Decided: August 01, 1997
Debra Underwood is attractive of a summary judgment inserted in support of Earliest Franklin Financial Firm (“Earliest Franklin”), Voyager Life insurance policies Team (“Voyager”), and you will Joe Seals, an employee out-of Basic Franklin. This example are moved to that it court by best court, pursuant to § 12-2-7(6), Ala.Password 1975.
Into the December 1992 as well as in April 1993, Debra Underwood along with her partner, Jesse Underwood, lent money from Basic Franklin. In case of a death, the credit coverage do pay completely your debt due to Earliest Franklin.
Inside November 1993, the fresh Underwoods filed a voluntary petition having Part thirteen personal bankruptcy cover, checklist inside their petition specific bills, for instance the several finance with Very first Franklin. Jesse Underwood passed away in December 1994, given that Underwoods remained in personal bankruptcy. The new bankruptcy proceeding plan was verified on the January seven, 1994.
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On the January 13, 1995, Ms. Underwood registered a state that have Very first Franklin to your credit life insurance arises from both Voyager principles. With the January twenty six, 1995, Voyager issued one or two checks to Very first Franklin, using benefits regarding quantity of $1,808, is used to your Ms. Underwood’s funds with Basic Financial. Ms. Underwood unearthed that the 2 principles got paid back a sum much below the quantity that would enjoys satisfied her loan equilibrium with First Franklin. She telephoned Seals, a friend who was plus an employee out-of Very first Franklin, to ascertain as to the reasons the financing life insurance policies proceeds did not pay completely their loan financial obligation with Very first Franklin. Seals informed Ms. Underwood one to she had been administered the proceeds she try permitted located as she and her partner got filed for bankruptcy in November 1993. Seals then threatened so you’re able to repossess the lady car, since the borrowing from the bank insurance hadn’t fully repaid the fresh loans.
On the February twenty-two, 1995, Ms. Underwood registered an application for a difficulty case of bankruptcy launch, based on the woman husband’s demise. Their software is provided because of the bankruptcy legal for the April 17, 1995. The bankruptcy trustee are released on may twenty two, 1995, therefore the Part 13 proceeding is actually closed.
Towards the January dos, 1996, Ms. Underwood filed this step against First Franklin, Voyager, and Seals, saying says alleging swindle, violation away from contract, and you may bad trust, the relating to the masters paid off from the Voyager around the girl insurance policies. Basic Franklin, Voyager, and you may Seals went getting a synopsis view, arguing that the “doctrine away from official estoppel” blocked Ms. Underwood off pursuing their says. The fresh demo court offered the new activity and registered a judgment in like of your defendants.
A motion to have conclusion judgment can be offered when there is no legitimate issue of situation fact as well as the swinging group try permitted a judgment because a question of laws. Hinkle v. Burgreen Contracting Co., 678 Thus.2d 797 (Ala.Civ.Application.1996). In case the swinging group tends to make a prima-facie exhibiting you to no legitimate issue of point truth can be obtained and this was entitled to help you a judgment once the a question of rules, the responsibility changes towards the nonmovant to visit give having evidence doing a real problem of question fact. Id. In order to beat an adequately supported summation judgment activity, the latest nonmovant have to introduce good-sized proof starting a bona fide problem of topic facts. Id.
A borrower for the a bankruptcy proceeding have to reveal one litigation most likely to appear in a nonbankruptcy context. Luna v. Dominion Bank off Middle Tennessee, Inc., 631 Therefore.2d 917 (Ala.1993). The philosophy from judicial estoppel pertains to prevent a party off and when a situation for the a legal proceeding contradictory which have a situation prior to now asserted. Id. Ergo, the fresh philosophy prevents a debtor who didn’t divulge a state from inside the a case of bankruptcy off asserting the fresh new claim during the a nonbankruptcy means.