¶15 (concurring) — The majority holds a bankruptcy trustee and a debtor are different parties for purposes of judicial estoppel. I concur. But I write separately to emphasize trial courts should rely exclusively on the three factors enumerated by the United States Supreme Court. 3 While the majority notes these are “core” factors, it goes on to say “ ‘[additional considerations’ ” may guide a court’s decision without explaining precisely what these factors are. Majority at 538-39 (alteration in original) (quoting New Hampshire v. Maine, 532 U.S. 742, 753, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) and quoting John S. Clark Co. v. Faggert & Frieden, PC, 65 F.3d 26, 29 (4th Cir. 1995)). Despite a citation to the six factors noted in Markley v. Markley, the majority’s amorphous standard potentially grants too much discretion to a trial court. Majority at 539 (citing Markley v. Markley, 31 Wn.2d 605, 614-15, 198 P.2d 486 (1948)). Additional factors create unnecessary pliability in a system that prefers predictability. “Vague standards *543are manipulable.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Sanders, J.*543¶16 Furthermore, the factors announced in Markley were derived entirely from quoting secondary authority. Markley, 31 Wn.2d at 614-15 (quoting 19 Am. Jur. Estoppel § 73, at 709). These factors are dicta, and we have never held they are requisite ingredients to a trial court’s analysis.4 Indeed though the wording is somewhat different, Markley’s six factors essentially overlap with the three core factors. The only ones that are somewhat supplemental are the first, second, and fourth factors. See id. But these are more a matter of procedure than substantive analysis.
¶17 The three core factors as set forth by the United States Supreme Court and relied on by the majority supply all the elements a trial court needs to determine whether judicial estoppel applies. Rather than crafting additional considerations, trial courts should simply rely upon these three factors to guide their analysis.
¶18 I concur.
These three core factors are “(1) whether ‘a party’s later position’ is ‘ “clearly inconsistent” with its earlier position’; (2) whether ‘judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled” ’; and (3) ‘whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ ” Majority at 538-39 (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999) and Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982))).
The factors quoted in Markley are: “ ‘(1) The inconsistent position first asserted must have been successfully maintained; (2) a judgment must have been rendered; (3) the positions must be clearly inconsistent; (4) the parties and questions must be the same; (5) the party claiming estoppel must have been misled and have changed his position; (6) it must appear unjust to one party to permit the other to change. The courts are not altogether agreed, however, as to the application of some of these limitations.’ ” Id. at 614-15 (quoting 19 Am. Jur. Estoppel § 73, at 709).