Consumer Bankruptcy Journal Winter 2018 - Page 23

Disclosure of Post-Petition Claims order a schedule to be amended. 11 U.S.C. § 350(b) allows a bankruptcy case to be reopened to administer assets, accord relief to the debtor, or for other cause. See also Bankruptcy Rule 5010 on reopening cases. Other courts agree and have determined that judicial estoppel should not be automatically applied when a claim was not disclosed on an amended schedule. Slater v. United States Steel Corp., 27 Fla. L. Weekly Fed. C 190 (U.S. 11th Cir. 2017) (“… whether a plaintiff intended to make a mockery of the judicial system requires consideration of more than just whether the plaintiff failed to disclose a claim.”) (overruling Burnes and Barger above); Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 548 (7th Cir. 2014) (reversing application of judicial estoppel because the civil defendant “needed to show more than an initial nondisclosure on a bankruptcy schedule”); Ah Quin v. Cty. of Kauai Dep’t. of Transp., 733 F.3d 267, 276 (9th Cir. 2013) (rejecting a “presumption of deceit” where “the plaintiff-debtor has reopened the bankruptcy proceedings and has corrected the initial filing error”); Eubanks v. CBSK Fin. Grp., Inc., 385 F.3d 894, 899 (6th Cir. 2004) (reversing district court’s application of judicial estoppel where plaintiffs omitted the claim because defendant “provide[d] no additional evidence that Plaintiffs demonstrated fraudulent intentions towards the court”). Practice suggestions: So, back to the irate phone call from your client. First gather information from your client including the following: (1) the date the injury occurred, (2) a description of the injury, (3) the name of the court and the case number of the lawsuit, (4) the name, address and telephone number of debtor’s attorney, (5) the names of other parties (and their attorneys) to the lawsuit (e.g. other plaintiffs, defendants etc.) and (6) the procedural status of the lawsuit (e.g. pending motion to dismiss). Your client certainly has defenses to the Defendant’s motion to dismiss, but I recommend disclosing the information immediately to the bankruptcy court and the trustee. If the injury occurred prior to filing the client’s bankruptcy petition, prepare an amended B and statement of financial affairs to disclose the claim. If the injury occurred after filing then prepare an amended schedule B. Send the documents for your client’s approval and signature. File the documents amendments and serve pursuant to Bankruptcy Rule 1009(a). In addition, it is recommended that you serve the amendments on all creditors, the trustee and the United States Trustee along with all parties to the pending lawsuit. Contact your client and update them with what has been done and ask their counsel to call you if they have any questions. If the motion to dismiss is not resolved by filing the amendments it is recommended you contact Tara Twomey Ѽ͍́ѡȸeԁ)ͼ݅ЁѼхЁȁɅѥ)ɅɥȁѼЁѡȁ٥)䁍̰ݽɭ́ͅѥ)̰ɥх̰Ʌ)̰ȁѕݥ̰ь$)չх$ЁݕѼ)䁵ɕٕɽѡ͔)䁽ѡȁ́ȁɥ́չѥ)э䁅ѽɹ䁡́ɽٕЁ)ɥѥ$չхѡЁɕٕ)չȁѡ͔́䁡ٔѼ)ѼѡэѼɕ͔ѡ)͉͕ЁѼ䁍ɕѽ̸ɔ)Ѽ͍͔ѡ́ɵѥѼ)ѽɹ䁵ɕձЁ͵ͅ)э䁅ȁɥɽ͕ѥ)eԁ݅ЁѼЁѡ́Յ)ȁȁѥձȁɥ͑ѥ)ѼѡЁѡɹٕ)ѡхх她ѽՍ)ݥѠԸ)ѡ՝%ԁЁѡ)eЁЁ͍͔ѡ)5䁥Օ́ɔɕͽٕͥ)͍ͥѡɵѥ)QɽѕЁ͕ȁ́)ѡɔ٥͔ȁ́Ѽѥ)ԁѡȁͥՅѥ)ѡ䁽х䁹܁͕̼)̸$Յ䁡ٔ䁍С̤)ͥݱаɥѡ)ѵЁѼɕ٥܁ͥѡ)эѥѥѡЁՑ́ѡ)ݥՅ)%ѥ$չхѡЁ$)եɔ䁹܁͕́ݡ) ́ э䁥́ѥ$)ѕɕЁѡ́Ѽ䁅ѽɹ)ݡݥɕɔMձ)ѼЁѡЁ͕Ё́ѕѥمՔ)丁Q͔ɔ͕́Ց)ɔЁѕѼ䁱ե̰ͽ)9ѥͽѥ յȁ эѽɹ̀$($($)]ѕȀ) =9MU5H 9-IUAQ d)=UI90(