Courts of various jurisdictions have held that a debtor's assertion of legal claims not disclosed in earlier bankruptcy proceedings constitutes an assumption of inconsistent positions. Tippins, 221 B.R. at 26-27; Bertrand v. Handley, 646 So.2d 16, 19 (Ala. 1994); Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917, 918 (Ala. 1993); Underwood v. First Franklin Financial Corp., 710 So.2d 424, 426 (Ala.Civ.App. 1997), reh'g denied, cert. denied (1998); see Payless Wholesale Distributors, Inc. v. Alberto Culver, 989 F.2d 570, 571 (1st Cir. 1993), cert. denied, 510 U.S. 931, 114 S.Ct. 344, 126 L.Ed.2d 309 (1993); Oneida, 848 F.2d at 419; Brassfield, 953 F. Supp. at 1432-33. This holding stems from the requirement that a debtor seeking the shelter provided by federal bankruptcy laws disclose all legal or equitable property interests to a bankruptcy court.
This Court also upheld a summary judgment for a noncreditor-defendant in Bertrand v. Handley, 646 So.2d 16 (Ala. 1994). In Bertrand a tenant sued, among others, her landlord for damages arising out of injuries sustained when she fell down an allegedly defective ramp.
In Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917, 918 (Ala. 1993), we noted that "[a] debtor in [a bankruptcy proceeding] must disclose any litigation likely to arise in a nonbankruptcy [context]." In Bertrand v. Handley, 646 So.2d 16, 18 (Ala. 1994), we stated that in Luna we had held that the doctrine of judicial estoppel applies to estop a debtor from suing on a claim where the debtor "has failed to disclose the claim in an earlier bankruptcy proceeding." We applied that holding in Bertrand.
In the circuit court, Alpha moved for a summary judgment, contending (1) that the doctrine of judicial estoppel applied to bar Battle's claim against it, and (2) that Battle lacked "standing" to assert her claim. In support, Alpha cited the cases of Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 197 (Ala. 1993), and Bertrand v. Handley, 646 So.2d 16 (Ala. 1994), and attached pertinent documents it had obtained from the bankruptcy court. Battle filed a response in opposition. After a hearing, the circuit court entered a judgment in favor of Alpha on the bases of judicial estoppel and lack of "standing," and denied Battle's subsequent postjudgment motion.
In Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917, 918 (Ala. 1993), we noted that `[a] debtor in [a bankruptcy proceeding] must disclose any litigation likely to arise in a nonbankruptcy [context].' In Bertrand v. Handley, 646 So.2d 16, 18 (Ala. 1994), we stated that in Luna we had `held that the doctrine of judicial estoppel applies to estop a debtor from suing on a claim where the debtor has failed to disclose the claim in an earlier bankruptcy proceeding.' We applied that holding in Bertrand.
"Luna, 631 So.2d at 918. See also Bertrand v. Handley, 646 So.2d 16 (Ala. 1994). In this case, it is undisputed that Mrs. Saunders met with two attorneys to discuss whether Dr. Hash's surgery might have caused the disabilities Mr. Saunders subsequently experienced.
Courts in Alabama have repeatedly held that a plaintiff is judicially estopped from bringing a cause of action in state court that was not timely listed in his bankruptcy proceedings as at least a contingent asset. Bertrand v. Handley, 646 So.2d 16, 18 (Ala. 1994); Luna v. Dominion Bank of MiddleTennessee, Inc., 631 So.2d 917 (Ala. 1993). In each of these cases, the court granted a noncreditor defendant a summary judgment based upon the debtor-plaintiff's previous failure to list the cause of action as an asset in the bankruptcy schedules.
" Luna, 631 [So.2d] at 919. "See also, Bertrand v. Handley, 646 So.2d 16 (Ala. 1994) (tenant's failure to disclose her default judgment against landlord as an asset in bankruptcy estopped her from asserting her claim against the landlord once she was discharged from bankruptcy.). "Although both Luna and Bertrand involved Chapter 7 bankruptcies, the same rule applies to Chapter 13 bankruptcies.
Selma Foundry Supply Co. v. Peoples Bank Trust Co., 698 So.2d 844, 846 (Ala. 1992), quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988). See also Bertrand v. Handley, 646 So.2d 16 (Ala. 1994); Luna v. Dominion bank of Middle Tennessee, Inc., 631 So.2d 917 (Ala. 1993); Bracy v. Scott, 589 So.2d 145 (Ala. 1991); Russell v. Russell, 404 So.2d 662 (Ala. 1981). Because Terminix took the position that only the contract claim was subject to arbitration, and because this Court relied principally upon that position to overturn the circuit court's finding of a waiver, Terminix is judicially estopped from taking the position that all of the claims in the Jacksons' complaint are subject to arbitration.
Courts in Alabama have held that a plaintiff is judicially estopped from bringing a cause of action in state court that was not timely listed in his bankruptcy proceedings as at least a contingent asset. Bertrand v. Handley, 646 So.2d 16 (Ala. 1994); Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917 (Ala. 1993). In Bertrand and Luna, the supreme court held that a noncreditor defendant was entitled to a summary judgment based upon the debtor-plaintiff's previous failure to list the cause of action as an asset in the bankruptcy schedules.