Posted by NCBRC - December 1st, 2016
NCBRC has filed an amicus brief in the Eleventh Circuit on behalf of the NACBA membership to address the issue of that circuit’s approach to judicial estoppel. Slater v. U.S. Steel, No. 12-15568 (filed October 24, 2016).
Twenty one months after filing an employment discrimination suit in federal district court against her former employer, U.S. Steel, Sandra Slater filed for bankruptcy. (The original case was filed under chapter 7 and later converted to chapter 13). She failed to list the pending federal case in her bankruptcy schedules. U.S. Steel then moved the district court to bar the discrimination suit based on the doctrine of judicial estoppel. The district court granted the motion and Ms. Slater appealed. Read More
Posted by NCBRC - May 24th, 2016
Issue preclusion provided a short-cut to finding that the debtor’s liability for the costs and penalties incurred under state consumer protection laws was nondischargeable in bankruptcy under section 523(a)(6). O’Rorke v. Porcaro (In re Porcaro), No. 15-26 (B.A.P. 1st Cir. Feb. 3, 2016). Read More
Posted by NCBRC - February 25th, 2016
Applying little analysis beyond recitation of bullet points, the Eighth Circuit found that bankruptcy debtors have an obligation to report lawsuits filed during the life of the chapter 13 plan and that failure to do so justifies application of judicial estoppel. Jones v. Bob Evans Farms, Inc, No. 15-2068 (8th Cir. Jan. 26, 2016). Read More
Posted by NCBRC - July 21st, 2014
In the context of judicial estoppel, courts are divided on the issue of whether, for purposes of analyzing the defense of mistake or inadvertence, a plaintiff’s subjective intent matters. Several recent cases touch on this issue. Read More
Posted by NCBRC - October 8th, 2013
In a disturbing trend favoring personal injury defendants over debtors who, without actual intent to deceive, fail to inform the bankruptcy court of a potential lawsuit, the Fifth Circuit applied the doctrine of judicial estoppel to prevent the debtor from benefiting from her state lawsuit. Flugence v. Axis Surplus Ins.(In re Flugence), No. 13-30073 (5th Cir. Oct. 4, 2013). Read More
Posted by NCBRC - September 9th, 2013
When determining whether judicial estoppel should be applied in cases where a debtor has failed to disclose a pending lawsuit in her bankruptcy schedules, the ninth circuit expanded the inquiry into what constitutes “inadvertence” or “mistake” to include a subjective component. Read More
Posted by NCBRC - October 12th, 2012
The Fifth Circuit ignored its own rules of judicial estoppel, disregarded the purposes of section 349(b), and overrode the factual findings and discretionary decision of the Bankruptcy Court in reversing the lower court’s finding that Wells Fargo was judicially estopped from claiming substantially greater arrearages in a second bankruptcy than it had claimed in the first, dismissed, bankruptcy. Wells Fargo v. Oparaji (In re Oparaji), No. 11-20871 (5th Cir. Oct. 5, 2012). Read More
