Document Type

Research Memorandum

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Many different tactics are used by both plaintiffs and defendants to try and gain an upper hand in court proceedings. One particular scheme occurs when parties take an inconsistent position with one they successfully asserted in an earlier proceeding. The idea of the scheme is to be successful initially and then to contradict the position previously taken based on the need of the moment. To combat that particular ploy, the courts developed the doctrine of judicial estoppel.

Judicial estoppel generally refers to “judicially-imposed limitations on litigants who would assert two irreconcilable positions in successive litigations.” The purpose of judicial estoppel is to “protect the integrity of the judicial process by prohibiting parties from deliberately changing [their] positions according to the exigencies of the moment.” Judicial estoppel differs from other types of preclusion in that the doctrine of judicial estoppel focuses on a party’s assertions in relation to the courts rather than in relation to the other litigants.

Judicial estoppel is especially important in bankruptcy cases. In the bankruptcy context, if a debtor omits a pending lawsuit from his or her bankruptcy schedules and then obtains a discharge, judicial estoppel may bar the debtor from continuing the pending lawsuit. Although one of the primary goals of bankruptcy law is to allow a debtor to obtain a fresh start, the debtor must comply with his obligations under the Bankruptcy Code. Full disclosure is essential to the functioning of the bankruptcy system. Under section 521(1) of the Bankruptcy Code, a debtor is required to file a “schedule of assets and liabilities . . . and a statement of the debtor’s financial affairs.” Section 541 of the Bankruptcy Code provides that property of the estate in bankruptcy specifically includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” The language of these statutes “impose[s] upon debtors an express, affirmative duty to disclose all assets, including contingent and unliquidated claims.” By filling out the bankruptcy schedule, the debtor is implicitly stating that he or she owns no other assets.


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