Lead Opinion
Dеfendant-appellant Howard Mason’s two assignments of error lack merit. The trial court did not err in granting the motion for summary judgment filed jointly by new-party plaintiff Brack Manufacturing Company (“Brack”), third-party defendants George and Darryl Brack, and plaintiff Brack Mаnufacturing Company Employees Profit Sharing Plan & Trust (“Brack Trust”). The trial court, also, properly denied defendant’s motion for summary judgment. The trial court correctly ruled that all claims, including the counterclaim and third-party claim, were disposed of by the bankruрtcy court and that appellant’s claims were precluded under the principles of equitable or judicial estoрpel.
In the present case, Brack Trust brought suit against appellant for repayment of a loan in the amount of $9,000. Apрellant duly answered, filed a counterclaim against Brack Trust and a third-party complaint (incorrectly styled a cross-clаim) against George and Darryl Brack in the amount of $107,000 (apparently jointly and severally) for work done on their behalf. An amended complaint was filed by Brack Trust wherein new-party plaintiff Brack asserted a claim against appellant for commissiоns paid but unearned in the atnount of $25,801.45.
Thereafter, appellant filed for bankruptcy protection under Chapter 13 (individual reorganization) of the United States Bankruptcy Code. Upon appellant’s motion, the trial court stayed the instant proсeedings. Subsequently, the Chap *400 ter 13 reorganization was concluded and the trial court lifted the stay upon appellant’s mоtion.
Appellees, thereafter, filed a joint motion for summary judgment. Attached thereto is appellant’s “Chapter 13 Statement” listing all of appellant’s assets and debts. However, on appellant’s “Chapter 13 Statement” and throughout the bankruptсy proceedings, appellant failed to list as an asset his third-party claim against George and Darryl Brack seeking $107,000, 1 and аppellant failed to list as a claim or debt Brack’s claim against him for $25,801.45.
The thrust of appellees’ motion for summary judgment is thаt all of appellant’s prebankraptcy petition claims were, or at least should have been, adjudicated by thе bankruptcy court. Appellees contend that appellant is equitably or judicially estopped from prosecuting his claim for $107,000 asserted in his third-party complaint. Appellant, on the other hand, argues that since he did not file such claim as an asset in his Chapter 13 petition, he may assert it now. Moreover, appellant argues that all claims against him were disposed of by the bankruptcy court.
“A long-standing tenet of bankruptcy law requires one seeking benefits under its terms to satisfy a companion duty to schedule, for the benefit of creditors, all his interests and property rights.”
Oneida Motor Freight v. United Jersey Bank
(C.A.3, 1988),
Moreover, the doctrine of judicial estoppel applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Oneida, supra, at 419; H.R.P., supra, at 254; and Freedom Ford, Inc., supra, at 587.
In the present case, appellant asserted his claim by way of a counterclaim and third-party claim prior to his petition for Chapter 13 proteсtion. Appellant failed *401 to state his claim as an asset on his “Chapter 13 Statement” or at any time during the bankruptcy proсeedings. In reliance thereupon, appellee Brack chose not to file a proof of claim concerning commissions allegedly paid to, but unearned by, appellant. Thereafter, upon conclusion of appellаnt’s Chapter 13 proceedings, he reasserted his claim against appellees. However, appellant’s failure to disclose the relevant claim estops him from asserting it now. Accordingly, the trial court did not err in ruling that the doctrine of equitable and/or judicial estoppel applies.
Accordingly, appellant’s two assignments of error are overruled.
Judgment affirmed.
Notes
. Howеver, in an “objection to amended proof of claim,” appellant briefly cites a counterclaim in the court оf common pleas, but merely states it sets out additional remuneration owed appellant by Brack. It could not possibly hаve put the bankruptcy court on notice of appellant's third-party claim against George and Darryl Brack.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s judgment in this appeal. Section 362 of the Bankruptcy Code provides that the filing of a petition in bankruрtcy:
“ * * * operates as a stay, applicable to all entities, of:
“(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose bеfore the commencement of the case under this title.” Section 362(a)(1), Title 11, U.S.Code.
According to the Court of Appeals for the Third Circuit, “[S]ection 362 by its terms only stays proceedings against the debtor. The statute does not address actions brought by the debtor which would inure to the benefit of the bankruptcy estate.”
Assn. of St. Croix Condominium Owners v. St. Croix Hotel Corp.
(C.A.3, 1982),
For this reason, I find that appеllant was not estopped from asserting his claim against appellees. The trial court, therefore, improperly granted appellees’ motion for summary judgment as the bankruptcy statute does not address actions *402 brought by the debtor which would inure to the benefit of the bankruptcy estate. N. Pipeline Constr. Co. v. Marathon Pipe Line Co.; Assn. of St. Croix Condominium Owners v. St. Croix Hotel Corp.; Harris v. Alexander Grant & Co., supra. For the same reasons, the trial court improperly denied appellant’s motion for summary judgment. Accordingly, I would reverse the judgment of the trial court.