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Harper v. GMAC Mortgage Corp.

Judicial estoppel barred the plaintiffs' tort claims against their mortgage company because the plaintiffs did not list those claims as assets in their Chapter 13 bankruptcy petition.

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In this case the debtors in their Chapter 13 bankruptcy petition statement of financial affairs listed a state court lawsuit in which they were seeking injunctive and declaratory relief. The question we are presented with is, does judicial estoppel bar that portion of the state court action setting forth tort claims for damages, where the damage claims are not listed as assets on the bankruptcy asset schedule and where the debtors do not seek to amend the bankruptcy petition to include the claims We hold it does and affirm. We further hold that the injunctive and declaratory relief claims survive, and therefore we reverse the dismissal of those claims.

Claiming Hayward and Shirley Harper defaulted on their mortgage payments, GMAC scheduled a foreclosure sale. The Harpers sued GMAC in state superior court, seeking i to enjoin GMAC from proceeding with the foreclosure on the grounds the debt had been discharged by an earlier bankruptcy and there were no arrearages, ii a declaratory judgment as to the amount of any debt due to GMAC, and iii actual and punitive damages plus attorney fees. The superior court temporarily restrained GMAC from proceeding with the foreclosure sale. When the restraining order expired and GMAC recommenced foreclosure proceedings, the Harpers filed a joint Chapter 13 bankruptcy petition, stopping the foreclosure.

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