 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Nollie v. Jim Wilson & Associates3/17/2000
ppel should be applied to bar Nollie's suit; however, we note one important distinction. The debtor in Luna had sued Dominion Bank -- a party that he had named as a creditor in the bankruptcy proceeding. The court in Griner, also distinguishing the facts of that case from the facts in Luna, noted that " f the creditor knew about Luna's claim against it, the creditor may have been able to offset the claims or take some other action in Luna's bankruptcy case that was not available because it was unaware that the bankruptcy estate included a claim against it." In re Griner, 240 B.R. at 438. The Griner court then noted that the defendants in the debtor's lawsuit were not creditors of the debtor and were not prejudiced by the debtor's failure to disclose the potential lawsuit against them as an asset.
Nollie, like the debtors in In re Griner and Jinright, has not sued someone that she also had listed as a creditor in the bankruptcy proceeding. In its motion for a summary judgment, Wilson seemed to argue that the doctrine of judicial estoppel applied to bar Nollie's action simply because she had failed to disclose a potential lawsuit as an asset during the bankruptcy proceeding. Our supreme court held in Jinright that mere knowledge of a potential lawsuit, without more, is insufficient to invoke the doctrine of judicial estoppel and that a party seeking to apply the doctrine must prove that it was prejudiced by the debtor's failure to disclose the potential lawsuit as an asset. We conclude that Wilson has failed to show in any manner how it was prejudiced by Nollie's failure to disclose the potential lawsuit as an asset.
We further note that Nollie testified in her affidavit that she was 50 years old, had no legal training, and that the only post-secondary education that she has had is in the area of secretarial and clerical training. Nollie stated that after being turned away by several attorneys regarding her claim and after receiving the letter from Wilson's insurer denying liability she concluded that she did not have a lawsuit that could be considered an asset in her bankruptcy proceeding. Whether one knew or should have known about causes of action that should be disclosed as assets in bankruptcy proceedings are questions of fact to be decided by the trier of fact. Jinright, supra; Underwood, supra. We conclude that Nollie presented substantial evidence creating a question of fact as to whether she knew or should have known that she had a cause of action against Wilson that she should have disclosed during her bankruptcy proceeding.
Accordingly, the summary judgment entered in favor of Wilson is reversed and the case is remanded for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Robertson, P.J., and Monroe and Thompson, JJ., concur.
Crawley, J., concurs in the result.
|