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Johnson v. Si-Cor8/14/2001
s of his bankruptcy. See Farmer v. Taco Bell Corp., 242 B.R. 435 (W.D. Tenn. 1999).
McDonalds also argues that Mr. Johnson was obligated to disclose his claim against McDonalds when his Chapter 13 case was converted to Chapter 7. The debtor's obligation in this regard is governed by Fed. R. Bankr. P. 1019(5)(B) and (C). Upon conversion from Chapter 13 to Chapter 7, the rule requires the debtor to file a schedule of unpaid debts incurred after the filing. Fed. R. Bankr. P. 1019(5)(B)(i). If the conversion occurs after the confirmation of the debtor's Chapter 13 plan, the rule requires the debtor to file other schedules containing additional information, but it does not require the debtor to disclose after-acquired property, unless the debtor's case was converted in bad faith from Chapter 13 to Chapter 7. Fed. R. Bankr. P. 1019(5)(C)(i); 11 U.S.C.A. sec. 348(f)(2).
The dispositive issue is whether Mr. Johnson made a representation regarding his pre-petition claim against McDonalds that either benefited him or that the bankruptcy court accepted. We infer from the record that Mr. Johnson confirmed a Chapter 13 wage earner plan, without disclosing his post-petition claim against McDonalds. Mr. Johnson's Chapter 13 wage earner plan and the materials submitted to the court in support of the confirmation of the plan are not part of the record before us. Consequently, we do not know what impact, if any, Mr. Johnson's failure to disclose the personal injury asset had upon the Chapter 13 confirmation process. There is no evidence that when the bankruptcy court confirmed the Chapter 13 plan, it somehow accepted a position that was inconsistent with Mr. Johnson pursuing his personal injury lawsuit against McDonalds. Likewise, there is no evidence that Mr. Johnson somehow received a benefit by not disclosing his claim against McDonalds.
After Mr. Johnson's Chapter 13 case was converted to Chapter 7, the case was closed as a 'no asset' case. Mr. Johnson received a Chapter 7 discharge. The existence of a post-petition personal injury claim, which would not have been property of the Chapter 7 estate or available for distribution to unsecured creditors, would not have been relevant to the bankruptcy court's decision either to close the case or to grant Mr. Johnson a discharge. There is no evidence in this record that in closing the case, the bankruptcy court accepted a position that is inconsistent with Mr. Johnson's pursuit of his lawsuit against McDonalds. Likewise, there is no evidence that the nondisclosure of the claim against McDonalds in Mr. Johnson's bankruptcy case benefited Mr. Johnson.
We hold that Mr. Johnson is not precluded from pursuing his lawsuit against McDonalds by reason of judicial estoppel. The order of summary judgment is reversed. In view of our disposition, we do not address Mr. Johnson's remaining assignments of error.
Kurtz, C.J.
WE CONCUR:
Brown, J.
Kato, J.
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