Congress codified presumed consumer debtor abuse into the Bankruptcy Code with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Since then, distrust of low- and middle-class debtors has permeated the legal system, evidenced most visibly by how easily legislators are swayed by creditor lobbyists’ rhetoric. This distrust has also reached our courts, where judges invoke the doctrine of judicial estoppel to bar debtor-plaintiffs from pursuing tort claims undisclosed in bankruptcy petitions. Instead of addressing societal problems underlying the high number of bankruptcy filings, like financial literacy and predatory lending, this Note argues that lawmakers and courts are perpetuating those same problems in the name of abuse prevention. This Note explores the circuit split regarding bankruptcy nondisclosure and judicial estoppel and proposes a shift away from applying judicial estoppel in postbankruptcy civil claims.
Overcoming the Presumption of the Deceitful Debtor,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol39/iss2/12