District Court (Cal.) Finds Plaintiff’s Failure to Schedule Claim against Bank in Plaintiff’s Previous Chapter 13 Schedule Estopps Plaintiff from Pursuing the Claim Later

In Becker v. Wells Fargo Bank, Nat. Ass’n, 2012 WL 5187792 (E.D.Cal. 2012), Judge Shubb found that a plaintiff’s failure to schedule his claim (wrongful foreclosure) against the Bank in his previous Chapter 13 bankruptcy case estopped him from pursuing the claim in the District Court.

Plaintiff filed a voluntary Chapter 13 petition on July 8, 2011. (RJN Ex. 9.) Plaintiff filed his verified bankruptcy schedules on July 22, 2011, (id. Ex. 11), and an amended bankruptcy plan on October 27, 2011, (id. Ex. 12). The claims before the court in plaintiff’s FAC were not listed as a potential asset in either of these documents, and no other amended schedules or plans were filed, (see id. Ex. 10), before the bankruptcy court confirmed the amended plan on July 7, 2012, (id. Ex. 14.). Having consulted the electronic docket for the bankruptcy proceeding, it appears to the court that the proceeding is ongoing. ¶ . . .A plaintiff who fails to fulfill this duty to inform the bankruptcy court of his claims risks having those claims barred by judicial estoppel. Hamilton, 270 F.3d at 783 (“In the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements.”) ¶ The facts and events giving rise to plaintiff’s claims in the present action allegedly occurred by October 17, 2011, when defendant Wells Fargo conducted a Trustee’s sale of the Property. (FAC ¶ 18; RJN Ex. 8.) Plaintiff filed his verified bankruptcy schedules on July 22, 2011, (RJN Ex. 11), and an amended bankruptcy plan on October 27, 2011, (id. Ex. 12). The bankruptcy court confirmed the amended plan on July 7, 2012. (Id. Ex. 14.) ¶  By failing to list his potential claims in the bankruptcy schedules, and now attempting to sue under these same causes of action, plaintiff has adopted a “clearly inconsistent position[ ].” Hamilton, 270 F.3d at 784. Plaintiff contends that “he did not perceive of the existence of certain claims at the time of filing his Chapter 13 bankruptcy.” (Pl.’s Mem. in Opp’n to Mot. to Dismiss at 1:24–2:1.) However, at no time before the bankruptcy court issued its July 7, 2012, order confirming plaintiff’s First Amended Chapter 13 Plan did plaintiff amend his schedules to include these claims, despite his duty to do so once he became aware of his claims. (See Docket No. 10.) Plaintiff has not alleged that he was unaware of his claims before the bankruptcy court approved his plan and he has not filed amended schedules, despite bringing this action. Balthrope, 2010 WL 430840, at *3 (“[R]egardless of whether plaintiff amended the petition without including the cause of action or whether he simply failed to amend once aware of the claim, the continuing duty to disclose, which is necessary to the integrity of the bankruptcy system, prevents him from proceeding on” these claims.). ¶  The second factor also counsels in favor of judicial estoppel. A bankruptcy court accepts a position when it approves the debtor’s bankruptcy plan. See id. at *2 (“The bankruptcy court accepted plaintiff’s assertion that he did not have any causes of action when it granted an order modifying plaintiff’s Chapter 13 plan ….”); see also Hamilton, 270 F.3d at 784 (explaining that judicial acceptance does not require discharge of debt, but the court “may ‘accept’ the debtor’s assertions by relying on the debtor’s nondis-closure of potential claims in many other ways”); Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir.1992) (confirmation of a plan constituted sufficient acceptance so as to permit judicial estoppel). The bankruptcy court accepted plaintiff’s earlier assertion that he had no claims when it con-firmed his amended Chapter 13 plan. Plaintiff’s failure to disclose not only tainted the bankruptcy court’s decision to approve the plan, In re Coastal Plains, Inc., 179 F.3d at 208, but a debtor’s bankruptcy schedules must also be as accurate as possible because creditors rely on the information provided therein. Hamilton, 270 F.3d at 785. ¶  Finally, plaintiff would receive an unfair advantage by pursuing these claims against the defend-ants after failing to disclose them in his bankruptcy proceedings. Plaintiff has received the benefit of an automatic stay. 11 U.S.C. § 362(a); see Hamilton, 270 F.3d at 785 (finding unfair advantage where plaintiff enjoyed “the benefit of both an automatic stay and a discharge of debt in his Chapter 7 bankruptcy proceedings”); HPG Corp. v. Aurora Loan Servs., LLC, 436 B.R. 569, 578 (E.D.Cal.2010) (finding it sufficient for the application of judicial estoppel that plaintiffs received the benefit of automatic stays, even though bankruptcy cases were dismissed). In so doing, he “sought bankruptcy protection while subverting the bankruptcy process by nondisclosure.” Id. Accordingly, it is appropriate to “invoke judicial estoppel to protect the integrity of the bankruptcy process .” FN2 Hamilton, 270 F.3d at 785; see also Ash v. OneWest Bank, FSB, No. Civ. S–09–974 FCD DAD, 2010 WL 2231972, at *3 (E.D. Cal. June 3, 2010) (estopping debtor in Chapter 13 bankruptcy from bringing Truth in Lending Act (“TILA”) claim after failing to list TILA claim in bankruptcy schedule); Flores v. GMAC Mortg., No. Civ. 2:09–CV–01216 GEB GGH, 2010 WL 582115, *2–*4 (E.D.Cal. Feb. 11, 2010) (applying judicial estoppel to preclude TILA claim by plaintiff because claim not disclosed in bankruptcy schedules).