Judicial Estoppel Bars Lawsuits Not Disclosed in Bankruptcy

In Berge v. Kudo Mader and DMG America, Inc., the Illinois Appellate Court affirmed the trial court’s application of judicial estoppel dismissing a plaintiff’s state court negligence lawsuit where she had failed to disclose the lawsuit in her bankruptcy proceedings. [1]

The plaintiff filed chapter 13 bankruptcy in April 2006, and filed a negligence complaint in state court based on an auto accident in November 2007. She converted her case to chapter 7 in May 2009. The bankruptcy court entered an order of discharge in October 2009. It was undisputed that the plaintiff never disclosed her state court claim in her bankruptcy case despite many opportunities to do so. [2]

The question presented for review was whether a plaintiff’s failure to disclose a cause of action as an asset in her bankruptcy case prevented her from proceeding with that cause of action in state court under the doctrine of judicial estoppel.

Judicial estoppel prevents a party who makes a representation in one case from taking a contrary position in another case. [3] Illinois courts have determined that judicial estoppel has the following five separate elements:

  1. the two positions must be taken by the same party;
  2. the positions must be taken in judicial proceedings;
  3. the positions must be given under oath;
  4. the party must have successfully maintained the first position, and received some benefit thereby; and
  5. the two positions must be ‘totally inconsistent.’ [4]

The Appellate Court found that all five elements were present in this case. She had taken a position in bankruptcy court that she had no pending lawsuits, which was inconsistent with her proceedings in state court. These positions were taken under oath, yet she never disclosed the lawsuit to the bankruptcy court and received a bankruptcy discharge of her debts. The Appellate Court noted that while there was a paucity of state cases directly addressing this issue, federal caselaw was also consistent with the view that a debtor who does not disclose an asset cannot later realize a benefit from that concealed asset. [5]

The Appellate Court rejected the plaintiff’s contention that the state court did not have jurisdiction to decide whether judicial estoppel applied, noting that it was axiomatic that jurisdictional issues can be raised at any time, even sua sponte. [6]  The Appellate Court also disagreed with the plaintiff’s argument that “bad faith” was a necessary element for the imposition of judicial estoppel, based on the five elements of judicial estoppel that Illinois courts have considered. [7]

The Appellate Court also found the plaintiff’s arguments that it was her attorney that failed to schedule the lawsuit, as well as her effort to amend her bankruptcy petition after being faced with the motion seeking application of judicial estoppel against her, unimpressive. [8] Finally, it rejected the plaintiff’s argument that she should be allowed to try to prove that her contradictory filings made under oath were really inadvertent or the result of some mistake, finding the plaintiff’s failure to satisfy her disclosure duty not inadvertent as defined in federal cases. [9]

[1] 2011 IL App (1st) 103778, 957 N.E.2d 968, 354 Ill.Dec. 374 (1st Dist. 2011).

[2] ¶ 3.

[3] ¶ 12 (citing Bidani v. Lewis, 285 Ill. App. 3d 545 (1996)).

[4] ¶ 13 (citing Ceres Terminals, Inc. v. Chicago City Land & Trust Co., 259 Ill. App. 3d 836, 851 (1994)).

[5] ¶ 16 (citing Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir. 2006); Payless Wholesale Distributors, Inc. v. Alberto Culver (P.R.), Inc., 989 F.2d 570 (1st Cir. 1993); Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General Motors Corp., 337 F.3d 314 (3d Cir. 2003); Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir. 2005); United States ex rel. Gebert v. Transport Administrative Services, 260 F.3d 909, 917-19 (8th Cir. 2001); Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778 (9th Cir. 2001); Barger v. City of Cartersville, 348, F.3d 1289, 1297-98 (11th Cir. 2003) (Barkett, J., dissenting)).

[6] ¶  5 (citing City of Marseilles v. Radke, 287 Ill. App. 3d 757 (1997)).

[7] ¶ 6-7 (distinguishing Dailey v. Smith, 292 Ill. App. 3d 22, 26 (1997) where the court found that omitting a claim in bankruptcy on good faith reliance upon advice of counsel did not invalidate a debtor’s discharge, since the present action was not a challenge to the debtor’s discharge, but a negligence action)).

[8] ¶  17-18.

[9] ¶ 19.

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2 responses to “Judicial Estoppel Bars Lawsuits Not Disclosed in Bankruptcy

  1. To me this case was wrongly decided because the Illinois trial and appellate courts didn’t understand the bankruptcy rules. There is nothing in the national bankruptcy rules that requires a Chapter 13 debtor to amend his or her schedules post-petition when the debtor acquires a post-petition asset, as in this case. Nor is there a local rule requiring that in the Northern District of Illinois. The Illinois court did not seem to realize this. Furthermore, it is not the general practice of debtor’s attorneys when a case is converted from 13 to 7 to file a schedule of post-petition assets because that is only required when the conversion is in bad faith. See Rule 1019(5)(C)(i). (Section 348(f)(2) applies when the conversion was in bad faith) So the debtor’s attorney did nothing wrong when he or she did not file anything listing the lawsuit when the case was converted.

    • David, thank you for your comments. From the opinion, it appears that the parties and courts assumed that there was a disclosure obligation, and the issue with regard to lack of disclosure in this case was undisputed (¶¶3, 5). I would be interested to know if the argument that you are making – that this was a post-petition asset not subject to disclosure in the converted case – was raised in the case.

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