The Fifth Circuit has added a new decision to its judicial estoppel jurisprudence, holding that a creditor that submitted claims in different amounts in successive cases was not estopped. While it may seem that the court is applying the estoppel doctrine in an uneven manner, penalizing debtors but not creditors, the decision faithfully follows the elements laid out by the court. Wells Fargo Bank, N.A. v. Oparaji (Matter of Oparaji), No. 11-20871 (5th Cir. 10/5/12), which can be found here.
The Debtor Titus Chinedu Oparaji filed a chapter 13 proceeding on September 2, 2004 (“First Case”). During the First Case, he fell behind on his mortgage payments to Wells Fargo. Over time, Wells Fargo filed several amended claims and the Debtor filed several modified plans. The amended claims filed by Wells Fargo understated the amount of the post-petition arrearages. When the Debtor failed to complete his plan payments within five years, the First Case was dismissed.
After the First Case was dismissed, the Debtor continued to miss payments to Wells Fargo. On February 1, 2010, the Debtor filed his second chapter 13 case (“Second Case”). By this time, the arrearage owed to Wells Fargo had grown to $86,003.25. The Debtor argued that based on the claims filed in the First Case that the arrearage could not possibly be that high. The Bankruptcy Court found that Wells Fargo was bound by the claims filed in the First Case under the doctrine of judicial estoppel and the District Court affirmed.
The Fifth Circuit reversed, finding that Wells Fargo had not “asserted a legally inconsistent position that was accepted by the Bankruptcy Court.” Opinion, p. 6.
The elements of judicial estoppel are: (1) a party asserts a legal position that is “plainly inconsistent” with the position taken in another case; (2) the court in the other case accepted the party’s original position; and (3) the inconsistent positions were not taken inadvertently.
The Court found that a creditor who files a post-petition claim in one case is not estopped from asserting a higher claim in a subsequent case. Under section 1305(a), a creditor may file a post-petition claim but is not required to. This contrasts with the common scenario where a debtor omits an asset. While a debtor must list all assets in its schedules, the creditor is not under a duty to amend its proof of claim to include post-petition arrearages.
The Debtor argued that while Wells Fargo was not required to file a post-petition claim, that once it did so, it was required to include all post-petition amounts. The Fifth Circuit distinguished the Oparaji case from In re Burford, 231 B.R. 913 (N.D. Tex. 1999). In Burford, the confirmation order required the creditor to create a payment schedule that would “fully retire the debt.” However, in this case, the creditor submitted a claim without expressly representing that there were no additional amounts owing.
Because Wells Fargo never asserted that the amount contained in its post-petition claim constituted all the amounts owed, the Fifth Circuit found that it had not asserted inconsistent positions. As a result, judicial estoppel did not apply. The Court went further and found that even if Wells Fargo had asserted inconsistent positions, the dismissal of the First Case meant that the parties were returned to their position status quo ante.
What It Means
Judicial estoppel is meant to prevent parties from gaming the system. While, on the surface, it might appear that Wells Fargo took inconsistent positions, its inconsistency was not legally significant. Wells Fargo’s only fault was that they did not assert their rights in the First Case as aggressively as they could have. Had the Debtor completed its plan in the First Case, the parties and the Court would have had a difficult time sorting out which post-petition defaults were included in the plan and which ones were not. Had the Debtor filed an “all current” motion at the conclusion of its plan and obtained an order, it could have bound Wells Fargo. However, neither one of these occurred. The Debtor did not complete its plan and it did not obtain a determination that it was current on its mortgage.
As a general rule, a dismissed case should rarely, if ever, give rise to judicial estoppel. By definition, a dismissed case is one in which no party obtains relief (although the debtor enjoyed the benefits of the automatic stay for a period of time). If a party does not obtain relief, then it is hard to say that the court accepted the party’s position in any meaningful respect. The real benefit of this case may be for debtors who omit a creditor or an asset in an initial case and then accurately disclose it in a subsequent case. In that instance, Oparaji should be good precedent that judicial estoppel will not apply.