Decided: August 01, 1997
Debra Underwood is attractive out of a synopsis view joined and only Very first Franklin Financial Agency (“Basic Franklin”), Voyager Insurance Organization (“Voyager”), and you will Joe Seals, a worker away from First Franklin. This example was transferred to it judge by finest legal, pursuant to help you § 12-2-7(6), Ala.Password 1975.
Inside the December 1992 and in April 1993, Debra Underwood and her spouse, Jesse Underwood, lent money from Very first Franklin. In case of a passing, the financing term life insurance North Dakota motorcycle title loans manage pay completely your debt owed so you’re able to Very first Franklin.
In November 1993, the Underwoods submitted a volunteer petition to have Section thirteen bankruptcy cover, list within petition specific expenses, for instance the a couple fund with Very first Franklin. Jesse Underwood passed away inside December 1994, while the Underwoods were still in the bankruptcy. This new case of bankruptcy plan is actually verified toward January 7, 1994.
On the January thirteen, 1995, Ms. Underwood registered a claim with Earliest Franklin into the borrowing lives insurance policies proceeds from both Voyager principles. To your January twenty-six, 1995, Voyager awarded a couple of inspections so you’re able to First Franklin, using experts regarding amount of $step one,808, to get applied for the Ms. Underwood’s fund with Earliest Economic. Ms. Underwood found that the 2 formula had reduced an amount far less than the amount who does has actually found this lady financing balance having Basic Franklin. She telephoned Seals, a buddy who was including a member of staff off Basic Franklin, to find out as to why the credit insurance continues did not pay completely her financing debt which have Very first Franklin. Seals advised Ms. Underwood you to definitely she had been administered most of the proceeds she is actually eligible to discover given that she along with her husband got filed to possess bankruptcy from inside the November 1993. Seals after that endangered in order to repossess the woman vehicles, as the borrowing term life insurance hadn’t completely paid off brand new money.
Toward March 22, 1995, Ms. Underwood submitted a credit card applicatoin getting a difficulty bankruptcy proceeding release, considering the girl partner’s demise. This lady application is granted of the bankruptcy proceeding court on April 17, 1995. The fresh new bankruptcy proceeding trustee is actually released on 22, 1995, plus the Chapter thirteen continuing is actually signed.
Into January 2, 1996, Ms. Underwood recorded this facing Earliest Franklin, Voyager, and you will Seals, saying says alleging ripoff, infraction from contract, and you will crappy faith, all of the relating to the positives repaid of the Voyager around their insurance rates regulations. Earliest Franklin, Voyager, and Seals went for an overview view, arguing your “doctrine away from official estoppel” blocked Ms. Underwood regarding searching for the girl says. The fresh new demo judge offered this new action and you may entered a view from inside the prefer of the defendants.
A motion to have summary wisdom is granted if there is zero genuine issue of question reality additionally the moving group try entitled to a view as a question of laws. Hinkle v. Burgreen Employing Co., 678 Very.2d 797 (Ala.Civ.Application.1996). If your swinging team can make a prima-facie indicating one no legitimate problem of situation truth can be found and this is named to a wisdom since the a matter of laws, the burden shifts to the nonmovant commit send with evidence performing a genuine issue of material fact. Id. In order to overcome an adequately offered summation view action, new nonmovant have to present good evidence starting a genuine issue of question reality. Id.
A borrower when you look at the a bankruptcy must reveal one legal actions probably to appear in an effective nonbankruptcy context. Luna v. Rule Bank out of Center Tennessee, Inc., 631 Thus.2d 917 (Ala.1993). New doctrine out of judicial estoppel pertains to preclude a party out of incase the right position into the a court case inconsistent having a posture before asserted. Id. Thus, the fresh new doctrine prevents a debtor which don’t reveal a state inside a case of bankruptcy regarding asserting the brand new claim inside the a good nonbankruptcy mode.