Emory Bankruptcy Developments Journal


The majority of courts take the position that, if a plaintiff-debtor knew of a potential or pending lawsuit but failed to list it in the bankruptcy case, the plaintiff-debtor should be categorically estopped from pursuing the cause of action against the defendant. However, judicial estoppel produces an inequitable result where the plaintiff-debtor omitted a lawsuit from the bankruptcy case because of a mistake. In that case, the alleged wrongdoer prevails regardless of the strength of the plaintiff's claim or the plaintiff's culpability excluding the potential or pending lawsuit from the bankruptcy filings. This Comment argues that using a subjective inquiry to determine when to invoke judicial estoppel better serves the objectives of bankruptcy law and maintains the integrity of the judicial process. This subjective inquiry focuses on five factors to determine whether the debtor's omission was the result of inadvertence or mistake.