In an alternative argument, Debtors suggest that they do not need to assume or reject the franchise agreements; instead, the agreements may “ride through” the bankruptcy case unaffected. In support, Debtors cite In re JZ, LLC, 357 B.R. 816 (Bankr.D.Idaho 2006), which reads 11 U.S.C. § 365 as permissive—i.e., a trustee “may assume or reject any executory contract or unexpired lease of the debtor”—and “the failure to assume or reject an executory contract does not automatically result in an assumption or rejection of the contract.” In re JZ, LLC, 357 B.R. at 820.

See e.g., In re JZ, LLC, 357 B.R. 816, 820-22 (Bankr. D. Idaho 2006), affirmed 371 B.R. 412 (9th Cir. BAP 2007) (Fifteen year licensing agreement for manufacture and sale of grinder machines that chapter 11 debtor neither assumed or rejected, nor disclosed as executory contract on its bankruptcy schedules, "rode through" bankruptcy case and interests of both parties to the contract were preserved.); In re Hernandez, 287 B.R. 795, 799-800 (Bankr. D. Ariz. 2002) (discussing origins and history of "ride-through" doctrine); In re Polysat, Inc., 152 B.R. 886, 890 (Bankr. E.D. Pa. 1993) (executory contract that is neither assumed nor rejected will be unaffected by the bankruptcy filing).

The debtor has an affirmative obligation to schedule all executory contracts. BR 1007(b)(1)(C); see generallyIn re JZ, LLC , 357 B.R. 816, 822 (Bankr. D. Id. 2006) ("every debtor has ‘a duty to prepare schedules carefully, completely, and accurately.’ ").

Causes of action constitute property of the estate under § 541(a)(1) and are assets that must be formally listed. In re JZ, LLC, 357 B.R. 816, 823 (Bankr. D. Idaho 2006). Based on Davies' submissions in the State Court Action and this Court, it appears each of the above itemized causes of action against Becker arose prior to Davies' November 30, 2015 petition date.

"Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position." Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001); An-Tze Cheng v. K&S Diversified Invs, Inc. (In re An-Tze Cheng), 308 B.R. 448, 452 (9th Cir. BAP 2004); In re JZ, LLC, 357 B.R. 816, 824 (Bankr. D. Idaho 2006). This Court invokes judicial estoppel not only to prevent a party from gaining an advantage by taking inconsistent positions, but also because of "general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings," and to "protect against a litigant playing fast and loose with the courts."

This doctrine barring an untimely and unfair change in legal strategy has been previously recognized and applied by this Court. See In re JZ, LLC, 357 B.R. 816, 824, 06.4 I.B.C.R. 110, 113 (Bankr. D. Idaho 2006), aff'd 371 B.R. 412 (9th Cir. BAP 2007); In re Pich, 253 B.R. 562, 00.4 I.B.C.R. 183 (Bankr. D. Idaho 2000). For example, in Pich, this Court estopped a debtor from claiming a homestead exemption in a property because the debtor had previously represented that no residential use of that property was intended.

"Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position." In re JZ, LLC, 357 B.R. 816, 824, 06.4 I.B.C.R. 110, 113 (Bankr.D.Idaho 2006), aff'd, 371 B.R. 412 (9th Cir.BAP2007) (addressing judicial estoppel in the bankruptcy context). The Court granted the request to reopen the case, caused a trustee to be reappointed, see Fed. R. Bankr.P. 5010, and Debtor thereafter amended his SOFA to disclose the suit on the Claim as "pending."

The "may" assume or reject language in both § 365(d)(2) and § 1123(b)(2) has been recently construed as permissive, not mandatory. Diamond Z Trailer, Inc. v. JZ, L.L.C. (In re JZ, L.L.C.), 2007 WL 1954035 at *8 (9th Cir. BAP June 18, 2007), aff'g In re JZ, LLC, 357 B.R. 816 (Bankr. D. Idaho 2006). From the inception of the case in January 2006 to the confirmation hearing in May 2007, DJS did not seek to advance this issue.