pool for creditors." Dismissal of Chapter 13 case for plan default did not change application of judicial estoppel.).
Swanigan v. Northwest Airlines, Inc., 718 F. Supp.2d 917, 926 (W.D. Tenn. June 9, 2010) (Donald) (Judicial estoppel barred former Chapter 13 debtor's unscheduled Title VII action when debtor failed to demonstrate that nondisclosure was inadvertent. Allowing debtor to reopen bankruptcy case to amend schedules after defendant had challenged nondisclosure would "suggest[ ] that a debtor should consider disclosing potential assets only if he is caught concealing them. This so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtors' assets.").
Odem v. Centex Homes, No. 3:08-CV-01196-L ECF, 2010 WL 2402975 (N.D. Tex. May 28, 2010) (Stickney) (Magistrate recommended applying judicial estoppel to bar former Chapter 13 debtor's undisclosed Fair Labor Standards Act action. Debtor filed cause of action in district court on same day that Chapter 13 trustee filed motion to dismiss bankruptcy. Schedules were never amended. Defendant's request for attorney fees for preparing and filing motion to dismiss was denied.).
Yates v. Cash Am., Inc., No. 08-2742, 2010 WL 1009960 (W.D. Tenn. Mar. 15, 2010) (unpublished) (Mays)
(Applying Browning v. Levy, 283 F.3d 761 (6th Cir. Mar. 12, 2002) (Martin, Gilman, Edmunds), judicial estoppel required dismissal of civil rights complaint when debtor did not disclose cause of action until forced to amend bankruptcy schedules after defendant filed dismissal motion., denying motion to amend No. 08-2742, 2009 WL 10699443 (W.D. Tenn. Nov. 23, 2009) (Mays) Failure to reveal discrimination action through three failed Chapter 13 cases
Dickerson v. Federal Express Corp., No. 2:08-cv-02868-JPM-cgc, 2010 WL 8747316 (W.D. Tenn. Mar. 10, 2010) (McCalla) (Judicial estoppel barred employment action. Omission from schedules was not inadvertent.).
Hall v. ASPN Ins. Agency, LLC, No. 09 cv 00256, 2010 WL 11606763 (N.D. Ill. Feb. 26, 2010) (Darrah) (Judicial estoppel does not bar Chapter 13 debtor’s discrimination action because bankruptcy court allowed amendment of schedules to reveal the action and allowed amendment of plan to pay any recovery to creditors.).
Clay v. University Cancer Specialist, No. 2:09-CV-50, 2010 WL 11520007, at *4
Clarke v. United Parcel Serv., Inc., 421 B.R. 436 (W.D. Tenn. Jan. 15, 2010) (Anderson) (Judicial estoppel bars Equal Employment Opportunity Commission claim when failure to schedule cause of action and failure to amend schedules were not inadvertent.).
Wilkins v. Sam’s E., Inc., No. 08-2507, 2010 WL 11598162 (W.D. Tenn. Jan. 14, 2010) (Mays) (Judicial estoppel bars unscheduled discrimination action against Sam’s Club when plan was confirmed without consideration of action, notwithstanding dismissal of Chapter 13 case a few months after confirmation.).
Reynolds v. Alabama Dep't of Transp., No. 2:85cv665-MHT, 2009 WL 4456339 (M.D. Ala. Nov. 24, 2009) (Thompson) (Former Chapter 13 debtor's failure to disclose pending causes of action and deception in schedules concerning prior bankruptcy filings justified application of judicial estoppel.).
Chung-Chan v. Bankowski (In re Chung-Chan), No. 09-CV-10926-PBS, 2009 WL 3837846 (D. Mass. Nov. 17, 2009) (Saris) (Applying Barbosa v. Soloman, 235 F.3d 31 (1st Cir. Dec. 21, 2000) (Torruella, Selya, Casellas), postpetition settlement of debtor's adversary proceeding, alleging mortgagee increased monthly payments in violation of automatic stay, was property of Chapter 13 estate; bankruptcy estate does not cease to exist at confirmation but continues to be funded by postpetition regular income and assets under § 1306(a).).
Williams v. Hainje, No. 4:06-CV-121-TS, 2009 WL 2923148 (N.D. Ind. Sept. 10, 2009) (Springmann) (Judicial estoppel bars debtor from pursuing undisclosed personal injury action but does not bar estate from pursuing same claim; real party in interest is trustee for benefit of unsecured creditors.).
In re Family Dollar FLSA Litig., No. 3:08 MD 1932, 2009 WL 1750908 (W.D.N.C. June 19, 2009) (unpublished) (Mullen) (When debtor filed Chapter 13 before opting into class action, failure to schedule cause of action either originally or by amendment requires application of judicial estoppel.).
Cargo v. Kansas City S. Ry. Co., 408 B.R. 631 (W.D. La. June 18, 2009) (Hicks) (Judicial estoppel precludes pursuit of prepetition causes of action that Chapter 13 debtors failed to disclose in schedules or by amendment. In Chapter 13 cases with confirmed plans, bankruptcy court had accepted debtors' inconsistent position of nondisclosure of causes of action by confirmation of plans.).
Bates v. Dura Automotive Sys., Inc. (In re Bates), 650 F. Supp. 2d 754 (M.D. Tenn. Apr. 23, 2009) (Trauger) (Judicial estoppel was not applicable to undisclosed ADA action when one debtor's Chapter 13 case had been dismissed prior to confirmation and the other debtor amended petition and notified trustee of cause of action.).
Stewart v. American Ordnance, LLC, No. 07-1150 B, 2009 WL 10698757 (W.D. Tenn. Apr. 6, 2009) (Breen) (Not appropriate to bar unscheduled discrimination action based on judicial estoppel when Chapter 13 plan was confirmed but then dismissed in a matter of days, before any creditor could claim adverse consequences of the nondisclosure.).
Tokheim v. Georgia-Pacific Gypsum, L.L.C., 606 F. Supp. 2d 988 (N.D. Iowa Mar. 31, 2009) (Bennett) (When debtor did not schedule or amend to disclose allegation that former employer engaged in sexual harassment and discrimination, judicial estoppel prevented pursuit of cause of action.).
Allers-Petrus v. Columbia Recovery Group, LLC, No. CO8-5533 FDB, 2009 WL 799676 (W.D. Wash. Mar. 24, 2009) (unpublished) (Burgess) (When debtor did not amend schedules to show pending cause of action until after defendant's motion for summary judgment, judicial estoppel required dismissal. Not necessary for bankruptcy court to enter discharge before judicial estoppel elements are satisfied. Debtor took inconsistent positions by claiming no cause of action in bankruptcy schedules and bringing suit in district court.).
Melton v. National Dairy Holdings, LP, 1:08cv174-TFM, 2009 WL 653024 (M.D. Ala. Mar. 10, 2009) (Moorer) (Judicial estoppel was not applied when record supported reasonable inference that debtor's failure to amend Chapter 13 schedules to disclose employment discrimination action was simple error.).
Evans v. Potter, No. 1:08-CV-1687-TWT, 2009 WL 529599 (N.D. Ga. Feb. 27, 2009) (Thrash) (Application of judicial estoppel would be unduly harsh and inequitable when debtor did not schedule or amend schedules to disclose employment discrimination action but debtor gained no advantage because bankruptcy case was dismissed without discharge.).
Jackson v. Communicare Health Servs., No. 1:06 CV 1948, 2009 WL 455410, at *4 (N.D. Ohio Feb. 23, 2009) (Nugent) (Citing Browning v. Levy, 283 F.3d 761, 776 (6th Cir. 2002), judicial estoppel applied when debtor took inconsistent position in bankruptcy case by not disclosing cause of action. "[T]he only basis for finding judicial estoppel to be inappropriate in such a context would be where (1) the debtor lacks knowledge of the factual basis of the undisclosed claim or (2) the debtor has no motive for concealment.").
Coppedge v. Suntrust Banks, Inc., No. 3:08-CV-23(HL), 2009 WL 111639 (M.D. Ga. Jan. 14, 2009) (unpublished) (Lawson) (Judicial estoppel bars employment discrimination action that debtor intentionally did not disclose in bankruptcy filing; debtor cannot blame nondisclosure on bankruptcy counsel and district court rejects argument that creditors would be prejudiced by application of doctrine.).
Leichliter v. Des Moines Register, No. 4:08CV00065-JAJ, 2008 WL 4911845 (S.D. Iowa Nov. 14, 2008) (unpublished) (Jarvey) (Judicial estoppel does not apply where debtor failed to disclose employment discrimination action in Chapter 13 petition; there was no evidence that nondisclosure was part of scheme to mislead bankruptcy court.).
Galloway v. Bond, Botes & Stover, P.C., 597 F.Supp.2d 676 (S.D. Miss. Oct. 27, 2008) (Lee) (Legal malpractice action against former bankruptcy counsel relating to alleged negligence in filing bankruptcy was property of estate, is core proceeding and is properly removed from state court; however, judicial estoppel bars debtor from pursuing legal malpractice action that was not disclosed in bankruptcy schedules.).
Kirkes v. Lake Country Chevrolet Cadillac, L.L.C., No. CIV-07-408-KEW, 2008 WL 4534213 (E.D. Okla. Oct. 3, 2008) (unpublished) (West) (Trustee has standing to intervene in debtors' age discrimination action that was not disclosed in schedules. Trustee filed motion to modify confirmed plan to require payment to trustee of any proceeds.).
Bonney v. Parish, No. CIV-07-422-KEW, 2008 WL 4490011 (E.D. Okla. Sept. 30, 2008) (unpublished) (West) (Statute of limitations bars debtor's action against attorney for legal malpractice.).
Prudencio v. Chenega Integrated Sys., Inc., No. CIV-07-0716-HE, 2008 WL 4225035 (W.D. Okla. Sept. 10, 2008) (unpublished) (Heaton) (Judicial estoppel not appropriate when FLSA cause of action arose postconfirmation and there is no allegation that creditors have been harmed by omission from schedules.).
Thompson v. Quarles, 392 B.R. 517, 529 (S.D. Ga. July 16, 2008) (Alaimo) (Although debtors did not schedule postpetition cause of action, judicial estoppel not appropriate when debtors are current in plan payments and could modify plan to increase distribution to unsecured creditors if successful in action. "[I]t is appropriate for the Thompsons to amend their schedules to apprise the bankruptcy court of their tort claims so it can determine whether modification of the plan is appropriate.").
Jackson v. Advanced Disposal Servs., Inc., No. 307-CV-773-J-33TEM, 2008 WL 958110, at *4 (M.D. Fla. Apr. 8, 2008) (unpublished) (Covington) (Choosing between "competing, reasonable inferences," judicial estoppel not imposed on summary judgment when debtor failed to schedule cause of action but questions of fact remain whether debtor intended to omit cause of action and whether debtor was aware of cause of action at filing of bankruptcy.).
Jackson v. Novastar Mortgage, Inc., 645 F. Supp.2d 636 (W.D. Tenn. Dec. 20, 2007) (Donald) (Complaint alleging race discrimination by mortgage lender is not barred by res judicata or judicial estoppel because debtor had no knowledge of claim against Novastar until after bankruptcy filing; failure to disclose action is not fatal—plaintiff with less than high school education is not expected to understand that potential cause of action was asset of estate.).
Crosby v. Mobile County, No. 04-0144-CG-M, 2007 WL 4125895, at *4 (S.D. Ala. Nov. 14, 2007) (unpublished) (Granade) (Judicial estoppel not applicable when cause of action arose after confirmation and recovery is not necessary to meet terms of confirmed plan. Citing Muse v. Accord Human Resources, Inc., 129 Fed. Appx. 487 (11th Cir. 2005), and In re Baxter, 374 B.R. 292 (Bankr. M.D. Ala. 2007), "at least where additional assets are not needed for [debtor] to meet the terms of his confirmed plan, any right of action that arose after confirmation is not part of the bankruptcy estate.").
Arnold v. ADT Sec. Servs., Inc., No. 05-0607-CV-W-HFS, 2007 WL 2885148 (W.D. Mo. Sept. 27, 2007) (unpublished) (Sachs) (Applying New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001), judicial estoppel does not preclude debtor's discrimination suit against employer when plan called for repayment of 100% of debt and inadvertent failure to disclose did not result in any unfair advantage to debtor over creditors.).
Reyes v. Texas Ezpawn, L.P., No. V-03-128, 2007 WL 2818053 (S.D. Tex. Sept. 26, 2007) (unpublished) (Rainey) (Declining to apply judicial estoppel to FLSA action against employer, debtor scheduled possible lawsuit but did not accurately disclose amount of claim. Action was not capped at $10,000, as disclosed in Schedule B. Debtor would be entitled to prove damages as allowable under FLSA.).
Moody v. Honda of Am. Mfg., Inc., No. C-2-05-0880, 2007 WL 2756948 (S.D. Ohio Sept. 20, 2007) (unpublished) (Smith) (Complaint for wrongful discharge in violation of Family and Medical Leave Act is dismissed based on judicial estoppel when debtor failed to schedule prepetition cause of action and responded to Chapter 13 trustee's inquiry that she had no causes of action. That debtor did not understand necessity to disclose and did disclose cause of action to her attorney was no excuse. Omission was not inadvertent, debtor understood she had cause of action. Debtor had motive to conceal claim in bankruptcy case. Disclosure after motion to dismiss did not cure original nondisclosure.).
Webb v. Brady, No. C 06-00188 MHP, 2007 WL 2670003 (N.D. Cal. Sept. 7, 2007) (unpublished) (Patel) (Chapter 7 debtor who converted to Chapter 13 while concealing pending litigation had no basis to object to Chapter 7 trustee's settlement of litigation after reconversion of case.).
Gandy v. Shelby Cty., Tenn., No. 04-2919 Ma/V, 2007 WL 9710092 (W.D. Tenn. Aug. 24, 2007) (Mays) (Costs totaling $3,745.91 are assessed against Chapter 13 debtor and (apparently) the Chapter 13 trustee in a civil rights action against Shelby County that was dismissed based on judicial estoppel.).
Brown v. Brock, No. 5:04-cv-339 (CAR), 2007 WL 2128191, at *3 (M.D. Ga. July 25, 2007) (unpublished) (Royal) (Judicial estoppel precludes unscheduled Title VII complaint filed one month before Chapter 13 case. Court refuses to excuse disclosure failure merely because debtor is pro se litigant. "The rule requiring courts to liberally construe pro se pleadings does not excuse pro se litigants from complying with substantive or procedural legal requirements.").
Maxwell v. MGM Grand Detroit, LLC, No. 03-73134, 2007 WL 2050795, at *9 (E.D. Mich. July 16, 2007) (unpublished) (Cohn) (Unscheduled causes of action for employment discrimination are dismissed upon application of judicial estoppel. Failure to disclose was contrary position that bankruptcy court adopted by either granting discharge or confirming plan. Court rejects arguments that debtors omitted disclosure by mistake or upon attorney's advice. With respect to reopening closed bankruptcy cases to amend schedules: "regardless of what the bankruptcy court decides to do with regards to the plaintiffs' petitions to reopen their bankruptcy cases and amend their schedules and financial statements, this Court is the proper authority to determine whether judicial estoppel should be applied to dismiss their claims in the case here.").
Francis v. Arkansas Blue Cross & Blue Shield, No. 4:06-CV-01627 GTE, 2007 WL 1965393 (E.D. Ark. July 2, 2007) (unpublished) (Eisele) (Although debtor failed to schedule cause of action for employment discrimination in Chapter 13 schedules and after conversion to Chapter 7, judicial estoppel not applied when debtor would not receive an unfair advantage over Blue Cross in pending litigation. Applying factors in Stallings v. Hussmann Corp., 447 F.3d 1041 (8th Cir. 2006), motion to reopen closed Chapter 7 case would permit creditors to file claims that might be paid from any recovery from employment discrimination lawsuit.).
Bosco v. C.F.G. Health Sys., LLC, No. 04-CV-3517 (JEI), 2007 WL 1791254, at *4 (D.N.J. June 19, 2007) (unpublished) (Irenas) (Although debtor did not disclose cause of action for medical malpractice in original schedules, judicial estoppel is not applied because cause of action accrued postpetition; debtors are obligated to amend schedules to disclose postpetition property, but there was no indication of bad faith in nondisclosure. "Plaintiff filed for bankruptcy over three years before he brought the instant action. He paid the majority, if not all of his debts owed in bankruptcy before this cause of action accrued. When he filed this action, he was pro se. He was also incarcerated, and presumably did not have regular access to his bankruptcy attorney. Additionally, this cause of action is not related to Plaintiff's bankruptcy, and there is no reason to suspect that his filing for bankruptcy and subsequent failure to disclose this action was an attempt to manipulate the judicial system.").
Gandy v. Shelby Cty., Tenn., No. 04-2919-Ma/V, 2007 WL 9710156 (W.D. Tenn. May 30, 2007) (Mays) (Chapter 13 debtor and Chapter 13 trustee are judicially estopped to maintain unscheduled civil rights action against Shelby County.).
Ratliff v. Bay Inc. of Tex., No. 05-1194, 2007 WL 1455969, at *2 (W.D. La. May 15, 2007) (unpublished) (Doherty) (Reserving judicial estoppel question, when debtor failed to disclose EEOC cause of action in schedules, district court gives Chapter 13 trustee opportunity to intervene. "If plaintiff's allegations are true, and defendant did indeed subject plaintiff to unlawful discrimination in violation of Title VII, the Court does not find dismissal to be the proper remedy without input from the Trustee as to whether or not he wishes to pursue this matter on behalf of the estate. . . . Therefore, the Court hereby ORDERS both parties to issue written correspondence to the Trustee assigned to plaintiff's bankruptcy suit granting notice of this suit." If trustee does not intervene within 30 days, "the Court will dismiss this matter with prejudice on the basis of judicial estoppel.").
Tedford v. United States, No. 8:05-cv-1017-T-30TGW, 2007 WL 1098506 (M.D. Fla. Apr. 12, 2007) (unpublished) (Moody) (Judicial estoppel not appropriate when debtor did not schedule cause of action related to ankle surgery in schedules but there was no evidence that debtor knew of medical malpractice claim when Chapter 13 was filed.).
Fee v. Inland Lakes Mgmt., Inc., No. 05-10188, 2007 WL 9698049 (E.D. Mich. Mar. 28, 2007) (Binder) (Failure to schedule Jones Act action pending at the Chapter 13 petition results in recommendation that judicial estoppel bars the action notwithstanding that debtor scheduled an exemption in the action and informed his bankruptcy counsel of the lawsuit.).
Estate of Carr v. United States, 482 F. Supp.2d 842 (W.D. Tex. Mar. 2, 2007) (Cardone) (Statute of limitations expired on Federal Tort Claims Act complaint alleging wrongful death of debtor's husband; statute was not extended by § 108(a) in absence of proof that complaint was filed on behalf of Chapter 13 estate.).
Guerra v. Lehman Commercial Paper, Inc., No. H-06-1444, 2007 WL 419517 (S.D. Tex. Feb. 5, 2007) (unpublished) (Rosenthal) (Judicial estoppel properly applied when debtors failed to schedule HOEPA and TILA causes of action after being advised that if creditor filed proof of claim causes of action could be raised in bankruptcy.).
HomeQ Servicing Corp. v. Hauf, No. 4:06-CV-83 (CDL), 2007 WL 196857 (M.D. Ga. Jan. 23, 2007) (unpublished) (Land) (Judicial estoppel defense not resolved when prior Chapter 13 case was reopened to vest in Chapter 13 trustee a cause of action that debtors failed to schedule against HomeQ for wrongful foreclosure or breach of contract.).
Johnson v. Matrixx Initiatives, Inc., No. 06-12908-BC, 2007 WL 128929 (E.D. Mich. Jan. 12, 2007) (unpublished) (Ludington) (Applying Browning v. Levy, 283 F.2d 761, 776 (6th Cir. 2002), confirmation was bankruptcy court's acceptance of debtor's prior position that she had no cause of action; judicial estoppel required dismissal of debtor's complaint against manufacturer of Zicam cold remedy.).
Woodard v. Taco Bueno Rests., Inc., No. 4:05-CV-804-Y, 2006 WL 3542693, at *2 (N.D. Tex. Dec. 8, 2006) (unpublished) (Means) (Employment discrimination action that accrued after Chapter 13 petition and two years after confirmation was property of bankruptcy estate, but court declined to apply judicial estoppel due to "law's uncertainty in this [Fifth] circuit as to the status of assets acquired by a debtor after the confirmation of his chapter 13 bankruptcy plan and as to the duty of the debtor to disclose those belatedly acquired assets." Three requirements for judicial estoppel under Superior Crewboats, Inc. v. Primary P & I Underwriters (In re Superior Crewboats, Inc.), 374 F.3d 330, 335 (5th Cir. 2004): debtor-plaintiff's position is clearly inconsistent with previous one; court accepted previous position; and debtor-plaintiff's nondisclosure of cause of action to bankruptcy court was not inadvertent.).
Salyer v. Honda of Am. Mfg., Inc., No. 2:04-CV-988, 2006 WL 3230807 (S.D. Ohio Nov. 6, 2006) (unpublished) (Holschuh) (Applying Browning v. Levy, 283 F.3d 761, 775 (6th Cir. 2002), judicial estoppel bars debtor from pursuing suit under Family and Medical Leave Act and state law due to failure to schedule cause of action in two bankruptcy cases. In first case, cause of action was not scheduled because case was being dismissed. In second case, debtor claimed to be confused by attorney's advice.).
Copeland v. Hussmann Corp., 462 F. Supp.2d 1012, 1020 (E.D. Mo. Oct. 26, 2006) (Hamilton) (Applying Stallings v. Hussmann Corp., 447 F.3d 1041, 1047 (8th Cir. 2006), "extraordinary remedy" of judicial estoppel not applied when debtor's failure to schedule civil rights cause of action "do[es] not indicate an intentional manipulation designed to flaunt the judicial process." Debtor had reopened Chapter 13 and amended schedules, and trustee elected not to pursue lawsuit.).
Swearingen-El v. Cook County Sheriff's Dep't, 456 F. Supp.2d 986, 991 (N.D. Ill. Oct. 16, 2006) (Bucklo) (Judicial estoppel does not bar discrimination lawsuit when debtor converted Chapter 7 case to Chapter 13 after consulting bankruptcy counsel and is pursuing discrimination lawsuit on behalf of creditors. "Defendants cannot show plaintiff intended to deceive the bankruptcy court. . . . Swearingen-El properly reopened his bankruptcy case and is presently pursuing this suit for the benefit of his creditors.").
Young v. Time Warner Cable Capital, L.P., No. 04-0651-CV-W-HFS, 2006 WL 2927569 (W.D. Mo. Oct. 12, 2006) (unpublished) (Sachs) (Failure to schedule discrimination lawsuit in Chapter 13 case does not judicially estop debtor because confirmation of 100% plan was not inconsistent with nondisclosure and debtor did not realize any unfair advantage.).
Jones v. Cmty. Newspapers, Inc., No. 3:05-cv-240-J-16MMH, 2006 WL 2507610, at *3 (M.D. Fla. Aug. 29, 2006) (unpublished) (Moore) (Chapter 13 debtor's failure to schedule defamation action against newspaper would have supported judicial estoppel but for dismissal of bankruptcy case before confirmation or discharge. "Had the bankruptcy progressed to the confirmation and discharge stage without Plaintiff correcting her Statement of Financial Affairs, it would be a different story. . . . [W]hile Plaintiff deliberately misled the Court in her bankruptcy petition . . . judicial estoppel does not apply absent a successful discharge of Plaintiff's debts and/or an unfair advantage on the opposing party.").
Laisure-Radke v. Barr Labs., Inc., No. C03-3654RSM, 2006 WL 1727978, at *3 (W.D. Wash. June 22, 2006) (unpublished) (Martinez) (Wrongful death action that debtor failed to schedule in Chapter 7 case is barred by judicial estoppel notwithstanding that debtor reopened the Chapter 7 case, after discharge, and converted to Chapter 13 with the intent to pay creditors from any recovery. "In [Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778 (9th Cir. 2001)], the Ninth Circuit expressly rejected a similar argument, holding that a plaintiff 'is precluded from pursuing claims about which he had knowledge, but did not disclose, during his bankruptcy proceedings, and that a discharge of debt by a bankruptcy court, under these circumstances, is sufficient acceptance to provide a basis for judicial estoppel, even if the discharge is later vacated.'").
Harvey v. Lowe's Home Ctrs., Inc., No. 05-1178-T-AN, 2006 WL 1129381, at *2-*3 (W.D. Tenn. Apr. 25, 2006) (unpublished) (Todd) (Failure to schedule discrimination claim against employer precluded Chapter 13 debtor from pursuing action. "Federal law dictates that the bankruptcy trustee is the only party with standing to bring a claim on behalf of a bankruptcy estate and is therefore the real party in interest. . . . [B]ecause the bankruptcy trustee is the only representative with the capacity to sue or be sued concerning claims arising from the bankruptcy estate, plaintiffs are not the real party in interest with respect to the claims contained in their complaint. . . . Alternatively, the action must be dismissed on the grounds of judicial estoppel. . . . Plaintiff's bankruptcy proceedings bar this action under the doctrine of judicial estoppel because he did not disclose the existence of his discrimination claims in his schedule of assets. . . . [A]n order confirming a Chapter 13 plan adopts the debtor's statement that he has no potential causes of action and supports a finding that the second factor has been met.").
Johnson v. PS Ill. Trust, No. 03 C 6517, 2006 WL 1030192 (N.D. Ill. Apr. 19, 2006) (unpublished) (Kendall) (Judicial estoppel does not apply to Chapter 13 debtor's action under consumer protection statutes and for fraud because lawsuit was disclosed in statement of financial affairs and schedule of personal property and confirmed plan provides that any recovery will be paid to Chapter 13 trustee; debtor has not convinced court to adopt inconsistent position.).
Dial v. Advance Auto Stores Co., No. 7:05-cv-1025-TMP, 2006 WL 8436759 (N.D. Ala. Apr. 13, 2006) (Putnam) (Judicial estoppel does not bar unscheduled employment discrimination action when debtor did not fully appreciate he had an action until he was approached by an attorney during the Chapter 13 case.).
Pavlov v. Inglese Mkts., Inc., No. Civ.A. 1:03-CV-1647JOF, 2006 WL 949934 (N.D. Ga. Apr. 11, 2006) (unpublished) (Forrester) (Citing Billups v. Pemco Aeroplex, Inc. (In re Burnes), 291 F.3d 1282 (11th Cir. 2002), De Leon v. Comcar Industries, Inc., 321 F.3d 1289 (11th Cir. 2003), and Parker v. Wendy's International, Inc., 365 F.3d 1268 (11th Cir. 2004), Chapter 13 debtor is judicially estopped to maintain damages action against Inglese Markets, Inc., because lawsuit was ambiguously scheduled first as a "suits and administrative proceedings" and then as a debt; that debtor revealed lawsuit at meeting of creditors does not change outcome because debtor did not fully disclose nature of litigation.).
Stallings v. Babin, No. 4:04CV00645 SWW, 2006 WL 665772 (E.D. Ark. Mar. 15, 2006) (unpublished) (Wright) (Debtor's employment discrimination suit against Chapter 13 trustee is dismissed when debtor failed to allege single incident of gender-based harassment or other evidence that Babin acted against her motivated by hostility against women.).
Snowden v. Fred's Stores of Tenn., Inc., 419 F. Supp.2d 1367, 1372 (M.D. Ala. Mar. 10, 2006) (Thompson) (Four-month delay in amending schedules to reveal postpetition cause of action under Fair Labor Standards Act did not trigger judicial estoppel. "Although the court is holding that mere failure to amend a bankruptcy schedule is not the same as taking inconsistent positions under oath, this result will not prevent courts from applying judicial estoppel based on a lengthy delay on amending the bankruptcy filings.").
Best v. Kroger Co., 339 B.R. 180 (W.D. Tenn. Mar. 9, 2006) (Mays) (Judicial estoppel not applied to debtor's sexual harassment action, even though alleged harassment began before Chapter 13 filing; claims included ongoing harassment after filing, debtor did not know full extent of action when petition was filed and omission was inadvertent.).
Poole v. American Int'l Group, Inc., 414 F. Supp.2d 1111 (M.D. Ala. Feb. 14, 2006) (Thompson) (After dismissal of Chapter 13 case, district court had no "arising under" or "related to" jurisdiction over state law cause of action brought by former debtor against lenders; without specific mention of judicial estoppel, dismissal of Chapter 13 case defeated any argument that state law claims were barred because claims should have been brought during bankruptcy case.).
Karraker v. Renta-A-Center, Inc., No. 02-2026, 2005 WL 2979652 (C.D. Ill. Nov. 7, 2005) (unpublished) (McCuskey) (Citing In re Cassidy, 892 F.2d 637 (7th Cir. 1990), judicial estoppel bars employment termination claim that was not disclosed in schedules notwithstanding that bankruptcy case was dismissed for failure to complete plan. "[I]t is not necessary that Karraker prevail in the prior litigation in order for judicial estoppel to apply.").
Spann v. Dyncorp Tech. Servs. LLC, 403 F. Supp.2d 1082, 1087 (M.D. Ala. Nov. 2, 2005) (Thompson) (Judicial estoppel does not apply: omission of Title VII claim in schedules was not intentional, and no benefit was received from nondisclosure when bankruptcy case was dismissed without discharge. "Without a benefit to be gained, Spann had no motive to conceal her federal and state claims.").
Tyler v. Federal Express Corp., 420 F. Supp.2d 849, 859 (W.D. Tenn. Nov. 2, 2005) (Breen) (Chapter 13 debtor is judicially estopped to maintain discrimination action after failing to list or to amend schedules once issue was raised.), aff'd, No. 05-6826, 2006 WL 3334953 (6th Cir. Nov. 16, 2006) (unpublished).).
Carr v. Home Tech Servs. Co., No. 03-2569, 2005 WL 2600209 (W.D. Tenn. Oct. 12, 2005) (unpublished) (Donald) (Although debtor did not schedule prebankruptcy predatory lending cause of action, omission was inadvertent and judicial estoppel is not applied. Defendant moving for dismissal is not party in bankruptcy case and cannot rely on res judicata effect of confirmation.).
Suber v. Purdue Pharma, L.P. (In re Suber), No. 403CV97PB, 2005 WL 2250833 (N.D. Miss. Sept. 15, 2005) (unpublished) (Pepper) (Judicial estoppel applies to bar debtor's cause of action when it was not revealed in bankruptcy case in which debtor obtained discharge.).
Autos, Inc. v. Gowin, 330 B.R. 788, 796 (D. Kan. Sept. 8, 2005) (Crow) (Failure to disclose postpetition cause of action arising from purchase and repossession of automobile justifies application of judicial estoppel under Johnson v. Lindon City Corp., 405 F.3d 1065, 1068-69 (10th Cir. 2005); however, appropriate remedy is to prevent debtor from personally benefiting, with any recovery to be distributed among creditors. "This will preclude Autos from reaping a windfall and will keep Gowin from profiting from her failure to disclose her claims to creditors, while permitting creditors to receive assets which application of judicial estoppel would deprive them of.").
Maxim Healthcare Servs., Inc. v. Miles (In re Miles), Nos. 03-35637-HDH-13, 3:05-CV-0828-P, 2005 WL 1981040 (N.D. Tex. Aug. 17, 2005) (unpublished) (Solis) (Judicial estoppel not applied after bankruptcy court approved settlement of cause of action involving debtor's minor son. Appellant failed to appeal bankruptcy court's refusal to consider judicial estoppel argument, mooting appeal.).
Banks v. Corrections Corp. of Am. (In re Banks), Civ.A. 4:03-CV401-P-B, 2005 WL 1876371 (N.D. Miss. Aug. 8, 2005) (unpublished) (Pepper) (Judicial estoppel not applied to cause of action under Title VII when debtor gained nothing by omission from schedules; case was dismissed without discharge, and there is no indication that debtor was attempting to eliminate creditor claims or reap windfall.).
Thomas v. Guardsmark, Inc., No. 02 C 8848, 2005 WL 1629770 (N.D. Ill. July 7, 2005) (unpublished) (Conlon) (Judicial estoppel not applied when debtor scheduled prepetition action against employer; listing unknown value did not misrepresent action as having no value. Debtor has standing since trustee effectively abandoned pursuit of litigation.).
Brown v. Brock, No. 5:04CV339DF, 2005 WL 1429756 (M.D. Ga. June 13, 2005) (unpublished) (Fitzpatrick) (Complaint alleging race discrimination is dismissed upon application of judicial estoppel; failure to disclose cause of action in schedules was not inadvertent and creditors were prejudiced by nondisclosure.).
Laudani v. Manhattan Fin. Servs., Inc. (In re Laudani), No. 16-1148, 2019 WL 1750973 (Bankr. D. Mass. Apr. 16, 2019) (Feeney) (Chapter 13 debtor’s complaint to collect judgment against corporation from its principals fails under state law test for veil-piercing.).
In re Mitchell, No. 15-00852-NPO, 2018 WL 6978623 (Bankr. S.D. Miss. Dec. 21, 2018) (Olack) (Bankruptcy court declines to decide whether Chapter 13 debtor’s cause of action for fraud and contract violations is property of current case or of prior Chapter 13 case when action arose during prior dismissed case and was found to be property of prior closed case by district court in pending litigation. Cause of action may have revested in debtor at dismissal of prior case but bankruptcy court (judiciously) declines to say that district court is wrong in its assessment that action remains property of dismissed Chapter 13 estate.).
In re Williams, No. 12-82275, 2018 WL 6287968 (Bankr. C.D. Ill. Nov. 30, 2018) (Altenberger) (After completion of payments and discharge in a Chapter 13 case that paid 100% to unsecured creditors, debtors moved to reopen to schedule employment action that arose during the Chapter 13 case. Finding no motive for the debtors to have concealed the cause of action or to have gamed the judicial system, bankruptcy court allows the reopening and amendment of schedules, leaving to district court to determine whether debtors are judicially estopped to maintain the employment action.).
Blanchette v. Blanchette (In re Blanchette), 582 B.R. 819, 827 (Bankr. D. Mass. Jan. 2, 2018) (Bailey) (In litigation between mother and son, both Chapter 13 debtors, mother’s failure to list life estate in son’s real property judicially estops mother to claim that interest in son’s Chapter 13 case. Mother filed and completed a Chapter 13 case in which she did not list any interest in real property. Mother filed a complaint in state court seeking recognition of a life estate in real property owned by her son. Son filed Chapter 13 petition and mother claimed an interest in son’s property. Mother’s confirmed plan paid creditors in full. “Janis indeed fully paid her creditors, but there was surely no guarantee that she would when she filled out her schedules. . . . Janis has failed to adduce evidence on which a reasonable finder of fact could find that she had established lack of motive to deceive.”).
McAllister v. Younes (In re McAllister), No. 16-57053-PJS, 2017 WL 9963364 (Bankr. E.D. Mich. Mar. 20, 2017) (Shefferly) (Bankruptcy court permissibly abstained from removed state court action in which debtor obtained a large default judgment that is final and only matter remaining is collection of that judgment.).
Henley v. Malouf (In re Roberts), 556 B.R. 266, 281–84 (Bankr. S.D. Miss. Aug. 22, 2016) (Ellington) (Citing Flugence v. Axis Surplus Insurance Co. (In re Flugence), 738 F.3d 126 (5th Cir. Nov. 22, 2013) (Smith, Dennis, Higginson), in Chapter 13 case discharged in 2007 and reopened in 2015, undisclosed personal injury action filed in 2002 and settled during Chapter 13 case remained property of Chapter 13 estate; trustee can pursue debtor and personal injury attorney to recover settlement proceeds. “[T]he Debtor filed the Hinds County Action prior to the date the Debtors filed their Chapter 13 case. . . . [T]here is no question that the Hinds County Action was property of the Debtor’s bankruptcy estate and that pursuant to § 521(a)(1)(B)(I), the Debtor had a duty to disclose the Hinds County Action when he filed his petition. . . . Upon discharge, the undisclosed Hinds County Action remained property of the Debtor’s bankruptcy estate pursuant to § 554(d) even though the Debtor’s case was discharged and closed. . . . [B]ased upon the Fifth Circuit’s holding in Flugence, the Trustee has standing to pursue the claim against [counsel].”).
In re Wilson, 555 B.R. 547, 553 (Bankr. W.D. La. Aug. 5, 2016) (Kolwe) (Cause of action arising from postconfirmation car accident is property of the Chapter 13 estate; settlement proceeds are captured for unsecured creditors on trustee’s § 1329 motion to modify. “This Court . . . adopts the estate-replenishment approach. This approach gives effect to § 1306 by recognizing that all property acquired by the debtor after confirmation is property of the estate, while at the same time giving effect to § 1327 by recognizing that all property of the estate at the time of confirmation vests in the debtor.”).
Alexander v. Carrington Mortg. Servs. LLC (In re Alexander), No. 15-4054-rfn, 2015 WL 6689243 (Bankr. N.D. Tex. Oct. 8, 2015) (Nelms) (Under Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), bankruptcy court lacked constitutional authority over debtor’s challenge to prepetition foreclosure when property had been transferred to defendants prepetition and defendants did not file proofs of claim.).
In re Howard, 533 B.R. 532 (Bankr. S.D. Miss. July 23, 2015) (Olack) (Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S. Ct. 755, 88 L. Ed. 2d 859 (Jan. 27, 1986), does not preclude trustee's abandonment of contaminated property inherited during Chapter 13 case. Contaminated property inherited during Chapter 13 case is burdensome and of inconsequential value for abandonment purposes under § 554. Chapter 13 trustee can settle estate's claim in remediation lawsuit for payment of balance of unsecured debt ($2,700). Debtor has standing to object to trustee's abandonment of contaminated property notwithstanding that debtor is judicially estopped to continue 20-year-old remediation lawsuit when debtor did not schedule inheritance of contaminated property in Chapter 13 case 15 years ago.).
In re Ingram, 531 B.R. 121 (Bankr. D.S.C. May 14, 2015) (Duncan) (Reopening completed Chapter 13 case to add unscheduled postpetition cause of action denied when 60-month length limitation has expired and plan cannot be amended to increase payments to creditors in event of recovery. Debtors face judicial estoppel in state court action.).
In re Padula, No. 11-12985-BFK, 2015 WL 1931977, at *5-*6 (Bankr. E.D. Va. Apr. 28, 2015) (Kenney) (Failure to disclose postconfirmation tort for more than two years did not judicially estop debtor's pursuit of action when court has not "accepted" the debtor's position. "Debtor's cause of action arose after confirmation of the Debtor's Chapter 13 Plan . . . . The Court could not have 'accepted' the lack of disclosure of the claim in the Debtor's Schedules at that time because the cause of action did not exist . . . . Debtor still has not been discharged, and will not be discharged until she completes her plan payments. . . . There was no bankruptcy event between the accident . . . , and the amendment to the Debtor's Schedules . . . , from which the Court could conclude that it accepted the absence of the cause of action in the Debtor's Schedules in any way. . . . [T]o the extent that good faith may still be a legitimate inquiry in the post- Law v. Siegel environment, . . . [t]he Court heard the testimony of the Debtor [and] accepts her testimony as credible and forthright, and concludes that she simply did not understand that she needed to amend her Schedules until she was advised to do so. In fact, she disclosed the bankruptcy filing to two personal injury attorneys, and they advised her that she did not need to file anything in the bankruptcy case. She disclosed the personal injury case to her bankruptcy attorney[, who] concurred with the personal injury attorneys' advice and advised her that she did not need to amend her Schedules at that time. This testimony was unrebutted by any evidence of bad faith . . . . Further, the courts have held that where a claim is exempt, the debtor lacks a motive to conceal the existence of the claim from her creditors.").
In re Walley, 525 B.R. 320 (Bankr. E.D. Va. Feb. 11, 2015) (Phillips) (Citing Carroll v. Logan, 735 F.3d 147 (4th Cir. Oct. 28, 2013) (Niemeyer, Wynn, Floyd), insurance proceeds from postpetition personal injury action are property of Chapter 13 estate pursuant to § 1306; notwithstanding § 522(b)(3)(B), debtor can claim exemption in proceeds.).
In re Poesnecker, No. 5-07-bk-50507-JJT, 2014 WL 5503002, at *1-*3 (Bankr. M.D. Pa. Oct. 30, 2014) (Thomas) (After completion of 100% payment plan, case is reopened to answer question pending in state court litigation: whether debtor had duty to disclose slip and fall action that arose during Chapter 13 case. "There appears to be a possible conflict between two specific bankruptcy code sections. . . . § 1306 of the Bankruptcy Code [provides]: . . . . While this provision . . . appears clear enough, its significance is somewhat clouded by § 1327(b) . . . . The reconciliation of these two provisions ha[s] resulted in various courts rendering alternative conclusions as to the specific responsibilities of a debtor when confronted with the acquisition of postconfirmation property. . . . Because a debtor has a duty to account for all 'property of the estate' under § 521, it follows that there be a presumed duty to disclose to the court an identification of those items whenever received. . . . Even if there may be uncertainty as to whether property acquired while the estate is open and after property of the estate vests in the debtor, I find that the Third Circuit Court of Appeals has a significant history of requiring full disclosure by the debtor. . . . The state court has not asked that I determine whether this is property of the estate but whether it should have been disclosed in this bankruptcy. The answer can only be an emphatic 'yes.' . . . [T]he argument that the Debtor's fully completed 100% plan cuts off any reporting duty fails to recognize that inclusion of additional assets could allow for a modification that would require the payment of untimely filed claims, certain penalties, and interest under § 726(a)(3)(4), and/or (5) as may be required by § 1325(a)(4).").
In re Aycock, No. 10-80516, 2014 WL 1047803, at *3 (Bankr. W.D. La. Mar. 18, 2014) (Hunter) (Debtor with completed Chapter 13 plan ordered to show cause why case should not be converted to Chapter 7 when debtor failed to disclose large lawsuit settlement acquired postconfirmation. Citing Flugence v. Axis Surplus Insurance Co. (In re Flugence), 738 F.3d 126 (5th Cir. Nov. 22, 2014) (per curiam), "the debtor in Chapter 13 has a continuing duty to disclose the post-confirmation acquired asset so that its status as property of or outside the estate may be determined by the Bankruptcy Court. . . . Unlike in Flugence, where the debtor was merely silent as to the acquisition of post-petition cause of action, this debtor not only failed to adequately disclose the cause of action for more than two years, but blatantly contradicted its known value when he finally amended Schedule B to state 'post petition accident' of an 'unknown' value just four months after he signed a Settlement Agreement pursuant to which he was awarded over $4,000,000. . . . Such blithe disregard for the truth [can be] grounds for . . . sua sponte conversion . . . .").
In re Bratcher, No. 08-36225, 2013 WL 5309549, at *4, *5 (Bankr. S.D. Tex. Sept. 19, 2013) (Isgur) (Settlement of postconfirmation personal injury action is property of Chapter 13 estate. Plan "provision ma[de] it clear that the property of the estate does not vest in the debtor until entry of the discharge. All property acquired by the debtor, including post confirmation property, is property of the estate until entry of the discharge order. Regardless of how the Court interprets §§ 1306(a) and 1327(b), the settlement proceeds from the accident are property of the estate." Absent vesting provision, result would be the same: "'While the case is pending, the post-petition property . . . [is] added to the estate until confirmation, the event that triggers [section] 1327(b) and "vests" the property of the estate in the debtor. That is, the property interests comprising the pre-confirmation estate property are transferred to the debtor at confirmation, and this "vesting" is free and clear of the claims or interests of creditors provided for by the plan, [section] 1327(b), (c). Finally, the property of the estate once again accumulates property by operation of [section] 1306(a) until the case is "closed, dismissed, or converted."'").
Fields v. Buy George Auto Sales, Inc. (In re Fields), No. 12-00122, 2013 WL 1136923 (Bankr. N.D. Ala. Mar. 19, 2013) (Cohen) (Debtor amended schedules to add cause of action, preventing application of judicial estoppel. Adversary proceeding alleging that claim should not be paid because of TILA violation survived dismissal.).
Oparaji v. Wells Fargo Bank, N.A. (In re Oparaji), No. 10-03231, 2013 WL 889481 (Bankr. S.D. Tex. Mar. 8, 2013) (unpublished) (Isgur) (Wells Fargo was undersecured creditor that could not recover attorney fees incurred in defending litigation.), on remand from 698 F.3d 231, 236-38 (5th Cir. Oct. 5, 2012) (Reavley, Smith, Clement) (Judicial estoppel not appropriate: (1) Wells Fargo was not required to claim all of its arrearages during prior bankruptcy; therefore, failure to do so cannot be an inconsistent position when it chooses to seek additional arrears in subsequent case; (2) dismissal of prior bankruptcy before discharge revoked court's acceptance of Wells Fargo's earlier position for purposes of judicial estoppel. "[T]he District Court determined that creditors such as Wells Fargo are legally required to include all accrued post-petition arrearages in each amended claim they submit. . . . Wells Fargo filed multiple proofs of claim and did not include all of the post-petition arrearages owed to it by Debtor in each amended proof of claim. As a result, the District Court found that Wells Fargo's claims in the First and Second Bankruptcies were inconsistent as a matter of law and invoked the doctrine of judicial estoppel to prevent Wells Fargo from proceeding with its increased claim. . . . . The District Court attempts to rationalize this holding by analogizing it to a situation in which a debtor fails to disclose an asset in bankruptcy court. . . . According to the District Court, both debtors and creditors are bound by the requirement of full disclosure in a bankruptcy. . . . This argument fails to appreciate the difference between a debtor who has failed to disclose an asset and a creditor who has failed to include all accrued interest in each revised claim. In the first instance, the creditor has no way of knowing about the concealed asset except through the debtor's disclosure. In the second instance, however, the debtor has the ability and responsibility to keep track of his outstanding debt. More importantly, the District Court has not identified any statute or judicial precedent that imposes a legal responsibility on Wells Fargo to seek the full amount to which it is entitled in each amended claim. While debtors are indisputably required to disclose all assets to the court, this requirement has not been applied to creditors. . . . [T]he Bankruptcy Court's acceptance of Wells Fargo's claims was revoked when Debtor's bankruptcy was dismissed without a discharge. . . . [S]ince the Bankruptcy Court dismissed Debtor's bankruptcy plan without granting a discharge, the court's acceptance of that plan was negated and the parties were no longer bound by its terms."), rev'g and remanding 458 B.R. 881 (S.D. Tex. Nov. 3, 2011) (Lake) (Judicial estoppel barred Wells Fargo from taking inconsistent positions with respect to arrearage amount claimed in prior, dismissed case. Under Browning Manufacturing v. Mims (In re Coastal Plains), 179 F.3d 197 (5th Cir. June 18, 1999) (Garza, Politz, Barksdale), judicial acceptance of prior position only requires that first court adopted position urged by party. Bankruptcy court concluded that it had accepted Wells Fargo's prior inconsistent position in first bankruptcy by approving plan modification incorporating proof of claim amounts.), aff'g 454 B.R. 725, 731 (Bankr. S.D. Tex. Dec. 29, 2010) (Isgur) (Judicial estoppel precludes Wells Fargo from asserting arrearages and charges that are inconsistent with proofs of claim filed in prior dismissed case. Estoppel would not prevent claim for charges accruing after filing of claims in prior case. Court relied on amended claims in prior case to approve modification of plan to cure arrearages. Wells Fargo was barred from asserting inconsistent amounts that could have been included in prior case. Effect of dismissal in prior case did not prevent application of judicial estoppel. Although § 349 returns parties to position they were in at time of filing, with respect to property rights, "[i]t does not erase all history. Parties may still face consequences as a result of the earlier bankruptcy. . . . [N]othing in § 349 prevents the invocation of judicial estoppel with respect to positions taken in a dismissed bankruptcy.").
In re D'Antignac, No. 05-10620, 2013 WL 1084214 (Bankr. S.D. Ga. Feb. 19, 2013) (Barrett) (No purpose would be served to reopen case that was discharged and closed in 2009 when five-year plan length limitation would preclude distribution of any proceeds of unscheduled litigation. District court could determine if judicial estoppel prevented pursuit of unscheduled cause of action.).
In re James, 487 B.R. 587 (Bankr. N.D. Ga. Feb. 19, 2013) (Murphy) (Case reopened three years after closing to allow scheduling of undisclosed cause of action to prevent application of judicial estoppel by state court. Creditors had been paid 100% in completed plan and would not benefit from reopening, but debtor lacked motive to conceal claim. Trustee had declined to pursue cause of action that would serve no creditor purpose.).
In re Adams, 481 B.R. 854 (Bankr. N.D. Miss. Oct. 12, 2012) (Houston) (Debtor had continuing duty to disclose personal injury cause of action in bankruptcy case, but application of judicial estoppel could be determined by state court. Citing Copiah County, Mississippi v. Oliver, 51 So. 3d 205 (Miss. Jan. 13, 2011) (Waller, Lamar, Pierce), state court "referred" estoppel question to the bankruptcy court.).
In re Ramirez, No. 10-01945 (ESL), 2012 WL 1072821 (Bankr. D.P.R. Mar. 28, 2012) (Lamoutte) (After district court declined to dismiss debtor's Fair Debt Collection Practices Act suit, bankruptcy court approved amendment of Schedule B to include undisclosed cause of action, permitting prosecution with any recovery for distribution to unsecured creditors. Section 1303 gives debtor rights and powers over use and sale of estate property, and confirmation vested cause of action in debtor.), on further hearing sub nom. Oquendo-Claudio v. Santander Fin. Servs., Inc., No. 10-2185 GAG, 2011 WL 5163319 (D.P.R. Oct. 31, 2011) (Gelpi) (Chapter 13 debtor was not barred by judicial estoppel from pursuing cause of action because schedules had been amended to include claim before closing of case; however, judicial estoppel was applied to Chapter 7 debtors who had not scheduled causes of action related to Fair Debt Collection Practice Act.).
In re Goines, 465 B.R. 704 (Bankr. N.D. Ga. Feb. 9, 2012) (Sacca) (Debtors' exclusive control over property of estate included prosecution of nonbankruptcy cause of action for benefit of estate; debtors, not trustee, had obligation to file application to employ special counsel.).
Ortiz v. Aurora Health Care, Inc., 464 B.R. 807 (Bankr. E.D. Wis. Feb. 3, 2012) (Kelley) (After remand for consideration of Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), bankruptcy court recommended denial of motion to dismiss based on judicial estoppel since cause of action for failure to redact proof of claim did not arise until after defendant filed proof of claim. Debtors had continuing duty to amend schedules, but adversary proceeding provided adequate disclosure of claims, as well as notice to trustee of postpetition claim. Defendant's claim had account numbers and confidential medical records attached, but no damages were proven.), rejected report and recommendation, 477 B.R. 714 (E.D. Wis. Aug. 21, 2012) (Adelman).).
In re Stretcher, 466 B.R. 891 (Bankr. W.D. Tex. Dec. 14, 2011) (Akard) (Unscheduled, prepetition lawsuit was property of the estate at the petition and proceeds became projected disposable income when received 14 months before end of five-year plan; proceeds are captured for unsecured creditors at modification after confirmation. "Forward-looking" notion of projected disposable income in Nowlin v. Peake (In re Nowlin), 576 F.3d 258 (5th Cir. July 17, 2009) (King, Dennis, Elrod), included proceeds in projected disposable income when debtors moved to modify the plan under § 1329.).
In re Rivera, No. 10-01470, 2011 WL 4067511 (Bankr. D.P.R. Sept. 13, 2011) (Lamoutte) (Debtor who failed to schedule prepetition cause of action lacked clean hands to pursue Bankruptcy Rule 9011 sanctions against would-be defendant in cause of action that was omitted.).
Kemp v. Segue Distrib., Inc. (In re Kemp), No. 11-5002, 2011 WL 3664497 (Bankr. W.D. La. Aug. 19, 2011) (Summerhays) (Bankruptcy court lacked subject matter jurisdiction over debtors' adversary proceeding seeking declaration that they were not judicially estopped from pursuing postpetition personal injury action in state court. Weight of authority imposed continuing duty on debtors to disclose postpetition causes of action. Request for declaratory relief did not fall within "arising under" or "arising in" jurisdiction. Debtors had completed plan and received discharge. Outcome of declaratory action would have no impact on creditors, plan or administration of estate.).
Shields v. Adams (In re Adams), 453 B.R. 774, 780 (Bankr. N.D. Ala. May 6, 2011) (Stilson) (Trustee's § 542 cause of action was not interest in property that estate acquired after commencement of case; avoiding powers are not "property" but rather statutorily created rights to recover property. Prior to conversion to Chapter 7, debtor received, but allowed ex-spouse to keep, federal tax refund. Refund became property of bankruptcy estate, but Chapter 13 debtor had exclusive control. Chapter 13 trustee was statutorily prohibited from using, selling or leasing refund and lacked standing to demand turnover. After conversion to Chapter 7, debtor no longer had possession of refund, and Chapter 7 trustee could not obtain turnover, since § 542 permitted turnover only against party in possession. "Because the § 542 cause of action did not become property of the Chapter 13 estate, it did not become property of the Chapter 7 estate upon conversion of the Debtor's case. . . . Trustee is not permitted to bring the § 542 cause of action on behalf of the estate.").
SL Corp. v. Malone (In re Malone), No. A10-4088-TJM, 2011 WL 1541289 (Bankr. D. Neb. Apr. 21, 2011) (Mahoney) (Absence bad faith, at conversion to Chapter 7, back pay and benefits award for wrongful termination during Chapter 13 case did not become property of bankruptcy estate.).
In re Ferguson, 445 B.R. 744, 749 (Bankr. N.D. Tex. Mar. 30, 2011) (Lynn) (After Chapter 13 trustee intervened, Debtors and trustee overcame on appeal state trial court's dismissal of prepetition accident action based on judicial estoppel; action settled for $1 million soon after reinstatement, and bankruptcy court refused to allow one-third contingency fee sought by trustee's counsel. Texas Supreme Court reinstated personal injury suit that was dismissed on judicial estoppel grounds notwithstanding that action was revealed in Statement of Financial Affairs and discussed with trustee at meeting of creditors. Trustee's involvement arguably had significance, in light of Kane v. National Union Fire Insurance Co., 535 F.3d 380 (5th Cir. July 14, 2008) (King, Wiener, Elrod), which acknowledged different role of bankruptcy trustee in causes of action. Bankruptcy court had approved trustee's employment of special counsel and was aware of one-third contingency fee agreement between trustee and counsel, but court had advised the parties at prior hearing that it would not be bound by one-third contingency. There were questions about improper sharing of compensation under § 504 between trustee's attorney and attorney sharing office space who was not disclosed at time of employment. Court did not sanction either attorney, but substantially reduced fees were awarded based on time rather than contingency. Had court realized that unsecured debt was so minimal, "it would not even have considered retention on a basis that could result in the award of a large contingency fee principally at Debtors' expense." Court was not impressed that if trustee had not intervened and assisted in resurrecting cause of action, debtors would likely have been barred by judicial estoppel and recovered nothing.).
Vardaman v. Schwartz (In re Douglas), No. 10-01187-DWH, 2011 WL 832501 (Bankr. N.D. Miss. Mar. 3, 2011) (Houston) (Summary judgment was premature in action by debtor and Chapter 13 trustee against attorneys. Settlement of personal injury action was approved for $500,000, but funds were embezzled by attorney employed by personal injury counsel. Court needed more information concerning agency relationship that might have existed between personal injury attorney and embezzling attorney.).
In re Johnson, No. 05-38147-BJH-13, 2010 WL 3491187 (Bankr. N.D. Tex. Sept. 2, 2010) (unpublished) (Houser) (Undisclosed prepetition cause of action remained property of Chapter 13 estate, and U.S. trustee's motion to reopen case four years after closing was not time barred. U.S. trustee promptly moved to reopen upon learning that debtor would receive $40,000 in class action settlement.).
Robert v. Household Fin. Corp. (In re Robert), 432 B.R. 464 (Bankr. D. Mass. July 7, 2010) (Boroff) (Judicial estoppel barred complaint alleging violations by creditor in refinancing of first mortgage when debtors did not schedule cause of action in prior Chapter 7 case and confirmed plan in current Chapter 13 provided for payment of prepetition arrearage along with regular monthly payments. Debtors had obligation to disclose potential claims against creditor in Chapter 7 and in Chapter 13 under § 541(a). Undisclosed assets were not deemed abandoned on closing of prior Chapter 7 estate; if cause of action existed, it would belong to prior Chapter 7 trustee.).
In re Powers, 435 B.R. 385 (Bankr. N.D. Tex. June 24, 2010) (Jones) (Vioxx Settlement received postconfirmation was property of estate under § 1306(a)(1), but since debtors had completed plan payments, modification to pay proceeds to creditors was not possible. In accordance with § 1306(b), settlement funds belonged to debtors.).
In re Nestel, No. 09-60947, 2010 WL 6444582 (Bankr. N.D. Ga. May 6, 2010) (Massey) (Motion to approve settlement of personal injury claim was denied for failure to serve notice on all creditors.).
Cruz v. U.S. Bank, N.A. (In re Cruz), No. 4:09-ap-01447-JMM, 2010 WL 1541432 (Bankr. D. Ariz. Apr. 16, 2010) (unpublished) (Marlar) (Debtor was judicially estopped from asserting claims against mortgage lender when cause of action was not disclosed in schedules, stay relief had been granted to allow foreclosure and plan had been amended to eliminate creditor without disclosing intent to sue.).
In re Baldwin, No. 09-09854-8-JRL, 2010 WL 1427587 (Bankr. E.D.N.C. Apr. 7, 2010) (unpublished) (Leonard) (Debtor appropriately scheduled potential causes of action for consumer rights violations under federal and state statutes; failure to list claims could have precluded debtor from pursuing causes of action.).
In re Augustine, No. 05-00937S, 2009 WL 5068412 (Bankr. N.D. Iowa Dec. 7, 2009) (unpublished) (Edmonds) (After reopening completed and closed Chapter 13 case, trustee was entitled to proceeds of cause of action debtors revealed in amended schedules filed after reopening. Debtors resisted payment of settlement funds to creditors, arguing that they had satisfied best-interests-of-creditors test at confirmation. Unsecured creditors only received 62% and would have been entitled to more had cause of action been scheduled originally.).
In re McIntyre, No. 08-34900-tmb13, 2009 WL 3823039 (Bankr. D. Or. Nov. 13, 2009) (Brown) (When confirmed plan vested property in debtor, funds from settlement of adversary proceeding were not estate property; debtors may pay attorney fees for pursuit of adversary proceeding directly rather than turning over settlement to trustee for plan distribution.).
In re Henneghan, No. 03-01216, 2009 WL 2855835 (Bankr. D.D.C. June 15, 2009) (unpublished) (Teel) (Debtor can't reopen Chapter 13 case after completion of payments to schedule a prepetition lawsuit to avoid judicial estoppel because it is too late to amend plan to distribute lawsuit proceeds to creditors and plan paid allowed claims in full with interest. Confirmation order postponed vesting under § 1327(b) until entry of discharge, and unscheduled lender liability claim was property of estate until it vested in debtor at discharge. Case was reopened for debtor's motion to annul automatic stay to validate debtor's pre-discharge litigation.).
In re Stellingwerf, No. 05-61594-13, 2009 WL 1652434 (Bankr. D. Mont. June 10, 2009) (unpublished) (Kirscher) (Judicial estoppel precluded exemption claim when debtors failed to schedule prepetition cause of action and had not amended schedules; trustee was authorized to settle cause of action and distribute proceeds to administrative expenses and claims.).
In re Hussain, 397 B.R. 730 (Bankr. D.N.J. Dec. 5, 2008) (Lyons) (Settlement proceeds from malpractice action are property of bankruptcy estate recoverable by Chapter 7 trustee at conversion. Debtor is estopped to claim proceeds when Chapter 13 plan stated that settlement proceeds would pay creditors' claims.).
Settlement Capital Corp. v. Allstate Life Ins. Co. (In re Jack), 390 B.R. 307 (Bankr. S.D. Tex. July 10, 2008) (Bohm) (Debtor failed to prove that her deceased husband lacked mental capacity to assign structured personal injury settlement but assignment of annuity contracts was beyond husband's authority; decedent's ex-wife did not have child support lien against assigned interests because lien did not exist until after assignment.).
In re Bienz, No. 05-36632-H3-13, 2008 WL 2325626, at *2 (Bankr. S.D. Tex. June 3, 2008) (unpublished) (Letitia Clark) (Prepetition personal injury claim was property of bankruptcy estate until time to object to debtors' exemption in potential proceeds expired.).
In re McIntire, No. 04-15864, 2008 WL 1771861, at *10 (Bankr. E.D. Tenn. Apr. 14, 2008) (unpublished) (Stinnett) (In Chapter 11 case, prior Chapter 13 filing did not toll limitations period for bringing suit against contractor for construction defaults. "The Tennessee statutes do not include a provision that suspends or tolls the time for bringing suit while the potential plaintiff is the debtor in a bankruptcy case. The Tennessee statutes also do not treat any extension of time by § 108(a) of the bankruptcy code as tolling or suspending a period of repose or limitation.").
In re Cox, 381 B.R. 525 (Bankr. E.D. Tenn. Jan. 4, 2008) (Stair) (Sexual harassment suit pending at petition was property of bankruptcy estate, and confirmation order provided that trustee would disburse funds on hand in accordance with confirmed plan; debtor's motion for turnover of funds at voluntary dismissal of case is denied.).
In re Foreman, 378 B.R. 717 (Bankr. S.D. Ga. Nov. 26, 2007) (Dalis) (Applying Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), wrongful death action that arose postconfirmation is not property of bankruptcy estate because it is not necessary for execution of confirmed plan; it is unnecessary for debtor to amend schedules, and judicial estoppel will not be applicable to nondisclosure of cause of action.).
In re Baxter, No. 06-10672-DHW, 2007 WL 2996435 (Bankr. M.D. Ala. Sept. 27, 2007) (unpublished) (Williams) (Citing Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), postpetition cause of action not necessary for plan consummation is not property of estate.).
In re Baxter, 374 B.R. 292 (Bankr. M.D. Ala. Aug. 20, 2007) (Williams) (Applying Telfair v. First Union Mortgage Corp., 216 F.3d 1313 (11th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S. Ct. 765, 148 L. Ed. 2d 666 (2001), and Muse v. Accord Human Resources, Inc., 129 Fed. Appx. 487 (11th Cir. 2005), and distinguishing Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), cause of action for violation of automatic stay and violation of Fair Debt Collection Practices Act that arose after confirmation is not property of the estate because action is unnecessary to execution of plan; proceeds of cause of action are not property of estate but can be considered under disposable income test postconfirmation modification on motion of trustee.), order denying certification for direct appeal, 2007 WL 2848829 (Bankr. M.D. Ala. Sept. 24, 2007).).
Tarver v. Citifinancial Auto, Ltd. (In re Tarver), Nos. 05-12028-DHW, 07-1033-DHW, 2007 WL 1876369, at *4 (Bankr. M.D. Ala. June 28, 2007) (unpublished) (Williams) (Truth in Lending Act complaint is not barred by judicial estoppel: debtors did not take inconsistent position in prior confirmation proceeding; and failure to reveal TILA action was not for purpose to "intentionally mislead either the parties or the court." TILA cause of action could not have been effectively litigated at confirmation.).
Jones v. GMAC (In re Jones), No. 06-80150-JAC-13, 2007 WL 1725593 (Bankr. N.D. Ala. June 13, 2007) (unpublished) (Caddell) (Truth in Lending Act complaint attacking charge for GAP insurance is barred by res judicata effect of confirmation of plan that proposed to pay GMAC in full. Four elements of res judicata are present in plan confirmation: valid prior judgment from court of competent jurisdiction, final judgment on merits, identity of parties, and same cause of action in both proceedings.).
Consumer Portfolio Servs., Inc. v. Coleman (In re Coleman), Nos. 04-70048-CMS, 04-70049-CMS, 2007 WL 1526651 (Bankr. N.D. Ala. May 24, 2007) (unpublished) (Stilson) (Cause of action against car lender for UCC violation in notice of sale arose postpetition and became property of estate; provision for payment of deficiency claim in confirmed plan precluded action against lender.).
Environmental Litig. Group, P.C. v. Crawford (In re Price), No. 07-00017, 2007 WL 1125639 (Bankr. N.D. Ala. Apr. 16, 2007) (unpublished) (Mitchell) (Law firm representing debtor in mass tort case must be approved for employment under § 327(c).).
In re Stewart, No. 06-30053-rld13, 2007 WL 1427443 (Bankr. D. Or. Apr. 4, 2007) (unpublished) (Dunn) (Settlement of debtors' prepetition attorney malpractice action for $45,000 and 25% contingency fee is approved; net proceeds paid to trustee for distribution under confirmed plan.).
In re Hendrix, No. BK 04-72038-CMS-13, 2007 WL 748648 (Bankr. N.D. Ala. Mar. 7, 2007) (unpublished) (Stilson) ($8,000 settlement of personal injury approved with 40% contingent fee.).
In re Stewart, 373 B.R. 801 (Bankr. S.D. Ga. Mar. 6, 2007) (Davis) (Postpetition cause of action under Federal Employers' Liability Act is property of estate; Eleventh Circuit's estate transformation approach, adopted in Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), does not apply to assets acquired by Chapter 13 debtor after confirmation. Proposed settlement by Chapter 13 trustee did not bind debtor. Debtor had no notice of proposed settlement and debtor had concurrent authority with Chapter 13 trustee under §§ 1301 and 1306 as well as Rules 6009 and 9019 to prosecute and compromise claim.).
Boland v. Crum (In re Brown), 363 B.R. 591 (Bankr. D. Mont. Mar. 5, 2007) (Kirscher) (Settlement of class action involving Montana Consumer Loan Act paid directly to Chapter 13 debtors when amounts were insufficient to justify reopening cases.).
Dixon v. Green Tree, Inc. (In re Dixon), No. 06-8054, 2007 WL 703612 (Bankr. M.D. Ala. Mar. 5, 2007) (unpublished) (Sawyer) (Chapter 13 debtors' complaint for damages resulting from repossession of mobile home is subject to compulsory arbitration.).
In re Turner, No. 03-00908-BGC-13, 2007 WL 128740 (Bankr. N.D. Ala. Jan. 11, 2007) (unpublished) (Stilson) (Chapter 13 cases reopened for hearings on settlement of undisclosed personal injury suits; suits were property of the estates, but settlements and fees for plaintiff's counsel approved.). See also In re Shamery, No. 04-70785-CMS-13, 2006 WL 3747124 (Bankr. N.D. Ala. Dec. 15, 2006); In re Chaney, No. 02-08061-BGC-13, 2006 WL 3735944 (Bankr. N.D. Ala. Dec. 14, 2006); In re Lawrence, No. 00-70749-CMS-13, 2006 WL 3617978 (Bankr. N.D. Ala. Dec. 11, 2006); In re Griffin, No. 05-72532-CMS-13, 2006 WL 3392919 (Bankr. N.D. Ala. Nov. 22, 2006).).
Dean v. Global Fin. Credit, LLC (In re Dean), 359 B.R. 218 (Bankr. C.D. Ill. Dec. 28, 2006) (Altenberger) (Settlement of debtors' personal injury lawsuit was property of estate; stay-violation complaint against Global Financial Credit, LLC, which had provided prebankruptcy funding of personal injury claims not dismissed because complaint alleged debtors' interest in settlement funds.).
In re Harvey, 356 B.R. 557, 565 (Bankr. S.D. Ga. Sept. 1, 2006) (Davis) (Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), and Ajaka v. BrooksAmerica Mortgage Corp., 453 F.3d 1339 (11th Cir. 2006), required Chapter 13 debtor to amend schedules to include postconfirmation car accidents and settlements. In Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), circuit adopted estate transformation approach to resolving §§ 1306(a) and 1327(b), holding that "confirmation returns so much of that property to the debtor's control as is not necessary to the fulfillment of the plan." 216 F.3d at 1340. In Witko v. Menotte (In re Witko), 374 F.3d 1040 (11th Cir. 2004), circuit concluded that postpetition malpractice cause of action was not property of the estate, but Chapter 13 case had been converted to Chapter 7 and court did not consider §§ 1306(a) and 1327(b). In Muse v. Accord Human Resources, Inc., 129 Fed. Appx. 487 (11th Cir. 2005), which was not binding authority because not published, court held post-confirmation wage claim was not property of the estate, but there was "no assertion that it was necessary for the plan." 129 Fed. Appx. at 490. Postconfirmation assets may be necessary to the plan, especially in context of possible modification and no abandonment under § 554. Telfair was not complete authority on the vesting effect and that postconfirmation assets, such as causes of action, become property of the estate under § 1306 and "are not deemed to be retroactively vested in the debtor as of confirmation by operation of Section 1327. Rather, they must be scheduled so that the Trustee's or a creditor's right to seek modification is a meaningful right. If they are not scheduled, they remain property of the estate pursuant to Section 1306 and 554(d).").
Loubser v. Hoover (In re Loubser), No. 06-4015, 2006 WL 2190593 (Bankr. N.D. Ind. July 31, 2006) (unpublished) (Grant) (Pro se complaint for "deformation [sic] of character" and for failure to hold harmless from mortgages as ordered in a divorce decree is property of the Chapter 13 estate within the "related to" jurisdiction of the bankruptcy court.).
Sullivan v. Decision One Mortgage (In re Sullivan), 346 B.R. 4 (Bankr. D. Mass. July 21, 2006) (Feeney) (Chapter 13 debtor's adversary proceeding against mortgage lenders for breach of contract, unconscionability and fraud is barred by judicial estoppel based on debtor's failure to list the causes of action in a prior Chapter 7 case.).
In re Goodheart, Nos. 00-39526 (DHS), 98-21153 (DHS), 2006 WL 2085242 (Bankr. D.N.J. July 18, 2006) (unpublished) (Steckroth) (Discrimination lawsuit settled by trustee in debtor's prior Chapter 7 case is not property of subsequent Chapter 13 estate when debtor repeatedly and abusively continues to assert that settlement was inappropriate.).
Hearn v. Bank of N.Y. (In re Hearn), 337 B.R. 603 (Bankr. E.D. Mich. Feb. 3, 2006) (Shefferly) (Debtor has standing to avoid unrecorded mortgage when modified plan provided that debtor had standing to pursue avoidance actions; debtor conceded that avoided lien was preserved for estate under § 551, and debtor was ordered to further modify plan to provide that unsecured creditors receive that benefit.).
In re Farmer, 324 B.R. 918 (Bankr. M.D. Ga. Apr. 18, 2005) (Laney) (Personal injury action that arose years after confirmation and at about the same time as completion of payments under the confirmed plan did not become property of the Chapter 13 estate, and the debtors' action was not precluded by judicial estoppel because the debtors took no inconsistent position. Plan was confirmed in 1998. In August 2003, the trustee indicated to the debtors that payments were completed. In September 2003, the debtors were involved in an accident, and a lawsuit was filed in April 2004. "The [Wolfork v. Tackett, 273 Ga. 328, 540 S.E.2d 611 (2001),] decision was limited in Chicon v. Carter, 258 Ga. App. 164, 573 S.E.2d 413 (2003). The Georgia Court of Appeals distinguished Wolfork from Chicon because in Chicon 'the injury itself and the action occurred after confirmation of a plan . . .' . . . The present case is analogous to Chicon rather than Wolfork because the injury occurred after confirmation and the Debtors were discharged after completing their plan. . . . [T]he Debtors have not taken inconsistent positions and therefore judicial estoppel does not apply. . . . Under [Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000)], the cause of action in the present case is not an asset of the bankruptcy estate. At confirmation there was no asset, because the cause of action did not arise until almost five years later. The asset was clearly not necessary to fulfill the Farmer's plan, as the case was completed a month before the accident.").
Santangelo v. Fairbanks Capital Corp. (In re Santangelo), 325 B.R. 874 (Bankr. M.D. Fla. Mar. 22, 2005) (Jennemann) (Applying Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), any recovery in class action would not be property of estate postconfirmation because proceeds are not necessary for plan. Since proceeds are not property of estate, automatic stay doesn't apply. Vesting effect under Telfair of nonessential property trumps plan language attempting to retain postpetition property in estate and under stay protection.).
In re Young, No. 98-41950, 2004 WL 6060948 (Bankr. S.D. Ga. Nov. 22, 2004) (unpublished) (Davis) (Postpetition cause of action was not property of estate when not necessary for completion of successful plan. Applying Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. July 7, 2000) (Tjoflat, Marcus, Kravitch), reopening of closed case denied when there was no need to amend and schedule postpetition cause of action.).