In this case we consider whether a debtor’s nondisclosure, as an asset, of a potential tort claim during a debtor in possession reorganization under Chapter 11 of the Bankruptcy Code bars the debtor from post-confirmation litigation of that *617 claim against defendants who were not creditors in the bankruptcy.
The petitioners are WinMark Limited Partnership (Win-Mark) and its two general partners, Jay A. Winer (Winer) and Mark Sapperstein (Sapperstein). WinMark was formed in 1987 for the purpose of owning, developing, and leasing two office buildings on two adjoining parcels of land (the Front Parcel and the Back Parcel), totalling 5.324 acres, in Odenton, Anne Arundel County. The respondents are Miles & Stock-bridge, a law firm, and two of its attorneys (hereinafter collectively Miles). In September 1994, the petitioners sued Miles alleging professional negligence and breach of contract. The claims arise out of the background events hereinafter generally described. 1
In June 1988, WinMark borrowed $2,070,000 under a construction loan, secured by a first lien on the Front Parcel, from Sovran Bank/Maryland, later succeeded by NationsBank of Maryland, N.A. (the Bank). On May 17, 1990, WinMark borrowed $300,000 from the Bank on a land loan that was secured by a first lien on the undeveloped Back Parcel. The land loan was due November 16, 1991. Winer and Sapper-stein personally guaranteed both loans.
As the due date of the land loan approached in the fall of 1991, WinMark negotiated with the Bank for an extension of the land loan and for a restructuring of the construction loan to take advantage of lower prevailing interest rates. Petitioners alleged that, during this period, Miles represented both petitioners and the Bank in the negotiations and that Miles did so until some time in December 1991 when Miles withdrew from representation of the petitioners, but continued representation of the Bank. Petitioners further allege that an agreement was reached in January 1992 with the Bank under which WinMark paid in full the $300,000 land loan and continued to make all timely payments on the construction loan but *618 that the Bank nevertheless notified WinMark that it was in default on the construction loan. This precipitated an injunction action in the Circuit Court for Anne Arundel County by petitioners against the Bank resulting in an order in February 1992, enjoining the Bank from exercising any default remedies under the construction loan. 2
The petitioners allege that “[subsequent to the litigation in State Court, the Bank claimed that it was entitled to attorney’s fees [in] excess of $200,000.” Petitioners further aver that
“[a]s a direct result of the Bank’s demand for attorney fees allegedly due from the State Court litigation, WinMark and the Bank were unable to agree on the terms of refinancing of the Construction Loan at maturity, and, consequently, WinMark was forced to file bankruptcy under Chapter 11 of the Bankruptcy Code on July 20,1993.”
Neither Winer nor Sapperstein, the guarantors, petitioned in bankruptcy.
WinMark’s second amended plan of reorganization (the Plan) was confirmed on March 14, 1994. Under the Plan WinMark is a debtor in possession. On April 28, 1994, the petitioners and others executed a general release of the Bank, therein called the Lender. That release defines “Releasees” to mean, inter alia, “(iii) the Lender’s officers, ... agents, attorneys, ... but only in their respective capacities as such----”
Six months after confirmation of the Plan, petitioners instituted in the Circuit Court for Baltimore City the instant action against Miles. The theory of the complaint is that the petitioners were deprived of zealous representation in their workout negotiations with the Bank because of the alleged conflict of interests on the part of Miles.
Accepting the allegations of the complaint as true for purposes of the responsive motion, Miles raised a number of legal *619 defenses, including release and judicial estoppel. The defense of release was based on the document of April 28, 1994. The factual predicate for the judicial estoppel argument was the absence from WinMark’s filings in the Chapter 11 proceedings of any reference to the claim against Miles as an asset of the bankruptcy estate. For example, WinMark’s statement of financial affairs, filed with the bankruptcy court, included a schedule of personal property. WinMark replied, “None,” in answer to the category: “Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims.”
On the other hand, petitioners argued to the circuit court, inter alia, that the position asserted by Miles was not consistent with the policy of the Bankruptcy Code. Petitioners said that the claim “is an asset of the [bankruptcy] estate and our position is that policy dictates that [the] estate be there for the creditors. The purpose of disclosure in a Chapter 11 case is for the creditors. It is not for somebody not involved in the case.” WinMark also represented that the Plan had not been substantially completed and that the Plan was still subject to amendment.
The circuit court held that the claim was barred by judicial estoppel and by the release. In addition, the circuit court alternatively held that the factual allegations of the complaint were not sufficient to support petitioners’ claim for punitive damages.
Petitioners appealed to the Court of Special Appeals. That court affirmed in an opinion that relied exclusively on the judicial estoppel defense, one of the two grounds on which the circuit court had relied in granting summary judgment for Miles on the entirety of the claims against it.
WinMark Ltd. Partnership v. Miles & Stockbridge,
*620 I
The concept of judicial estoppel is perhaps best presented by an illustration. In
Kramer v. Globe Brewing Co.,
“ ‘If parties in court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of courts of justice would in most cases be paralyzed; the coercive process of the law, available only between those who consented to its exercise, could be set at-naught by all. But the rights of all men, honest and dishonest, are in the keeping of the courts, and consistency of proceeding is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation, must act consistently with it; one cannot play fast and loose.’ ”
Id.
at 469,
This Court also applied judicial estoppel against a widower who, in the probate of his wife’s estate in Maine, had taken the position that certain securities were part of the corpus of a trust of which he was successor to his wife as trustee, but who, in an action in Maryland for distribution of those securities upon termination of that trust, took the position that the securities were his own individual property.
See Stone v. Stone,
In the instant matter our inquiry is whether judicial estoppel applies when three circumstances are present: (1) the plaintiff in the civil action in which judicial estoppel is raised as a defense is or was a debtor in possession in a proceeding under Chapter 11 of the Bankruptcy Code, (2) the claim arose prior to commencement of the bankruptcy proceeding, and (3) the claim was not listed in the schedules and disclosure statements filed by the debtor in the bankruptcy proceeding. As the decisions hereinafter cited and discussed will illustrate, judicial estoppel is to be distinguished from equitable estoppel and res judicata. Where the defendant in the subsequent civil action was a substantial creditor in the Chapter 11 proceedings in which a plan of reorganization was confirmed, the debtor, as plaintiff in the civil action, may be equitably estopped because of the reliance by the creditor, in voting for the plan of reorganization, on the absence, as a disclosed asset, of any claim by the debtor against that creditor. Similarly to be distinguished from the judicial estoppel issue are those cases in which the circumstances surrounding the confirmation of the plan of arrangement cause the order of confirmation to have claim or issue preclusion effect on the claim asserted in the subsequent civil action by the debtor against the creditor.
The issue before us lies at the juncture of competing interests. As a result, the reported decisions fall into one of two categories. Cases in the numerically larger category emphasize maintaining the integrity of the judicial system by
*622
avoiding the- unseemly encouragement of litigants’ playing “fast and loose” with the judicial system. A minority of cases give determinative weight to the interest of the bankruptcy creditors of the debtor, who should be the initial recipients of any net recovery on the asset represented by the undisclosed claim. The two views are respectively found in the majority and dissenting opinions in
Oneida Motor Freight, Inc. v. United Jersey Bank,
Oneida, in addition to presenting the three basic circumstances of the issue before us, also involved a principal bankruptcy creditor as the civil action defendant. Further, after the civil action was filed “the plan was modified in order that one-third of the net recovery that Oneida might obtain against the bank in [the] lawsuit be paid to the creditors.” Id. at 416 n. I. 3 The court emphasized that 11 U.S.C. § 1125(b) prohibits solicitation of approval of a plan of reorganization by a holder of a claim against the bankruptcy estate without transmitting “a written disclosure statement approved, after notice and a hearing, by the court as containing adequate information.” “Adequate information” is defined in § 1125(a)(1) to mean “information of a kind, and in sufficient detail ... that would enable a hypothetical reasonable investor typical of holders of claims or interests of the relevant class to make an informed judgment about the plan.... ”
The Oneida majority first applied an equitable estoppel analysis. It pointed to “[t]he importance of full disclosure [as] *623 underlaid by the reliance placed upon the disclosure statement by the creditors and the [bankruptcy] court.” Id. The court, however, held that the informationally deficient plan was “not cured by the later modification.” Id. at 418 (footnote omitted). Creditors were not alerted by the original plan to “the possible financial benefits enuring to them upon the successful prosecution of the claim.” Id. Further, had the civil action defendant known of the potential lawsuit, it might not have stipulated concerning its lien and voted for confirmation of the plan. Id.
The majority in Oneida also applied judicial estoppel, which, it said, “looks to the connection between the litigant and the judicial system while equitable estoppel focuses on the relationship between the parties to the prior litigation.” Id. at 419. The majority concluded that the debtor’s “failure to list its claim against the bank worked in opposition to preservation of the integrity of the system which the doctrine of judicial estoppel seeks to protect.” Id. This was because, in the Chapter 11 proceedings, the debtor, by silence, had treated the bank’s claim as undisputed. Id. Accordingly, the court affirmed the district court’s dismissal of the civil action.
The dissent presented the case for the other interest involved in the problem, saying:
“Concern for Oneida’s numerous unsecured creditors compels me to dissent from the court’s disposition. Those creditors, as well as Oneida, stand to lose by virtue of that disposition. If Oneida had been able to foresee this court’s novel application of equitable and judicial estoppel, it would have been able to protect itself against the loss the court today imposes upon it. Oneida’s unsecured creditors, however, had no way of protecting themselves and should not be required to contribute towards a windfall for an alleged wrongdoer.”
Id. at 420 (Stapleton, J., dissenting).
The dissent further said:
“The Code’s disclosure requirements are intended to protect those creditors whom a debtor’s failure to disclose hidden assets would prejudice. A fortiori, a court’s re *624 sponse to nondisclosure should do likewise. Not only does the court fail to safeguard the interests of Oneida’s unsecured creditors, but it effectively penalizes them by foreclosing the prosecution of claims against the bank that would, if successful, result in a substantial enhancement of the estate and in their receiving more than the approximately thirty cents on the dollar for which they have been forced to settle. The only real winner in the case as decided is the bank, whom the court has relieved of the responsibility of justifying its allegedly improper behavior.”
Id. at 422-28.
The issue before us has been resolved by dismissal of claims on the ground of judicial estoppel, applied either exclusively or in conjunction with other defenses, in the following cases:
Payless Wholesale Distribs. v. Alberto Culver (P.R.) Inc.,
In general, the above-cited cases do not discuss the interest of the creditors. The court in
Payless Wholesale Distribs.
acknowledged that “[i]ndeed, defendants may have a windfall” but concluded that “it [was] an unacceptable abuse of judicial
*625
proceedings” for the debtor to have represented that no claims existed and then to have attempted to resurrect claims and “obtain relief on the opposite basis.”
In re Auto West, Inc.,
The court first analyzed provisions of the Bankruptcy Code and concluded that, “[gjiven the express statutory scheme for removing property from a debtor’s estate, application of res judicata, estoppel or waiver in this case would be improper.” Id. at 764. The court then said:
“Moreover, the extinguishment of unscheduled assets is inconsistent with the policy of the Code. Property of the estate is administered by a trustee or debtor in possession *626 for the benefit of all creditors. The debtors in this case, as debtors in possession, hold the title and powers of trustee, subject to the control of the bankruptcy court. 11 U.S.C. § 1107. The debtor in possession is strictly supervised by the bankruptcy court, and its actions, including abandonment or waiver of a chose in action, must be approved. To permit otherwise might be an inducement for a debtor in possession to fail to schedule claims, which might then revert to the debtor’s ownership. See Stein v. United Artists Corp.,691 F.2d 885 , 892 (9th Cir.1982). Further, waiver of a chose in action that could benefit all creditors to the detriment of one creditor, is inconsistent with the fiduciary obligation of the debtor in possession.”
Id.
Greenheart Durawoods, Inc. v. PHF Int’l Corp.,
4 D.R. Cowans, Cowans Bankruptcy Law and Practice § 20.32(a) (6th ed. 1994) (Cowans), addresses the situation of a debtor in a Chapter 11 reorganization who “does not list an asset in the papers and does not provide for it in the plan.” Id. at 166. The author concludes that “[njevertheless, an *627 asset could not be considered abandoned and the court may approve of appointment of special counsel to collect on the omitted cause of action.” Id.
This Court, in
Adams v. Manown,
On certiorari review in Adams v. Manown we were faced with the same competing interests presented in the instant matter. Indeed, there, liability of the defendant in the civil action to the discharged bankrupt had been determined by judgment. To the extent that the judgment was collectible, extinguishing it by applying the clean hands doctrine would have resulted in a windfall to the judgment debtor and would have deprived the bankrupt’s creditors of an asset from which they should have benefited. We said:
“By raising cries of unclean hands and in pari delicto, Manown has successfully presented this case as if the only alternatives were either to give Adams the benefit of his fraud or to give Manown the benefit of a windfall. What has become obfuscated through two levels of courts is that those who are entitled to benefit from the judicial determination of Manown’s indebtedness to Adams are the creditors of Adams.”
Adams v. Manown
controls on the issue of whether judicial estoppel should be applied under the circumstances
*628
presented here. The policy underlying judicial estoppel and underlying the clean hands doctrine is the same. “The clean hands doctrine is not applied for the protection of the parties nor as a punishment to the wrongdoer; rather, the doctrine is intended to protect the courts from having to endorse or reward inequitable conduct.”
Id.
at 474-75,
Two of the petitioners, Winer and Sapperstein, were not bankrupts. The Court of Special Appeals in its
WinMark
decision sustained the application of judicial estoppel against them because they “stood in a relationship of close privity with WinMark.”
II
The disposition of WinMark’s claim against Miles involves considerations different from the claims of Winer and Sapper-stein, and different from those present in
Adams v. Manown.
The bankruptcy proceedings involved in
Adams
were under Chapter 7 of the Bankruptcy Code, and there had been a trustee appointed by the United States Trustee.
Under the Bankruptcy Code, in Chapter 11 proceedings, the “confirmation of a plan vests all of the property of the estate in the debtor,” unless otherwise provided in the plan or in the order confirming the plan. 11 U.S.C. § 1141(b). Further, § 1141(c) provides that, in general, “after confirmation of a plan, the property dealt with by the plan is free and clear of all claims and interests of creditors, equity security holders, and of general partners of the debtor.” Property that is not scheduled or disclosed in the bankruptcy proceedings is not “property dealt with by the plan.”
Cf. Stein v. United Artists Corp.,
Under § 1107(a) of the Bankruptcy Code a debtor in possession shall perform “all the functions and duties ... of a trustee serving in a case under [Chapter 11].” Employment by a trustee of an attorney generally requires the approval of the bankruptcy court. 11 U.S.C. § 327(a). WinMark did not obtain the approval of the bankruptcy court to engage counsel to institute the present action on its behalf. Further, and more substantively, we held,
supra,
that judicial estoppel should not be applied under the circumstances presented so that the action may proceed “strictly supervised” by the bankruptcy court.
In re Auto West,
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED. CLAIMS OF THE PETITIONERS, JAY A. WINER AND MARK SAPPERSTEIN, REMANDED TO THE COURT OF SPECIAL APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. CLAIM OF PETITIONER, WINMARK LIMITED PARTNERSHIP, REMANDED TO THE COURT OF SPECIAL APPEALS FOR THE ENTRY OF A JUDGMENT VACATING THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMANDING THE CLAIM OF WINMARK LIMITED PARTNERSHIP TO THAT COURT FOR THE ENTRY OF A STAY AND ANY FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND COSTS PREVIOUSLY INCURRED IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS.
Notes
. The facts are drawn from petitioners’ complaint and from the exhibits to Miles’s motion for summary judgment that was titled, "Motion to Dismiss.”
. The injunction was dismissed without prejudice after the automatic stay in WinMark's bankruptcy took effect.
. An additional factor that was present in Oneida is referred to in a later opinion of the Third Circuit involving judicial estoppel, Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996). The opinion in Ryan Operations points out that "the plaintiff in Oneida had not only failed to disclose its potential claim against a bank for $7.7 million as a contingent asset on its § 521 schedule of assets and liabilities, but simultaneously claimed the corresponding $7.7 million debt to the bank as a liability on the same schedule.” Id. at 362 n. 4. In Ryan Operations the Third Circuit reversed a summary judgment against the debtor based on judicial estoppel because there was "no basis in this case for inferring that Ryan deliberately asserted inconsistent positions in order to gain advantage—i.e., that it played fast and loose with the courts.” Id. at 363.