Concerning this type of financing, brand new Underwoods and additionally bought a couple of guidelines out-of borrowing life insurance policies from Very first Franklin and Voyager

Concerning this type of financing, brand new Underwoods and additionally bought a couple of guidelines out-of borrowing life insurance policies from Very first Franklin and Voyager

Decided: August 01, 1997

Debra Underwood is attractive from an overview judgment entered in favor of Basic Franklin Financial Agency (“Very first Franklin”), Voyager Life insurance Providers (“Voyager”), and you will Joe Seals, a worker out of Basic Franklin. This situation is actually relocated to that it court from the ultimate courtroom, pursuant so you’re able to § 12-2-7(6), Ala.Code 1975.

During the December 1992 as well as in April 1993, Debra Underwood along with her partner, Jesse Underwood, lent funds from Basic Franklin. In case of a dying, the credit coverage manage pay in full your debt due so you’re able to First Franklin.

From inside the November 1993, brand new Underwoods submitted a volunteer petition to own Part thirteen case of bankruptcy defense, listing within their petition specific expenses, such as the a few money with Basic Franklin. Jesse Underwood died within the December 1994, because Underwoods remained within the personal bankruptcy. The newest bankruptcy package are confirmed with the January 7, 1994.


Into the January 13, 1995, Ms. Underwood recorded a declare having First Franklin with the credit lives insurance proceeds from the two Voyager guidelines. Towards January twenty six, 1995, Voyager approved one or two checks to help you Earliest Franklin, purchasing advantages throughout the quantity of $step 1,808, to get applied into Ms. Underwood’s money having First Economic. Ms. Underwood unearthed that the 2 principles got paid back a sum far less than the amount who would have met her mortgage equilibrium having Basic Franklin. She telephoned Seals, a friend who had been plus a member of staff out of Earliest Franklin, to ascertain as to the reasons the credit term life insurance proceeds don’t shell out in full her financing loans which have Basic Franklin. Seals told Ms. Underwood one she had been given all of the continues she was entitled to discovered once the she along with her spouse got submitted to possess bankruptcy proceeding inside the November 1993. Seals subsequent endangered in order to repossess this lady car, since the borrowing from the bank term life insurance hadn’t fully reduced the brand new finance.

Into the February twenty-two, 1995, Ms. Underwood filed a software to own a hardship bankruptcy release, predicated on the lady husband’s passing. The lady app is actually supplied of the personal bankruptcy court toward April 17, 1995. This new personal bankruptcy trustee is released may 22, 1995, additionally the Part 13 proceeding was closed.

Into January 2, 1996, Ms. Underwood registered this task against Earliest Franklin, Voyager, and Seals, saying says alleging scam, infraction regarding offer, and you will crappy believe, all the concerning the advantages paid back of the Voyager lower than this lady insurance policies regulations. Earliest Franklin, Voyager, and Seals moved to possess a summary judgment, arguing the “philosophy out-of judicial estoppel” prohibited Ms. Underwood of seeking this lady says. The latest demonstration judge provided the action and you can joined a view into the choose of the defendants.

A movement to own bottom line view are granted if there’s no genuine problem of matter truth and the swinging cluster is actually eligible to a judgment since a matter of laws. Hinkle v. Burgreen Hiring Co., 678 Thus.2d 797 (Ala.Civ.Application.1996). In the event the swinging cluster can make a prima facie showing you to zero genuine issue of issue fact can be acquired and this try entitled so you can a wisdom since the a point of legislation, the responsibility shifts with the nonmovant to visit pass which have facts performing a real dilemma of material reality. Id. So you can overcome an adequately served realization wisdom activity, the brand new nonmovant must present nice research undertaking a bona-fide issue of issue facts. Id.

A debtor in the a bankruptcy proceeding payday loans Virginia must reveal one legal actions probably to arise in good nonbankruptcy context. Luna v. Rule Lender out-of Center Tennessee, Inc., 631 Very.2d 917 (Ala.1993). This new doctrine out-of judicial estoppel pertains to preclude a party out-of just in case a position in the a legal proceeding contradictory with the right position prior to now asserted. Id. Hence, the fresh philosophy prevents a debtor who didn’t disclose a state from inside the a bankruptcy proceeding out of asserting the fresh new allege for the a nonbankruptcy mode.