To the this type of money, the latest Underwoods in addition to bought several rules from borrowing term life insurance away from First Franklin and you will Voyager

To the this type of money, the latest Underwoods in addition to bought several rules from borrowing term life insurance away from First Franklin and you will Voyager

Decided: August 01, 1997

Debra Underwood is attractive away from an overview judgment inserted in support of Earliest Franklin Economic Organization (“First Franklin”), Voyager Insurance Company (“Voyager”), and you will Joe Seals, an employee of Basic Franklin. This case are gone to live in this judge by ultimate court, pursuant in order to § 12-2-7(6), Ala.Code 1975.

For the December 1992 and also in April 1993, Debra Underwood and her husband, Jesse Underwood, lent funds from Earliest Franklin. In case of a death, the credit term life insurance create pay in full your debt owed to Earliest Franklin.

From inside the November 1993, the newest Underwoods submitted a volunteer petition to own Section thirteen case of bankruptcy protection, listing within their petition specific expenses, like the one or two loans having First Franklin. Jesse Underwood died during the December 1994, while the Underwoods remained in personal bankruptcy. Brand new bankruptcy package is actually verified to the January seven, 1994.


To your January 13, 1995, Ms. Underwood submitted a claim which have Very first Franklin toward borrowing lives insurance policies proceeds from both Voyager regulations. To your January twenty-six, 1995, Voyager granted a couple inspections to Very first Franklin, expenses pros about level of $1,808, is used into Ms. Underwood’s financing that have Very first Financial. Ms. Underwood found that the two regulations had reduced a sum far less than the amount that would features found her mortgage harmony that have First Franklin. She telephoned Seals, a friend who was plus an employee off Very first Franklin, to determine why the credit life insurance coverage continues did not pay completely this lady loan obligations with First Franklin. Seals advised Ms. Underwood that she had been given every proceeds she are eligible to located as she and her husband got submitted having case of bankruptcy inside the November 1993. Seals further endangered so you’re able to repossess the girl vehicles, as the credit coverage had not completely paid off the new finance.

With the March twenty two, 1995, Ms. Underwood recorded an application for a hardship bankruptcy proceeding release, according to the woman husband’s dying. The woman application are supplied from the case of bankruptcy courtroom with the April 17, 1995. The personal bankruptcy trustee was discharged on may 22, 1995, plus the Section 13 continuing try signed.

Toward January dos, 1996, Ms. Underwood submitted this action against First Franklin, Voyager, and you will Seals, saying states alleging fraud, infraction away from contract, and you may crappy trust, every relating to the pros paid back by Voyager not as much as this lady insurance coverage formula. Earliest Franklin, Voyager, and Seals moved having an overview judgment, arguing the “doctrine from official estoppel” prohibited Ms. Underwood out of getting the lady says. The newest trial court provided the activity and you will registered a view within the choose of defendants.

A movement to have bottom line judgment may be offered when there is no legitimate problem of material truth plus the swinging party are permitted a wisdom as the a matter of legislation. Hinkle v. Burgreen Contracting Co., 678 So.2d 797 (Ala.Civ.Software.1996). Should your swinging party makes a prima facie exhibiting that zero genuine problem of material facts is obtainable and that it is titled to a view given that a matter of law, the burden shifts toward nonmovant to go forward having proof doing a genuine issue of point facts. Id. In order to overcome a properly supported bottom line judgment activity, the brand new nonmovant have to introduce reasonable proof carrying out a bona-fide issue of point truth. Id.

A debtor into the a bankruptcy have to reveal one litigation likely to arise in a nonbankruptcy context. Luna v. Rule Lender away from Center Tennessee, Inc., 631 Thus.2d 917 (Ala.1993). The new philosophy regarding judicial estoppel pertains to prevent an event from of course, if the right position when you look at the a legal proceeding inconsistent with the right position in past times asserted. Id. For this reason, the new philosophy suppresses a debtor which didn’t disclose a state in the a case of bankruptcy of asserting this new claim into the a great nonbankruptcy setting.