Tag: judicial estoppel

Bankr. E.D.N.C.: Ohnmacht v. Commercial Credit Group, Inc. – Subject Matter Jurisdiction to Determine Non-Bankruptcy Causes of Action Related to Discharge Violation


The Ohnmachts, having completed their Chapter 11 plan and received a discharge, sent a demand letter to Commercial Credit Group demanding that the judgment against them be cancelled. When CCG declined, they re-opened their bankruptcy and brought an adversary proceeding asserting breach of contract, violation of N.C. Gen. Stat. § 1-239 and § 75-1.1 et seq, intentional and negligent infliction of emotional distress, negligence and seeking relief under the Federal Declaratory Judgment Act (“FDJA”), 28 U.S.C. § 2201(a). They also included in a Motion for Contempt and Sanctions for alleged violation of provisions the preference judgment, the plan, confirmation order, and the discharge injunction.… Read More

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Bankr.  E.D.N.C.: In re Matusak- Timeliness of Motion to Modify; Judicial Estoppel and Unanticipated Changes in Circumstances; Extension of Plan LengthBankr.  E.D.N.C.: In re Matusak- Timeliness of Motion to Modify; Judicial Estoppel and Unanticipated Changes in Circumstances; Extension of Plan Length


Mr.  Matusak’s plan provided, obviously among things, that he was required to produce  verified updated Schedules of income and expenses during the 36 months Applicable Commitment Period of his plan whenever such were requested by the Chapter 13 Trustee or Ms.  Brown,  his ex-wife and a creditor.  Based on that financial information, Ms.  Brown filed a motion to modify Mr.  Matusak’s plan in November 2016, seeking both an increase in the monthly payment and an extension of the plan from 36 to 60 months.

Prior to the hearing on the Motion to Modify in April 2017, Mr.  Matusak made the 36th payment under the original confirmed plan and argued that, the bankruptcy court no longer had authority to modify his plan as 11 U.S.C.… Read More

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Bankr. M.D.N.C.: NC & VA Warranty v. Fidelity Bank- Judicial Notice and Judicial Estoppel


The bankruptcy court in this opinion begins by distinguishing between the judicial notice that a court may take of pleadings and proceedings in other courts and judicial estoppel. The bankruptcy court held that while a court cannot take judicial notice of the truth of facts alleged in those pleadings, it can nonetheless take judicial notice that such allegations were made. From the fact that such allegations had been made, the bankruptcy court then turned to determine whether such allegations judicially estopped a party in later proceedings. The requirements for judicial estoppel are:

1. The party sought to be estopped must be seeking to adopt a factual (opposed to legal) position that is inconsistent with a stance taken in prior litigation;
2.… Read More

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N.C. Ct. of Appeals: Wells Fargo Bank, N.A., v. Arlington Hills of Mint Hill, L.L.C.- Offset Defense to Foreclosure Deficiency not Available to Guarantor


In November of 2005, Arlington Hills executed a promissory note and Deed of Trust for $596,345, with such currently being held by Wells Fargo. Thereafter, John & Beverly Cobb, Max & Christy Smith, and Mark Carpenter executed personally guarantees for the note in order to obtain renewals and modifications of the terms. When Arlington Hills defaulted the balance on the note was nearly $2 million, Wells Fargo initiated both a foreclosure and suit against both Arlington Hills and the several guarantors. Carpenter answered this suit, including the affirmative defense of offset pursuant to N.C.G.S. § 45-21.36, but denied any knowledge as to the value of the property.… Read More

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N.C. Court of Appeals: T-WOL Acquisition Co., Inc. v. ECDG South, L.L.C.: Judicial Estoppel following Failure to Disclose Asset in Bankruptcy


Plaintiff Harris did not disclose any ownership interest in T-WOL, which had been incorporated in 2000,  when he filed bankruptcy in 2001.  Following suit in 2009, the Defendants moved for summary judgment arguing that Plaintiff Harris should be judicially estopped from asserting ownership in T-WOL.

The purpose of judicial estoppel is “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.”  Whitacre P’Ship v.  Biosignia Inc., 358 N.C. 1 (2004)  Relying on Bioletti v.  Bioletti, 204 N.C. App.  270 (2010), the Court of Appeals refused to allow Plaintiff Harris “to derive an unfair advantage from his inconsistent positions” by first failing to disclose an asset in a bankruptcy (regardless of “the effect that any understatement [of assets] may have … on the out come of [the] bankruptcy proceeding” Bioletti at 278-279) and then asserting such ownership in later litigation.… Read More

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