The Ninth Circuit continues to apply judicial estoppel to claims not asserted in schedules. In a recent slip opinion, the Ninth Circuit upheld the district court’s decision to grant a motion for summary judgment when the Debtor (in this case, the ex-husband) failed to disclose in his schedules that he had a cause of action against his ex-wife. His failure to list the claim precluded him from prosecuting the claim. The Court cited to the general proposition that when a claim is “not raised in a reorganization plan or otherwise mentioned in the debtor's schedules or disclosure statements,” judicial estoppel prevents that party from asserting that claim. Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778, 783 (9th Cir.2001). See Mergia v. Adams, Slip Opinion 2010 WL 4877815 (9th Cir. 2010).
As a Bankruptcy Debtor Attorney it is amazing how many Clients don't disclose all of their asset information to us. If they tell us the truth, the likelihood is that we can protect them. Your right, disclosure is the key.
ReplyDeleteBrian, your doing a great job......I've told you that in person but will have to keep it anonymous for client issues, your one of the most professional trustees and attorneys we have and despite seeing you in Court getting the wrath of a particular attorney, you handled yourself with utmost professionalism. You even had the will to give that attorney advice on what the right thing to to do was which was not taken and then that attorney got reamed in Court by the judge. You will know who I am when I say, you can lead a horse to water but you can't make them drink.
ReplyDeleteHave a GREAT Holiday and I look forward to the next MPG which better be in January!
I am not a lawyer. Is there a standard questionnaire/checklist that clients receive to help discover all the items that need to be included in schedules/disclosures? Or maybe each lawyer or law firm develops their own list/questionnaire?
ReplyDeleteIf it is dependent on some legal form, especially a government one, I suggest that it could be indecipherable to the average citizen and would lead to errors.
It is not a very happy time so folks are understandably going to have trouble focusing and possibly not remember everything that should be disclosed.
Just a thought.