Failure to list pending FDCPA case in subsequent bankruptcy filing dooms claim

Plaintiff incurred a debt on a Target National Bank credit card which transferred plaintiff’s debt to Defendant for collection.  Plaintiff filed a lawsuit alleging violations of the FDCPA for conduct in collecting this debt.  Approximately 6 months after filing the FDCPA lawsuit, plaintiff filed for bankruptcy using different counsel.  Plaintiff failed to list FDCPA suit as an asset in his bankruptcy Schedule B or otherwise indicate to the court or the trustee that such lawsuit existed.  In the State of Financial Affairs, the form requested plaintiff to List all suits, etc.  to which the debtor is or was a party within one year immediately preceding the filing of the bankruptcy case.  Plaintiff checked “None.”  Additionally, plaintiff did not list defendant as either a secured or unsecured creditor, but did list Target National Bank as a creditor with an unknown credit card claim. Defendant filed its motion for summary judgment on the grounds, among others, that judicial estoppel bars plaintiff from proceeding on his FDCPA.

The U.S. District Court judge granted the defendant’s motion for summary judgment on the grounds of judicial estoppels finding that the plaintiff’s actions were a deliberate attempt to deceive the bankruptcy court and manipulate the judicial system to gain an unfair advantage over his creditors, including defendant, which is exactly what judicial estoppel is designed to prevent.

Barker v. Asset Acceptance, 2012 U.S. Dist. LEXIS 77315 (D. Kan. June 5, 2012)