05/13/2011 – Motion to Dismiss filed in the Adversary Proceedings by BNC Mortgage, Inc et al before Judge Kaufman in the Central District of California (San Fernando Valley). Lender moves to dismiss multiple claims made by the Debtor arising out of a real estate loan and foreclosure. A generally unremarkable motion except for the argument that “Plaintiff failed to identify any of his purported claims against Defendants in his sworn bankruptcy schedules and/or statements. Based upon the foregoing, Plaintiff is judicially estopped from pursuing all of the claims alleged in the Complaint. ”
In support of the judicial estoppel argument, the Defendant states:
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, 783 (9th Cir. 2001) (citing Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01 (9th Cir. 1996); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)). In the context of a bankruptcy proceeding, a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements. Id. (citations omitted). Here, Plaintiff failed to identify any of his purported claims against Defendants in his sworn bankruptcy schedules and/or statements. Based upon the foregoing, Plaintiff is judicially estopped from pursuing all of the claims alleged in the Complaint.