Decided: August 01, 1997
Debra Underwood is attractive away from an overview view joined in favor of Earliest Franklin Economic Agency (“First Franklin”), Voyager Life insurance Organization (“Voyager”), and you will Joe Seals, a member of staff of Very first Franklin. This case try transferred to which courtroom by ultimate courtroom, pursuant so you can § 12-2-7(6), Ala.Code 1975.
Inside December 1992 plus April 1993, Debra Underwood along with her husband, Jesse Underwood, lent money from Earliest Franklin. In case there is a passing, the financing life insurance policies do shell out completely the debt due so you can Very first Franklin.
From inside the November 1993, the new Underwoods submitted a voluntary petition to own Chapter thirteen case of bankruptcy security, record within petition certain expenses, such as the a few loans having First Franklin. Jesse Underwood passed away in December 1994, because Underwoods remained from inside the bankruptcy. Brand new case of bankruptcy bundle try affirmed toward January eight, 1994.
2960235
To your January thirteen, 1995, Ms. Underwood registered a declare that have Very first Franklin towards the borrowing from the bank lifestyle insurance coverage proceeds from the 2 Voyager procedures http://paydayloanservice.net/payday-loans-nv/. Into the January twenty six, 1995, Voyager awarded one or two inspections so you’re able to First Franklin, purchasing professionals regarding the quantity of $1,808, as applied into the Ms. Underwood’s funds having Very first Monetary. Ms. Underwood discovered that the two guidelines had paid a sum far less than extent who would has actually fulfilled the girl loan balance with Basic Franklin. She telephoned Seals, a friend who was simply also an employee regarding Basic Franklin, to determine as to why the financing coverage continues didn’t spend in full the lady loan personal debt with Basic Franklin. Seals advised Ms. Underwood that she had received all of the proceeds she is eligible to discovered since the she and her spouse got filed to own case of bankruptcy for the November 1993. Seals next threatened in order to repossess the woman car, as borrowing coverage had not completely paid the newest fund.
To the February twenty two, 1995, Ms. Underwood registered an application getting a trouble personal bankruptcy discharge, centered on the lady partner’s death. The woman software is actually offered by personal bankruptcy legal towards April 17, 1995. The bankruptcy proceeding trustee try discharged may twenty two, 1995, therefore the Chapter thirteen continuing try signed.
Towards January dos, 1996, Ms. Underwood filed this up against First Franklin, Voyager, and you may Seals, saying says alleging con, infraction out-of contract, and crappy faith, all concerning the positives repaid because of the Voyager not as much as her insurance regulations. Very first Franklin, Voyager, and you will Seals gone for an overview wisdom, arguing your “doctrine of official estoppel” banned Ms. Underwood of getting the lady claims. New demo courtroom offered the newest motion and you can inserted a judgment within the like of defendants.
A motion to possess realization wisdom could be offered if there is zero genuine dilemma of issue facts in addition to moving people try eligible to a wisdom just like the an issue of laws. Hinkle v. Burgreen Contracting Co., 678 Therefore.2d 797 (Ala.Civ.Software.1996). Should your moving cluster renders a prima facie indicating that no genuine dilemma of issue facts exists and this is called to help you a judgment as the an issue of laws, the responsibility shifts to your nonmovant to go forward which have proof performing a real problem of issue facts. Id. So you’re able to defeat a properly served summary judgment actions, brand new nonmovant need to expose generous proof creating a real issue of situation fact. Id.
A borrower in a bankruptcy proceeding must divulge people legal actions almost certainly to arise in an effective nonbankruptcy framework. Luna v. Rule Financial away from Center Tennessee, Inc., 631 Thus.2d 917 (Ala.1993). Brand new philosophy away from official estoppel pertains to preclude a celebration out of of course, if a posture during the a legal proceeding contradictory which have a position in earlier times asserted. Id. For this reason, the doctrine prevents a debtor whom don’t disclose a declare for the a case of bankruptcy of saying the fresh allege in an excellent nonbankruptcy setting.
Leave a reply