Richards v. D. R. Horton, Inc.

MCFADDEN, Judge,

concurring in part and dissenting in part. I concur with the reversal of the trial court’s dismissal of Richards’ claims against D. R. Horton, Inc. based on a finding of abandonment by the bankruptcy trustee. I respectfully dissent to the affirmance of the trial court’s dismissal of Richards’ claims against the other defendants. We should vacate and remand for the trial court to conduct a hearing to determine whether Richards sufficiently itemized his claims to put the trustee on notice to investigate further, Donarumo v. Furlong, 660 F3d 81, 87 (1st Cir. 2011), and whether Richards had a motive to conceal the claims. Barger v. City of Cartersville, 348 F3d 1289, 1296 (C) (1) (11th Cir. 2003).

Upon the filing of a bankruptcy petition, virtually all of a debtor’s assets, both tangible and intangible, vest in the bankruptcy estate. 11 USC § 541 (a) (1) (providing that the bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case”). That property includes

causes of action belonging to the debtor at the commencement of the bankruptcy case. Thus, a trustee, as the representative of the bankruptcy estate, is the proper party in interest, and is the only party with standing to prosecute causes of action belonging to the estate. Once an asset becomes part of the bankruptcy estate, all rights held by the *778debtor in the asset are extinguished unless the asset is abandoned back to the debtor pursuant to [11USC] § 554 of the Bankruptcy Code. At the close of the bankruptcy case, property of the estate that is not abandoned under § 554 and that is not administered in the bankruptcy proceedings remains the property of the estate. Failure to list an interest on a bankruptcy schedule leaves that interest in the bankruptcy estate.

Parker v. Wendy’s Intl., 365 F3d 1268, 1272 (II) (11th Cir. 2004).

A debtor has a statutory duty to fully disclose all assets, and this is a continuing duty of complete and honest disclosure. Robinson v. Tyson Foods, 595 F3d 1269, 1274 (A) (11th Cir. 2010). “Failure to list an interest on a bankruptcy schedule leaves that interest in the bankruptcy estate,” depriving the debtor of standing to pursue that interest. Parker, 365 F3d at 1272 (II). Alternatively, a debtor who has failed to disclose claims in his bankruptcy proceeding may be judicially estopped from pursuing those claims. Burnes v. Perneo Aeroplex, 291 F3d 1282 (11th Cir. 2002).

But “[w]hile a debtor has a duty to prepare schedules carefully, completely, and accurately, . . . [a]s investigation is part of the [t]rustee’s duties ..., a debtor is required only to do enough itemizing to enable the trustee to determine whether to investigate further.” (Citations and punctuation omitted.) Donarumo, 660 F3d at 87.

There are no bright-line rules for how much itemization and specificity is required for bankruptcy schedules. What is required is reasonable particularization under the circumstances. The Official Forms themselves have generally been regarded as subject to a rule of substantial compliance. It would be silly to require a debtor to itemize every dish and fork, but every bankrupt must do enough itemizing to enable the trustee to determine whether to investigate further.

(Citations and punctuation omitted.) Kuehn v. Cadle Co., 2007 U. S. Dist. LEXIS 18387 at *13 (M.D. Fla. 2007). “[D]ebtors can list lawsuits on their bankruptcy schedules in the most general of terms, even without identifying any defendants, and still satisfy the filing requirements of § 521 (a) (1) (B) (i) and the abandonment requirements of § 554 (c).” Id. (holding that debtor who listed in bankruptcy a lawsuit naming one defendant was not barred from pursuing same lawsuit against a different defendant). See also In re Bonner, 2005 Bankr. LEXIS 1683 (BAP 6th Cir. 2005) (debtors’ scheduling of an *779asset labeled “Auto Accident Claim” without identifying any potential defendants “plainly and unambiguously included any claim that the debtors may have had for any personal injury arising out of the automobile accident”); Reciprocal Merchandising Svcs. v. All Advertising Assoc., 163 BR 689 (S.D. N.Y. 1994) (Chapter 11 debtor was not judicially estopped from pursuing claims for unjust enrichment and breach of alleged oral contract even though he failed to name the defendants or detail the nature of the claims in prior bankruptcy proceeding, where there was no evidence that debtor deliberately intended to mislead bankruptcy court or to obtain unfair advantage, and debtor did not conceal during proceedings that it had claims arising out of wrongful transfer of assets).

Here, the trial court ruled that “[t]he subject matter of [the] earlier case is identical to the matter [at hand], with the exception that [Richards] now sues additional defendants.” Given this finding, the trial court should reconsider whether Richards’ listing of his lawsuit satisfied the filing requirements of § 521 (a) (1) (B) (i) and the abandonment requirements of § 554 (c) to determine whether he has standing to pursue his action against the defendants other than D. R. Horton.

In addition to arguing that Richards lacked standing, at least one of the appellees argued that Richards’ claims are barred by judicial estoppel. “Judicial estoppel is an equitable doctrine invoked at a court’s discretion.” (Citation omitted.) Burnes, 291 F3d at 1285 (III) (A). It is “intended to be a flexible rule in which courts must take into account all of the circumstances of each case in making [their] determination^].” (Citation omitted.) Ajaka v. BrooksAmerica Mtg. Corp., 453 F3d 1339, 1344 (11th Cir. 2006). The “two primary factors in determining whether to apply judicial estoppel [are whether] the allegedly inconsistent positions [were] taken under oath in a prior proceeding, and [whether] they [were] calculated to make a mockery of the judicial system.” (Citations omitted.) Id. The court looks to see if the debtor (1) knew about the cause of action that should have been listed; and (2) had a motive to conceal the cause of action. Barger, 348 F3d at 1296 (C) (1).

It is undisputed that Richards did not list the additional defendants on his schedule. So the questions become whether his disclosure was “full enough” to put the trustee on notice to inquire further and whether he had a motive to conceal his cause of action against these defendants. As noted previously, the trial court ruled that “[t]he subject matter of [the] earlier case is identical to the matter [at hand], with the exception that [Richards] now sues additional defendants.” He made no finding about Richards’ intent. The trial court should consider these questions upon remand.

*780Decided March 26, 2013. Mark A. Richards, pro se. Leitner, Williams, Dooley & Napolitan, Craig R. Allen, Thomas O. Sippel, Jatrean M. Sanders, Waldon, Adelman, Castilla, Hiestand & Prout, Trevor G. Hiestand, Ashley G. Rice, Mozley, Finlayson & Loggins, William D. Harrison, Crim & Bassler, Jason D. Darneille, Moore, Clarke, DuVall & Rodgers, Charles J. Willcox, Freeman, Mathis & Gary, Philip W. Savrin, Hanks & Brookes, Jerald R. Hanks, Barry S. Noeltner, for appellees.

The cases upon which the majority relies are distinguishable. In Kittle v. ConAgra Poultry Co., 247 Ga. App. 102 (543 SE2d 411) (2000), Zahabiuon v. Automotive Finance Corp., 281 Ga. App. 55 (635 SE2d 342) (2006), and Sevostiyanova v. Tempest Recovery Svcs., 307 Ga. App. 868 (705 SE2d 878) (2011), we held that the plaintiffs were judicially estopped from pursuing their complaints when their claims accrued before they filed for bankruptcy yet they never listed them on any bankruptcy schedules at any time. In Cochran v. Emory Univ., 251 Ga. App. 737 (555 SE2d 96) (2001), we held that the plaintiff was judicially estopped from pursuing a medical malpractice claim when she did not list it on her bankruptcy schedule and only sought to reopen her bankruptcy to amend the schedule once the defendant was granted summary judgment on judicial estoppel grounds. In Battle v. Liberty Mut. Fire Ins. Co., 276 Ga. App. 434 (623 SE2d 541) (2005), we held that the plaintiff was judicially estopped from pursuing his claim for fire insurance benefits because he failed to list the insured property in his bankruptcy. Here, on the other hand, Richards listed the identical lawsuit on his schedule, albeit with only one of the defendants.

Whether the fact that the trustee had before her the “identical” case should have placed her on notice as to these other defendants and whether Richards had a motive to conceal the claims are questions the trial court should resolve within its discretion.

I am authorized to state that Presiding Judge Barnes joins in this opinion.