Reed v. City of Arlington

Case: 08-11098 Document: 00511569489 Page: 1 Date Filed: 08/11/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 11, 2011

No. 08-11098 Lyle W. Cayce
Clerk

DIANE G REED, Real party in Interest,

Plaintiff - Appellee Cross-Appellant
v.

CITY OF ARLINGTON,

Defendant - Appellant Cross-Appellee

Appeals from the United States District Court
for the Northern District of Texas

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA,
DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN,
ELROD, SOUTHWICK, and HAYNES, Circuit Judges.*
KING, Circuit Judge, joined by E. GRADY JOLLY, W. EUGENE DAVIS, JERRY
E. SMITH, EMILIO M. GARZA, BENAVIDES, CARL E. STEWART, DENNIS,
PRADO, OWEN, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, and
HAYNES, Circuit Judges:
The question before the en banc court is whether judicial estoppel bars a
blameless bankruptcy trustee from pursuing a judgment that the
debtor—having concealed the judgment during bankruptcy—is himself estopped
from pursuing. We hold that it does not. This result upholds the purpose of
judicial estoppel, which in this context is to protect the integrity of the

*
Judge Graves did not participate in this decision.
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No. 08-11098

bankruptcy process, by adhering to basic tenets of bankruptcy law and by
preserving the assets of the bankruptcy estate for equitable distribution to the
estate’s innocent creditors.
FACTUAL AND PROCEDURAL HISTORY
Kim Lubke, a former firefighter, won a judgment in excess of one million
dollars against the City of Arlington (the “City”) pursuant to the Family Medical
Leave Act (“FMLA”). During the City’s appeal to this court, Lubke and his wife
filed a Chapter 7 bankruptcy petition, but failed to disclose on their bankruptcy
schedules either his judgment against the City (an asset of the estate) or his
associated legal fees (a liability of the estate). Lubke did not inform his attorney
in the FMLA case, Roger Hurlbut, about the bankruptcy filing. The Lubkes
received a no-asset discharge and their bankruptcy case was closed.
Meanwhile, a panel of this court affirmed the FMLA judgment, but
remanded to the district court to recalculate damages. Lubke v. City of
Arlington, 455 F.3d 489 (5th Cir. 2006). The City then offered Lubke a Rule 68
judgment. In the course of discussing the City’s offer with his client, Hurlbut
learned of the Lubkes’ bankruptcy and immediately notified the trustee of the
Lubkes’ bankruptcy estate, Diane Reed (the “Trustee”), about the judgment. The
Trustee had the bankruptcy case reopened, the Lubkes’ discharge revoked, and
herself substituted in the FMLA litigation as the real party in interest. She also
sent the City a written acceptance of the City’s offer of judgment, planning to
distribute the recovered asset to the Lubkes’ creditors.
The City had filed a petition for rehearing in this court two days prior to
receiving Reed’s letter of acceptance. When it learned of the Lubkes’
bankruptcy, the City sought leave from the panel to argue that Lubke should be
judicially estopped from collecting the judgment due to his failure to disclose the
judgment in the bankruptcy proceedings. The panel denied the City’s petition
for rehearing on the FMLA judgment, but issued a mandate directing the district

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court to determine in the first instance whether judicial estoppel applied. Lubke
v. City of Arlington, 473 F.3d 571 (5th Cir. 2006) (per curiam).
In a very good opinion, the district court held that judicial estoppel should
be applied against Lubke, but also held that estopping the Trustee from
pursuing Lubke’s judgment against the City would run counter to the provisions
of the Bankruptcy Code and would be inequitable. Reed v. City of Arlington, —
F. Supp. 2d —, 2008 WL 8589782 (N.D. Tex. 2008). The court therefore crafted
the following remedy: Lubke was estopped from collecting or receiving any
money from the judgment against the City. Id. at *13. The Trustee, however,
would be free to collect the judgment on behalf of the estate for distribution to
Lubke’s creditors. Id. Any remaining funds after distribution would be refunded
to the City, and not to Lubke. Id. The City appealed.
A panel of this court reversed, effectively vacating the judgment against
the City. The panel held that the district court had abused its discretion by
distinguishing Lubke’s conduct from that of the Trustee in applying judicial
estoppel, and concluding that the balance of equities “disfavor[ed] permitting
this litigation to continue.” Reed v. City of Arlington, 620 F.3d 477, 482 (5th Cir.
2010). This panel opinion was vacated by our court’s decision to rehear the case
en banc. See Reed v. City of Arlington, 634 F.3d 769 (5th Cir. 2011). We now
affirm the judgment of the district court and state a general rule that, absent
unusual circumstances, an innocent trustee can pursue for the benefit of
creditors a judgment or cause of action that the debtor fails to disclose in
bankruptcy.
DISCUSSION
“The doctrine of judicial estoppel prevents a party from asserting a claim
in a legal proceeding that is inconsistent with a claim taken by that party in a
previous proceeding.” 18 James Wm. Moore et al., Moore’s Federal Practice
§ 134.30 at 63 (3d ed. 2011) (hereinafter “Moore’s”). It is “an equitable doctrine

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invoked by a court at its discretion” to “protect the integrity of the judicial
process.” New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (internal
quotation marks and citations omitted). While enumerating several factors that
typically inform the decision whether to apply the doctrine in a particular case,
the Supreme Court has refused to “establish inflexible prerequisites or an
exhaustive formula for determining the applicability of judicial estoppel,” stating
instead that different considerations “may inform the doctrine’s application in
specific factual contexts.” Id. at 751; see also 18 Moore’s § 134.31 at 73 (“Because
the doctrine is equitable in nature, it should be applied flexibly, with an intent
to achieve substantial justice. . . . Application of the doctrine of judicial estoppel
should be guided by a sense of fairness, with the facts of the particular dispute
in mind.”); 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 4477 at 553 (2d ed. 2002) (“The concern [of
judicial estoppel] is to avoid unfair results and unseemliness.”).
Here, we apply judicial estoppel “against the backdrop of the bankruptcy
system and the ends it seeks to achieve.” Browning Mfg. v. Mims (In re Coastal
Plains, Inc.), 179 F.3d 197, 208 (5th Cir. 1999). These ends are to “bring about
an equitable distribution of the bankrupt’s estate among creditors holding just
demands,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 227 (1930), and to “grant a
fresh start to the honest but unfortunate debtor,” Marrama v. Citizens Bank of
Mass., 549 U.S. 365, 367 (2007) (citation and internal quotation marks omitted).
Therefore, judicial estoppel must be applied in such a way as to deter dishonest
debtors, whose failure to fully and honestly disclose all their assets undermines
the integrity of the bankruptcy system, while protecting the rights of creditors
to an equitable distribution of the assets of the debtor’s estate.
In assessing whether judicial estoppel should apply, we look to see
whether the following elements are present:

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(1) the party against whom judicial estoppel is sought has
asserted a legal position which is plainly inconsistent with a
prior position;
(2) a court accepted the prior position; and
(3) the party did not act inadvertently.
See Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir. 2005);
Superior Crewboats Inc. v. Primary P & I Underwriters (In re Superior
Crewboats), 374 F.3d 330, 335 (5th Cir. 2004). We have held that “[j]udicial
estoppel is particularly appropriate where . . . a party fails to disclose an asset
to a bankruptcy court, but then pursues a claim in a separate tribunal based on
that undisclosed asset.” Jethroe, 412 F.3d at 600.
A. Our Result Follows from Bankruptcy Law
Judicial estoppel, as an equitable remedy, must be consistent with the law.
See I.N.S. v. Pangilinan, 486 U.S. 875, 883 (1988) (citations omitted). In this
case, the relevant law is the Bankruptcy Code, which distinguishes between the
debtor and the debtor’s estate immediately upon the filing of a Chapter 7
bankruptcy. Therefore, while Lubke himself was properly estopped for his
dishonesty, his post-petition misconduct does not adhere to the Trustee, who
received the judgment asset free and clear of a defense that arose exclusively
from Lubke’s post-petition actions.
At the moment Lubke filed his petition, the judgment against the City
became the property of Lubke’s bankruptcy estate. See 11 U.S.C. § 541(a)(1)
(property of the estate includes “all legal or equitable interests of the debtor in
property as of the commencement of the case”); 5 Collier on Bankruptcy
¶ 541.07[4] at 41 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2011)
(hereinafter “Collier”) (“Where a cause of action belonging to the debtor has been
merged into judgment prior to bankruptcy, the estate succeeds to all rights
under such judgment.”). The Trustee became the real party in interest upon

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filing, vested with the authority and duty to pursue the judgment against the
City as an asset of the bankruptcy estate. See 11 U.S.C. § 323(a) and (b) (the
trustee is the representative of the estate with the capacity to sue and be sued);
id. § 704(a)(1) (requiring the trustee to “collect and reduce to money the property
of the estate for which such trustee serves”); Kane v. Nat’l Union Fire Ins. Co.,
535 F.3d 380, 385 (5th Cir. 2008) (per curiam). This duty was not affected by
Lubke’s failure to disclose the asset, and it was not extinguished by the
conclusion of the bankruptcy case. See 11 U.S.C. § 554(d); Kane, 535 F.3d at 385;
Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir. 2004); 5 Collier
¶ 554.03 at 14 (“Even after the case is closed, the estate continues to retain its
interest in unscheduled property.”). Finally, the Bankruptcy Code allows a
bankruptcy case to be reopened in order to administer assets of the estate. See
11 U.S.C. § 350(b). All of these provisions reflect Congress’s clear preference for
the preservation of the bankruptcy estate and for its equitable distribution to
creditors through the bankruptcy process. See H.R. Rep. No. 103-835, at 33
(1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3341.
Furthermore, the general principle that a trustee receives causes of action
subject to defenses that could have been raised against the debtor “has been
properly limited to pre-petition defenses to a cause of action that would have
been applicable to a debtor if no bankruptcy case had been filed.” Riazuddin v.
Schindler Elevator Corp. (In re Riazuddin), 363 B.R. 177, 188 (B.A.P. 10th Cir.
2007). That is, courts are to evaluate these defenses as they existed at the
commencement of the bankruptcy. See Parker, 365 F.3d at 1272 n.3
(characterizing Bank of Marin v. England, 385 U.S. 99 (1966), as approving the
application of “pre-petition defenses and counterclaims to a cause of action that
would have been applicable to the debtor had no bankruptcy case been filed”);
Official Comm. of Unsecured Creditors v. R. F. Lafferty & Co., 267 F.3d 340,
355–57 (3d Cir. 2001) (citing Bank of Marin and the legislative history of 11

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U.S.C. § 541 in support of the proposition that defenses must be evaluated “as
they existed at the commencement of the bankruptcy”); cf. 11 U.S.C. § 541(a)(1)
(stating that the bankruptcy estate consists of “all legal or equitable interests of
the debtor in property as of the commencement of the case” (emphasis added)).
“The case is commenced, and the estate created, when the bankruptcy
petition is filed.” Burgess v. Sikes (In re Burgess), 438 F.3d 493, 496 (5th Cir.
2006) (en banc). After filing his bankruptcy petition—and hence after the
creation of the estate—Lubke represented to the bankruptcy court that he did
not own a judgment asset by purposefully omitting it from his bankruptcy
schedules. By pursuing the judgment post-petition, however, Lubke represented
to the district court and to this court that he did own such an asset. The
bankruptcy court effectively accepted Lubke’s first position that no judgment
existed and that he had no assets for distribution by issuing what is known
colloquially as a “no asset” discharge.
This chain of events makes clear that the elements giving rise to judicial
estoppel did not exist until after the bankruptcy petition was filed and the
judgment had passed into the bankruptcy estate. Because the City could not
have asserted judicial estoppel against Lubke based on the facts as they existed
before the commencement of the bankruptcy, the Trustee received the judgment
asset free of this affirmative defense. Cf. Cheng v. K & S Diversified Invs., Inc.
(In re Cheng), 308 B.R. 448, 455 (B.A.P. 9th Cir. 2004), affirmed, 160 F. App’x
644 (9th Cir. 2005) (“[I]t would be extraordinary for the trustee in the garden-
variety bankruptcy to be estopped on account of something the debtor did for its
own account during the case.”).
B. This Result Also Follows from Equity
Because judicial estoppel is an equitable doctrine, courts may apply it
flexibly to achieve substantial justice. See New Hampshire, 532 U.S. at 750; 18
Moore’s § 134.31 at 73. “The challenge is to fashion a remedy that does not do

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inequity by punishing the innocent.” In re Cheng, 308 B.R. at 459. Estopping
the Trustee from pursuing the judgment against the City would thwart one of
the core goals of the bankruptcy system—obtaining a maximum and equitable
distribution for creditors—by unnecessarily “vaporizing” the assets effectively
belonging to innocent creditors. See Biesek v. Soo Line R.R. Co., 440 F.3d 410,
413 (7th Cir. 2006).
Lubke’s unsecured creditors, including his FMLA attorney Roger Hurlbut,
filed timely proofs of claim in the reopened bankruptcy case in the sum of
$504,951.87. Other creditors filed late claims in the sum of $84,846.61. Those
creditors having meritorious claims are entitled to an equitable distribution of
the estate’s assets, which include the judgment against the City. See 11 U.S.C.
§ 726(a)(3) (tardily filed claims may share in the distribution once timely filed
claims are satisfied). As Judge Easterbrook so eloquently stated in Biesek:
[The debtor’s] nondisclosure in bankruptcy harmed his creditors by
hiding assets from them. Using this same nondisclosure to wipe out
his [tort] claim would complete the job by denying creditors even the
right to seek some share of the recovery. Yet the creditors have not
contradicted themselves in court. They were not aware of what [the
debtor] has been doing behind their backs. Creditors gypped by [the
debtor’s] maneuver are hurt a second time by the district judge’s
decision. Judicial estoppel is an equitable doctrine, and using it to
land another blow on the victims of bankruptcy fraud is not an
equitable application. Instead of vaporizing assets that could be
used for the creditors’ benefit, district judges should discourage
bankruptcy fraud by revoking the debtors’ discharges and referring
them to the United States Attorney for potential criminal
prosecution.
Biesek, 440 F.3d at 413 (emphasis added); see also In re Cheng, 308 B.R. at 460
(holding that the “equitable balance compels consideration of whether the
economic consequences of a judicial estoppel are borne by third parties” because
“an unscheduled cause of action is not the debtor’s property and . . . the victims
are the debtor’s creditors”).

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The City argues that equity does not favor the Trustee. Chief among its
complaints is the fact that Roger Hurlbut, whose claim for legal fees stemming
from the FMLA action makes him the primary creditor of Lubke’s estate, is an
attorney. Section 726 of the Bankruptcy Code requires the property of the estate
to be distributed without considering whether the debt is owed to an attorney,
a credit card company, or any other type of creditor. See 11 U.S.C. § 726.
Unable to articulate why Hurlbut’s occupation is relevant here, the City suggests
that Hurlbut is somehow associated with Lubke’s deception and is therefore not
an innocent creditor. The district court explicitly found otherwise, see Reed,
2008 WL at *2 & n.5, and we find no reason to doubt its conclusion.
The City also argues that Lubke will benefit if the Trustee is allowed to
collect the judgment and distribute it in payment to Lubke’s creditors. The
City’s concern appears to be that the creditors, having been satisfied through the
bankruptcy process, will not pursue collection efforts against Lubke despite the
revocation of his bankruptcy discharge. However, this is a “benefit” in theory
only. Even if the Trustee were estopped from collecting the judgment, it is
highly unlikely that Lubke’s creditors will pursue him, both because their claims
may be time-barred under state law, and because Lubke does not have any
assets aside from the judgment with which to satisfy the creditors’ claims.
Finally, the City argues that it has been victimized by having to pay fees
and expenses associated with litigating the issues resulting from Lubke’s non-
disclosure. See 29 U.S.C. § 2617(a)(3) (2006). These fees, however, resulted from
the City’s own efforts to avoid payment of the affirmed FLMA judgment by
having the Trustee estopped in addition to Lubke. Furthermore, the City’s
argument is of doubtful relevance to the judicial estoppel analysis. See In re
Coastal Plains, 179 F.3d at 213 (“Again, the purpose of judicial estoppel is to
protect the integrity of courts, not to punish adversaries or to protect litigants.”).

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The district court tailored its remedy to address the facts and
circumstances of this case. Its careful application of judicial estoppel protected
the integrity of the bankruptcy system by deterring debtors from concealing
assets; was consistent with the core bankruptcy goal of obtaining a maximum
and equitable distribution for creditors; and abided by bankruptcy law and
principles of equity.
C. This Result Is Consistent with Our Own Precedents
Declining to estop the Trustee is consistent with the trio of judicial
estoppel cases we have hitherto decided in the bankruptcy context. The material
facts of this case are indistinguishable from those of Kane v. National Union Fire
Insurance Co., 535 F.3d 380 (5th Cir. 2008) (per curiam), our most recent
opinion. Both cases involve a Chapter 7 trustee who substituted into a cause of
action to pursue a claim that the debtor had wrongly concealed during the
bankruptcy proceeding. Neither trustee abandoned the claim at any point. In
both situations, estopping the trustee would unnecessarily deny the estate’s
innocent creditors their right to seek some share of the recovery. Faced with the
identical question raised here, we held in Kane that the trustee of a bankruptcy
estate should not be judicially estopped from pursuing such a claim. Id. at 387.
We reasoned that the Kanes’ personal injury claim was an asset of the estate
that the trustee had never abandoned, and that the only way the creditors would
be harmed is if judicial estoppel were applied to bar the trustee from pursuing
the claim on behalf of the estate. Id.
In Superior Crewboats Inc. v. Primary P & I Underwriters (In re Superior
Crewboats), 374 F.3d 330 (5th Cir. 2004), we precluded the debtors themselves
from pursuing a lawsuit for their own benefit that they had failed to disclose in
their bankruptcy schedules. The debtors incorrectly told the bankruptcy trustee
that the claim was proscribed by the statute of limitations; the trustee agreed,
and formally abandoned the claim under the Bankruptcy Code. Id. at 333.

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Upon abandonment, the estate’s interest in the claim reverted to the debtors, see
11 U.S.C. § 554, who were then properly estopped from benefiting from their
deception, see In re Superior Crewboats, 374 F.3d. at 336; Kane, 535 F.3d at 386.
Here, the Trustee has not abandoned the estate’s interest in the judgment
against the City; she is therefore entitled to pursue the judgment as the real
party in interest for the benefit of the estate’s creditors.
In Browning Manufacturing v. Mims (In re Coastal Plains, Inc.), 179 F.3d
197 (5th Cir. 1999), we judicially estopped a debtor’s successor from collecting
a judgment it obtained by pursuing, outside of bankruptcy, an undisclosed claim
that was part of the debtor’s estate. The trustee in that case was also estopped
based on a sharing agreement with the debtor’s successor in which the debtor’s
successor stood to receive 85 percent of any recovery, while the estate would
receive only 15 percent. See id. at 204. Key to our application of judicial
estoppel in Coastal Plains was the fact that recovery would benefit the
individual who actually perpetrated the bankruptcy fraud in great disproportion
to the bankruptcy estate. See Kane, 535 F.3d at 387 (citing In re Coastal Plains,
179 F.3d at 202–03, 212). No such equitable concerns inhere in this case, where
Lubke does not stand to benefit from recovery of a judgment even if there is a
surplus after all debts and fees have been paid.
D. This Result Accords with Other Circuits
The Eleventh Circuit has decided, and the Seventh and Tenth Circuits
have opined, that judicial estoppel should not be applied against an innocent
trustee with standing to pursue a claim. In Parker v. Wendy’s International,
Inc., 365 F.3d 1268 (11th Cir. 2004), which involved facts virtually identical to
this case, the Eleventh Circuit held that judicial estoppel should not be applied
against a trustee pursuing a debtor’s concealed discrimination claim after the
debtor’s discharge. Id. at 1272. The Eleventh Circuit reasoned that the claim
became an asset of the bankruptcy estate, and the trustee became the real party

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in interest in that claim, when the debtor filed her petition. Id. The trustee
neither abandoned the claim, nor took an inconsistent position with regard to
the claim. The Eleventh Circuit therefore concluded that the trustee could not
be judicially estopped from pursuing it. Id.
In Eastman v. Union Pacific Railroad Co., 493 F.3d 1151 (10th Cir. 2007),
the Tenth Circuit indicated that it would not apply judicial estoppel against a
trustee pursuing a debtor’s personal injury claim discovered after the debtor’s
discharge, because the trustee was the real party in interest and had not
engaged in contradictory litigation tactics. Id. at 1155 n.3 (citations omitted);
accord Riazuddin, 363 B.R. at 187–88 (holding that discharged debtors’
misconduct in concealing their personal injury claim did not estop the estate’s
trustee from pursuing the claim on behalf of the estate after the claim was
discovered).
In Biesek v. Soo Line Railroad Co., 440 F.3d 410 (7th Cir. 2006), the
Seventh Circuit suggested that a bankruptcy trustee should be able to pursue
a claim on behalf of innocent creditors that the debtor himself would be judicially
estopped from pursuing. See id. at 413; accord Cannon-Stokes v. Potter, 453 F.3d
446, 448 (7th Cir. 2006) (“[B]ankruptcy fraud designed to hide an asset from
creditors does not prevent the creditors themselves from realizing on the claim
after its discovery.”). The court noted that “[j]udicial estoppel is an equitable
doctrine, and using it to land another blow on the victims of bankruptcy fraud
[the creditors] is not an equitable application.” Biesek, 440 F.3d at 413.
We endorse the reasoning of our sister circuits in holding that the district
court correctly refused to apply judicial estoppel against the Trustee in this case.
E. Attorneys’ Fees and Damages
Addressing the City’s appeal of the district court’s award of legal fees for
work performed after the date of the FMLA judgment, we hold that the district
court did not abuse its discretion in awarding such fees. Addressing the

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Trustee’s cross-appeal of the district court’s offset of the City’s contributions to
Lubke’s retirement funds against the FMLA damage award, we hold that the
offset complied with the panel’s instructions on remand.
CONCLUSION
Absent unusual circumstances, an innocent bankruptcy trustee may
pursue for the benefit of creditors a judgment or cause of action that the
debtor—having concealed that asset during bankruptcy—is himself estopped
from pursuing. The district court’s Final Judgment, filed on August 8, 2008, and
its Order Granting Attorney’s Fees and Costs, filed on October 7, 2008, are both
AFFIRMED.

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EDITH H. JONES, Chief Judge, with whom HAROLD R. DeMOSS and EDITH
B. CLEMENT, Circuit Judges, join, dissenting:

With due respect to my brethren, I respectfully dissent from their
balancing of the equities in this case and from one significant legal point. We do
not disagree on the general principles governing judicial estoppel except for one
thing. The majority posits that only the interests of the bankruptcy process are
involved here. I would contend that the federal district and circuit courts are
part of the relevant judicial process, and that a broader view should have been
taken of the impact of satellite litigation generated by Lubke’s deception. First,
our court had to expend significant resources concluding an opinion in the
original appeal of this case, only to find that the plaintiff was no longer the
proper party. Accordingly, we were required to remand for reconsideration by
the district court a plethora of procedural issues made necessary only by Lubke’s
deception. These events necessitated a special oral argument hearing, another
appellate opinion, and eventually, an en banc decision attempting to resolve our
conflicting precedents.1 Second, because this two-party dispute evolved into a
protracted three-party dispute with the trustee and her counsel, the fairness of
the fee award exacted against the taxpayers of the City of Arlington has been
seriously compromised, contrary to the courts’ duty to impose reasonable fees on
a defendant. This may be brushed off as simply the logical consequence of the
convoluted legal proceedings, but it is Lubke’s deception that set them in motion,

1
Notwithstanding the majority’s proffered reconciliation of In re Superior Crewboats
and Kane, the nuances of bankruptcy procedure fail to explain why judicial estoppel should
work differently. The majority finds the distinction in the Superior Crewboats trustee’s
“abandonment” of a potential lawsuit owned by the debtor, an action that removed the lawsuit
from the trustee’s control. See 11 U.S.C. § 554. Just as a closed bankruptcy case may be
“reopened” when a trustee finds hidden assets, however, an abandonment may be revoked in
the best interest of creditors. See, e.g., In re Killebrew, 888 F.2d 1516, 1520 n.10 (5th Cir.
1989); Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609, 618 (7th Cir. 2002). The
majority opinion should at least apply its own rationale consistently.

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not the City’s violation of his FMLA rights. Thus, the majority’s reasoning
purports to protect the interests of creditors in general, while overlooking that
the goal of judicial estoppel is to protect the integrity of the entire judicial
process. New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S. Ct. 1808, 1814
(2001).
How Lubke perverted the overall judicial process is easily explained. Had
he revealed to his employment lawyer Hurlbut that he was filing a Chapter 7
petition just after the city’s appellate brief had been filed in this court, the
trustee would have immediately been substituted as the real party in interest.
The trustee might have accepted the Rule 68 Offer of Judgment, and there would
have been no need for a remand to consider judicial estoppel. Thus, the City
would not have had to invoke In re Superior Crewboats, Inc., 374 F.3d 330 (5th
Cir. 2004), the then-governing authority that strongly supported a claim for
judicial estoppel.2 There might even have been no need for a trial on remand to
recalculate damages, inasmuch as the financial dynamics of Chapter 7 often
impel a trustee to settle litigation involving the debtor in order to wind up a case
expeditiously and inexpensively. Certainly, this case would have terminated
much faster and more sensibly, while the creditors who originally filed proofs of
claim still had enforceable rights in Lubke’s bankruptcy.
Instead, the courts are five years down the road, over a quarter million
dollars of originally filed proofs of claim have evaporated, and the biggest
beneficiaries of the reopened case–by far–are lawyers. See Reed v. City of
Arlington, 620 F.3d 477, 480 n.2, 483 (5th Cir. 2010) (panel opinion).
One may extol the virtues of “innocent” trustees, and I do not question the
integrity of this trustee at all, but let us not romanticize what’s going on here.
Lubke is going on with his life, effectively freed by the passage of time from the

2
Not until Kane came out, in 2008, was there support in this circuit for the trustee’s
position.

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claims of unsecured creditors. It is pure speculation to say, as does the majority,
that he has “no assets.” He was not honest about this litigation, why not about
other assets? The expressed concern for “the creditors” lacks a certain depth of
feeling. Those creditors were, and remain, almost exclusively credit card
companies. Two-thirds of their claims will never be repaid because they were
not renewed when the case was re-opened long after it had been declared a no-
asset filing. The record suggests that others cut their losses by bundling and
selling their unpaid claims to third parties.
As for the lawyers, Hurlbut received over $100,000 from Lubke even before
the bankruptcy was filed, yet claims from the estate nearly $450,000 in
additional fees. The trustee and her attorney will be reimbursed well into six
figures as administrative priority claimants who will be paid ahead of the
unsecured creditors. All this is legal, but in the commercial world, the
transactional costs of such creditor recovery are wildly disproportionate. Surely
courts need not cover our eyes against the real dollar impact of our balancing of
“equities.”
The majority notes that in “unusual circumstances,” the doctrine of
judicial estoppel may occasionally prevent a trustee from recovering on a claim
that the debtor concealed from the courts upon filing for bankruptcy relief.
Unfortunately, the majority did not balance the factual equities here as I think
was obviously appropriate.

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