IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TAMMY E. BOLTON, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO.

) 04-0769-BH-L

AMERIQUEST MORTGAGE )

COMPANY, INC., et al., )

)

Defendants. )

ORDER

This action is now before the Court on defendant’s respective motions (Docs. 36,

38 and 47) to dismiss which are predicated upon plaintiff’s failure to list the instant lawsuit

as a potential asset in her Chapter 13 bankruptcy schedules and the resultant application of

judicial estoppel. Upon consideration of the motion, plaintiff’s response in opposition

thereto (Doc. 54), which is entitled a “motion to uphold plaintiff’s amended complaint,”

defendants’ respective reply briefs (Docs. 55 and 56), and all other pertinent portions of

the record, the Court concludes that the motions to dismiss are due to be granted and

plaintiff’s request for additional time to obtain substitute counsel is due to be denied.

The Court agrees that plaintiff has failed to refute the binding precedent cited by the

defendants to the effect that her omission of this lawsuit from her bankruptcy petition when

that petition was filed bars plaintiff from now pursuing this litigation. It is irrelevant that

plaintiff “timely informed” her bankruptcy counsel about this lawsuit or even that her

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bankruptcy petition has since been amended to reflect this lawsuit. In Barger v. City of

Cartersville, the Eleventh Circuit clearly held:

[J]udicial estoppel bars a plaintiff from asserting claims previously

undisclosed to the bankruptcy court where the plaintiff both knew

about the undisclosed claims and had a motive to conceal them from

the bankruptcy court.

348 F.3d 1289, 1296 (11th Cir. 2003), quoting, Burnes v. Pemco Aeroplex, Inc., 291 F.3d

1282, 1291 (11th Cir.2002). The Eleventh Circuit also rejected the debtor’s attempt to

amend the bankruptcy petition to avoid the application of judicial estoppel:

Allowing [a debtor] to back-up, re-open the bankruptcy case, and

amend his bankruptcy filings, only after his omission has been

challenged by an adversary, suggests that a debtor should consider

disclosing potential assets only if he is caught concealing them. This

so-called remedy would only diminish the necessary incentive to

provide the bankruptcy court with a truthful disclosure of the debtor's

assets.

Id. at 1297. The United States Bankruptcy Court for the Southern District of Alabama has

expressly followed the Eleventh Circuit’s binding precedent and refused to permit a

Chapter 13 debtor to pursue his claims even when the debtor’s omission of the lawsuit “was

a genuine error.” Reniewicz v. Price Williams Associates, Inc., Case No. 02-15986

(Bankr. S.D. Ala. Sept. 19. 2003)(attached as Exh. “D” to Heritage’s Motion to Dismiss). 

As applied to the case at bar, it is undisputed that plaintiff omitted the lawsuit from her

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1Plaintiff has proffered no evidence to substantiate her contention that the lawsuit has “now

been included in Bankruptcy Petition # 05-10192.”

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schedules in her Chapter 13 Bankruptcy case and it is irrelevant that she either timely

informed her bankruptcy counsel or may have sought recently to amend her schedules.1

For the reasons stated above, it is ORDERED that plaintiff’s request for additional

time to retain substitute counsel be and is hereby DENIED and defendants’ respective

motions to dismiss (Doc. 36, 38 and 47) be and are hereby GRANTED in that this action

be and is hereby DISMISSED with prejudice.

DONE this 18th day of May, 2005.

 s/ W. B. Hand 

SENIOR DISTRICT JUDGE

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