Keathley v. Buddy Ayers Construction, Inc. · ¶23

The courts that apply judicial estoppel to claims in the bankruptcy context view the debtor’s failure to disclose a particular claim as an “implicit representation” that the claim does not exist. 18B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4477.9 (3d ed. 2019 and Supp. 2026) (collecting cases). On this view, when the debtor files a lawsuit based on that claim, he has taken inconsistent positions in the two judicial proceedings “by asserting in the civil lawsuit that he has a claim against the defendant while denying under oath in the bankruptcy proceeding that the claim exists.” Slater v. United States Steel Corp., 871 F. 3d 1174, 1176 (CA11 2017) (en banc).

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