Concurring.
I join Judge Perris’ opinion, thereby making it the majority decision. While I agree that the Ninth Circuit decisions, which are unquestionably in disarray, permit a distinction based on whether the underlying lawsuit on the prepetition cause of action was filed before or after bankruptcy, I worry that this distinction lacks a principled difference.
I write separately to explain that there is an alternative, more-satisfying analysis for harmonizing Abercrombie, Kadjevich, and Siegel. The disadvantage of that analysis is that it requires Siegel to be construed as meaning something other than what it appears to say. I will, nevertheless, set it forth for the benefit of future litigants and for potential consideration the next time the court of appeals encounters the issue.
The bottom line is that Siegel is a classic example of a correct result reached for the wrong reason. The decision originated with a district judge who correctly recognized something rotten about what Mr. Siegel was doing but who did not have the benefit of the view of a bankruptcy judge who would have had the opportunity to point out that there was a simple and direct bankruptcy law solution to the problem.
The simple answer is that Siegel was a proper response to misconduct and should be limited to misconduct situations that warrant departure from the general rule stated in Abercrombie. Specifically, Mr. Siegel did not have standing to prosecute the unscheduled lender liability action because it was property of the bankruptcy estate (even after the case closed). The fee award against him could be affirmed on theories of judicial estoppel and inherent-authority sanctions for intermeddling with a cause of action that he did not own.
I
At the outset, it is worth noting that the underlying issue of how to treat postpetition litigation expenses on prepetition causes of action is one of those situations in which it is more important that there be one rule consistently applied than whether the merits of the particular rule are beyond cavil. All sides of the question have merit. In the absence of a definitive ruling or statutory clarification, argument could continue in perpetuity without getting closer to resolution.
Once the legal world knows whether postpetition litigation expenses will be *618treated as prepetition or postpetition debts, litigants can take the known rule into account as they go about making litigation decisions.
II
As the majority opinion notes, the Ninth Circuit is inconsistent regarding pre- or postpetition status for postpetition expenses of pursuing prepetition affirmative claims.
The bankruptcy appellate panel originally came down on what is now Rockwell’s side and concluded that postpetition litigation fee awards against a trustee on prepetition causes of action should be deemed to be postpetition. Irmas Family Trust v. Madden (In re Madden), 185 B.R. 815, 819 (9th Cir. BAP 1995).
Our Madden decision, however, was expressly disapproved by the Ninth Circuit in Abercrombie, which adopted the opposite position on the identical issue holding that the key inquiry is whether the expense was rooted in the prepetition past. Abercrombie, 139 F.3d at 757-59.
The problem arose six weeks after Abercrombie when, in Siegel, another panel of the Ninth Circuit ignored Abercrombie and cited the by-then renounced Madden decision to support its holding that a fee award against a debtor under a prepetition contract for postpetition litigation activity on a prepetition cause of action sounding in contract and tort is a postpetition obligation not encompassed by the bankruptcy discharge.
The Siegel panel ruled that the prepetition past was not controlling and that postpetition litigation conduct was not the maturation of a prepetition contingent attorney’s fee claim under the prepetition contract. Siegel, 143 F.3d at 531-34.
Ill
The obvious difference between the apparently inconsistent decisions is the identity of the person who prosecuted the prepetition cause of action postpetition. In Abercrombie, it was the trustee; in Kadjevich, it was a creditor complaining about what the debtor did postpetition; and in Siegel, it was the debtor (.Madden involved a chapter 11 debtor performing the duties of the trustee). I do not think, however, that the identity of plaintiff is a distinction that should make a difference.
A
The bankruptcy estate that comes into being when the case is filed includes all of the debtor’s interests in property, including intangible causes of action. The bankruptcy trustee is entitled to prosecute any such cause of action. Fed. R. Bankr. P. 6009.7 The trustee can also abandon the cause of action to the debtor as being of inconsequential value and benefit to the estate. 11 U.S.C. § 554(a). Nor is it uncommon for a trustee, especially where part of a recovery would be exempt, to agree to a joint litigation or judgment-sharing arrangement whereby the debtor prosecutes the action and shares proceeds with the estate for the benefit of creditors. Thus, the trustee is permitted to employ a debtor’s lawyer. 11 U.S.C. § 327(e).8
*619In short, the structure of the Bankruptcy Code contemplates that a prepetition cause of action may be prosecuted by trustee, by debtor (with permission), or by both.
If the same cause of action can be prosecuted by trustee, debtor, or both, then any rule that differentiates between them as to treatment of fee and cost awards would create incentives to manipulate and structure these arrangements in ways that could be inefficient or counterproductive for other reasons.
B
The Bankruptcy Code does not expressly answer the problem of how the fee and cost award is to be treated.
1
If our view in Madden had not been rejected in Abercrombie, then fee and cost awards for postpetition litigation would be chargeable as postpetition matters both to debtor and trustee. If chargeable to the debtor, the consequence may nevertheless be that the debt is discharged.
The rule fixed by Abercrombie, however, for better or worse is that pre- or postpetition status of postpetition fee and cost awards turns upon whether the “source” of the underlying obligation is pre- or postpetition.
The Ninth Circuit has consistently applied this “source-of-the-obligation” analysis in a variety of contexts to determine whether an expense incurred postpetition should be treated as prepetition. Einstein/Noah Bagel Corp. v. Smith (In re BCE West, L.P.), 319 F.3d 1166, 1172-73 (9th Cir.2003); Kadjevich, 220 F.3d at 1020; Microsoft Corp. v. DAK Indus., Inc. (In re DAK Indus., Inc.), 66 F.3d 1091, 1095-96 (9th Cir.1995).
Thus, the source-of-obligation analysis, which is inherently inconsistent with Siegel, now seems well established.
2
Siegel, which was decided six weeks after Abercrombie, ignored the contrary analysis in Abercrombie and DAK Industries (it did not even mention them) and reasoned that even though the contract provision on which the attorney’s fee award was ultimately based was prepetition, the award was not a prepetition claim because limits on “provable” claims make it too remote to be viewed as contingent. Siegel, 143 F.3d at 532-33.
The first problem with Siegel is its use of the obsolete premise that some claims are “provable” and others are “unprovable” as a basis for analyzing the concept of a contingent claim under Bankruptcy Code § 101(5) as limited and not extending to postpetition attorney’s fees occasioned by the debtor’s postpetition litigation activity on the prepetition contract. In doing so, it cited decisions under the old 1898 Bankruptcy Act.
In the 1978 enactment of what is now § 101(5), Congress renounced the concept of “provability” in favor of what it described as “the broadest possible definition” of claim that would include “all legal obligations of the debtor, no matter how remote or contingent.”9 Thus, Siegel’s premise was obsolete.
*620A second problem with Siegel is that, although it says that the postpetition attorney’s fees based on the prepetition contract are not contingent claims, Abercrombie makes clear that they would be deemed contingent prepetition claims if the trustee, instead of the debtor, had prosecuted the action in question. That distinction should not make a difference.
Third, Siegel relies upon our earlier Madden analysis even though another Ninth Circuit panel had squarely rejected Madden six weeks earlier in Abercrombie. More recently, the Abercrombie source-of-obligation analysis was followed in Kadjevich.
In short, it is debatable whether Siegel is sufficiently authoritative as to justify a refusal to follow Abercrombie.
IV
While the precise reasoning stated in Siegel presents the problems described, Siegel can be harmonized with the decision in the Abercrombie and Kadjevich line.
Siegel is eminently correct when it is understood as a judicial estoppel or inherent-authority sanctions decision.
It is plain that the Ninth Circuit’s Siegel panel had equity in mind when it expressed the sense that something was rotten and inequitable about the way the debtor had attempted to use the prepetition contract as a weapon: “It is perfectly just, and within the purposes of bankruptcy, to allow the same weapon to be used against him.” Siegel, 143 F.3d at 533. I agree and can provide a more precise bankruptcy law explanation of the problem.
A
The bankruptcy law explanation of what was rotten about Mr. Siegel prosecuting the cause of action begins with his omission to schedule his prepetition contract and tort causes of action as assets on his bankruptcy schedules. This violated 11 U.S.C. § 521(1) and probably violated 18 U.S.C. §§ 152(1)-(2).
As a matter of law, the causes of action were “property of the estate” notwithstanding that they were not scheduled. 11 U.S.C. § 541(a). Property of the estate is protected by the automatic stay so long as it remains property of the estate. 11 U.S.C. § 362(c)(1). Property of the estate that is not scheduled and that is not administered by the trustee remains property of the estate after the case is closed— i.e., forever. 11 U.S.C. § 554(d); Alary Corp. v. Sims (In re Associated Vintage Group, Inc.), 283 B.R. 549, 566 n. 14 (9th Cir. BAP 2002).
Mr. Siegel exercised dominion over causes of action that were property of the estate by suing in state court. This violated the automatic stay because suing to *621obtain judgment on the estate’s causes of action is an act to obtain possession of property of the estate.10 11 U.S.C. § 362(a)(3).
When the action was removed to federal district court and dismissed with the fee award that was subsequently affirmed in the Siegel decision, the dismissal was predicated on a res judicata theory that is problematic.11 The rationale was that Mr. Siegel had not objected to the claim that the defendant had filed in the bankruptcy case.
The real problem facing the district court was that Mr. Siegel had no authority to prosecute the action in the first place. He was not the real party in interest, lacked standing to act without permission from the bankruptcy court and trustee, and had committed some stark (potentially criminal) violations of bankruptcy law, all of which adds up to serious misconduct.
In order to deal correctly with the situation on the merits, the bankruptcy trustee would have had to have been made a party. If the bankruptcy case had been closed, it would have had to be reopened with an order directing the appointment of a trustee who could then deal with the property of the estate. Associated Vintage Group, 283 B.R. at 549 n. 14; In re Mahan, 104 B.R. 300, 300-01 (Bankr.E.D.Cal.1989). To the extent the causes of action may have merit, the trustee would be free to prosecute them on behalf of the estate for the benefit of creditors.
*622The district court had a number of tools in the toolbox for dealing with Mr. Siegel, and, if it used the wrong tool, the court of appeals was nevertheless entitled to affirm for a reason supported by the record. 28 U.S.C. § 2111; FED. R. CIV. P. 61; Dittman v. California, 191 F.3d 1020, 1027 n. 3 (9th Cir.1999).
B
One tool for dealing with the type of a transcendent and pervasive violation of the litigation process involved in Mr. Siegel’s misconduct, which qualifies as “bad faith” by any measure, is the court’s inherent sanctioning authority under Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).
The attorney’s fees incurred in defending against the debtor’s bad-faith attempt to control property of the estate constitute the precise remedy authorized by Chambers. Id.
Nor would an attorney’s fee award for bad-faith litigation conduct be deemed a prepetition debt under Abercrombie, which decision recognized a limited exception to its rule of prepetition treatment of postpetition expenses on prepetition causes of action. This is the so-called Reading exception originally fashioned by the Supreme Court, whereby postpetition or administrative priority treatment, for example, is afforded on account of a postpetition tort or where a business is operated postpetition in violation of nonbankruptcy law and an injunction. Abercrombie, 139 F.3d at 758, citing Reading v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968), and Spunt v. Charlesbank Laundry, Inc. (In re Charlesbank Laundry, Inc.), 755 F.2d 200 (1st Cir.1985).
In Abercrombie, the Ninth Circuit declined to apply the Reading exception to the postpetition choice of the debtor-in-possession to continue litigation that had started prepetition. 139 F.3d at 758-59, adopting Woburn Assocs. v. Kahn (In re Hemingway Transp., Inc.), 954 F.2d 1, 7 (1st Cir.1992). In other words, the Abercrombie panel was holding that the trustee, a debtor performing the duties of the trustee, or a debtor acting with permission of bankruptcy court and trustee are insulated from the Reading exception because these situations do not involve failures to comply with the Bankruptcy Code.
Mr. Siegel, in contrast, was acting in stark violation of bankruptcy law without any conceivably legitimate justification for his conduct. Sanctions for such bad-faith postpetition litigation misconduct should receive the same treatment as postpetition tort and postpetition violations of law.
Hence, the district court’s award in Siegel plainly qualified for the Reading exception and could, consistent with Abercrombie, have been affirmed on that basis.
C
Another device that the Ninth Circuit could have pressed into service as a way to affirm in Siegel is the equitable doctrine of judicial estoppel.
One form of the doctrine of judicial estoppel is the so-called “preclusion of inconsistent positions.” New Hampshire v. Maine, 532 U.S. 742, 749-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782-85 (9th Cir.2001); Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01 (9th Cir.1996); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990); 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4477 (2002).
In this circuit, the first inconsistent position must have been “accepted” by the court, which may be satisfied by implied *623“acceptance” of a debtor’s schedules reflected by the issuance of a bankruptcy discharge, even if that discharge is later revoked. Hamilton, 270 F.3d at 783-84.
Siegel presented two inconsistent prior positions. First, failure to have scheduled the causes of action was a representation that they did not exist, which position was “accepted” by the bankruptcy court when the discharge was entered. Second, when he sued on the causes of action, Mr. Siegel took the position that the contract remained in effect, which position was “accepted” when the district court proceeded to deal with the merits by way of resolving the affirmative defense of claim preclusion. When he later contended that he had no liability under the contractual attorney’s fee provision, he could have been judicially estopped from denying that liability.
Thus, Siegel can be understood a judicial estoppel case.
V
It follows from the foregoing harmonization of Siegel that Abercrombie continues to state the law of the circuit on prepetition/postpetition status of postpetition litigation expenses incurred in prosecuting prepetition causes of action. Siegel should be viewed as representing a version of the limited Reading exception to the general rule established in Abercrombie.
The fact that Ybarra initially omitted to schedule the cause of action against Rockwell and did not schedule it until the case converted to chapter 7 does not rise to the level of misconduct that would warrant application of the Reading exception.
The bankruptcy court held in 1998 that the facts surrounding Ybarra’s initial failure to schedule the asset did not warrant rejection of her claim of exemption in the cause of action. The decision overruling the objection to claim of exemption is final and preclusive of the misconduct issue actually litigated therein. If Ybarra’s missteps were not sufficiently egregious to warrant stripping her of her claim of exemption, they similarly do not rise to the level to qualify for the Reading exception.
Under this view, the bankruptcy court based its decision on the erroneous premise that Siegel reflects a general rule. While I have no quarrel with the logic of the bankruptcy court’s analysis (which reached the same conclusion as our prior panel reached in Madden) of the merits of this intractable issue, the fact is that the Ninth Circuit fixed a contrary rule in Abercrombie as law of the circuit.
As noted, it is more important in this instance that there be a discernable rule on which litigants can predicate their strategies, than that the rule be compellingly correct. I submit that the optimal harmonization would be to hold that Abercrombie controls as stating the general rule and that Siegel merely states a misconduct-oriented version of the limited Reading exception that does not apply to the facts of this case.
. Rule 6009 provides:
With or without court approval, the trustee or debtor in possession may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal.
Fed. R. Bankr. P. 6009.
. The section provides:
(e) The trustee, with the court’s approval, may employ, for a specified special purpose, other than to represent the trustee in *619conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed.
11 U.S.C. § 327(e).
. The House and Senate committee reports explain the new concept of "claim” at 11 U.S.C. § 101(5) [originally § 101(4)]:
Paragraph (4) defines "claim." The effect of the definition is a significant depar*620ture from present law. Under present law, "claim” is not defined in straight bankruptcy. Instead it is simply used, along with the concept of provability in section 63 of the Bankruptcy Act, to limit the kinds of obligations that are payable in a bankruptcy case. The term is defined in the debtor rehabilitation chapters of present law far more broadly. The definition in paragraph (4) adopts an even broader definition of claim [than] is found in the present debtor rehabilitation chapters.... By this broadest possible definition, and by the use of the term throughout title 11, especially in sub-chapter I of chapter 5, the bill contemplates that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case. It permits the broadest possible relief in the bankruptcy court.
H.Rep. No. 95-595, p. 309 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5963, 6266; S. Rep. No 95-989, pp. 21-22 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5087-88 (emphasis supplied).
. Likewise, one could argue that the district court’s dismissal of the action was void as a violation of the automatic stay. Schwartz v. United States (In re Schwartz), 954 F.2d 569, 574 (9th Cir.1992); Associated Vintage Group, 283 B.R. at 566 n. 14.
. The res judicata analysis was that a proof of claim will be afforded claim preclusive effect so as to preclude all potential counterclaims if nobody objects to the proof of claim. The puzzle is that the statutory claims structure contemplates a summary procedure that may be resolved without evidentiary hearings but as to which the bankruptcy court has discretion in any particular situation to require be resolved by way of actual trial. A trustee is not required to examine and object to claims unless "a purpose would be served.” 11 U.S.C. §§ 704(5), 1106(a)(1), 1202(b)(1), & 1302(b)(1). Whether the debtor has standing to object to claims depends upon whether the debtor would be "adversely and pecuniarily affected” if the claim were to be allowed. In the typical "no-asset” chapter 7 case there is no distribution that will be made to creditors and no reason to examine or challenge claims. As it appears that Siegel was a no-asset situation, the rationale for applying claim preclusion is debatable because the trustee had no obligation to examine and object to the claim of Federal Home Loan Bank Board and the debtor’s standing to object was doubtful.
The Siegel panel did not explore whether any of the standard exceptions to claim preclusion apply, two of which, as set out in the Restatement (Second) of Judgments are particularly pertinent:
§ 26 Exceptions to the General Rule Concerning Splitting
(1) When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant;
(c) The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief; or
(d) The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the plaintiff should be permitted to split his claim;
Restatement (Second) of Judgments § 26(l)(c)-(d).