To the these types of funds, new Underwoods and additionally bought several procedures of credit term life insurance from Very first Franklin and you can Voyager

To the these types of funds, new Underwoods and additionally bought several procedures of credit term life insurance from Very first Franklin and you can Voyager

Decided: August 01, 1997

Debra Underwood is attractive out-of an overview view joined and only Very first Franklin Financial Organization (“Earliest Franklin”), Voyager Life insurance policies Company (“Voyager”), and you may Joe Seals, a worker out of Earliest Franklin. This case was gone to live in that it legal by best legal, pursuant to help you § 12-2-7(6), Ala.Code 1975.

Inside the December 1992 plus in April 1993, Debra Underwood and her partner, Jesse Underwood, borrowed funds from Basic Franklin. In case of a dying, the financing life insurance coverage create pay in full the debt due so you’re able to Very first Franklin.

From inside the November 1993, this new Underwoods filed a volunteer petition having Part thirteen case of bankruptcy cover, list in their petition certain costs, including the several funds which have Very first Franklin. Jesse Underwood passed away in December 1994, as the Underwoods were still inside the case of bankruptcy. Brand new bankruptcy package is actually affirmed to your January eight, 1994.

On the January thirteen, 1995, Ms. Underwood filed a claim having Very first Franklin into borrowing existence insurance arises from the 2 Voyager policies. Towards the January 26, 1995, Voyager awarded one or two inspections to help you Earliest Franklin, expenses benefits from the amount of $step one,808, getting used into Ms. Underwood’s money with Earliest Monetary. Ms. Underwood learned that the two procedures had paid back a sum far lower than extent who does has satisfied her mortgage equilibrium with Very first Franklin. She telephoned Seals, a buddy who had been including an employee off First Franklin, to determine why the financing insurance proceeds don’t shell out entirely this lady mortgage debt that have Earliest Franklin. Seals told Ms. Underwood you to definitely she had been given all of the proceeds she is permitted receive as the she along with her husband had recorded getting bankruptcy when you look at the November 1993. Seals next endangered in order to repossess the lady vehicles, given that borrowing from the bank term life insurance had not totally paid back new money.


On the March twenty two, 1995, Ms. Underwood submitted a loan application to own a hardship case of bankruptcy discharge, according to her partner’s demise. Her application are provided from the bankruptcy proceeding legal into April 17, 1995. This new bankruptcy proceeding trustee try discharged may twenty two, 1995, while the Section 13 continuing are signed.

On January 2, 1996, Ms. Underwood filed this step facing First Franklin, Voyager, and you will Seals, asserting states alleging con, infraction of deal, and you can bad trust, most of the concerning the benefits paid of the Voyager less than the woman insurance guidelines. First Franklin, Voyager, and you can Seals went to own a synopsis judgment, arguing that “doctrine regarding official estoppel” banned Ms. Underwood away from getting the lady states. The fresh new trial court granted the fresh new actions and you can inserted a view inside favor of your own defendants.

A motion to have conclusion wisdom could be offered when there is no legitimate problem of question reality therefore the moving cluster is actually eligible to a view just like the an issue of rules. Hinkle v. Burgreen Contracting Co., 678 So.2d 797 (Ala.Civ.App.1996). If for example the moving people renders a prima facie showing one no genuine issue of topic fact is obtainable and that it was called to help you a view because a matter of legislation, the responsibility shifts with the nonmovant commit pass which have evidence carrying out a bona-fide problem of situation facts. Id. So you’re able to beat an adequately offered bottom line judgment motion, the latest nonmovant need to establish ample facts undertaking a real problem of situation reality. Id.

A borrower within the a personal bankruptcy have to reveal one litigation more than likely to arise in an excellent nonbankruptcy context. Luna v. Rule Financial out-of Middle Tennessee, Inc., 631 Very.2d 917 (Ala.1993). This new philosophy out of judicial estoppel relates to prevent a party regarding if in case a position in the a court case inconsistent which have a position in the past asserted. Id. Therefore, new doctrine suppresses a borrower which don’t reveal a claim for the a case of bankruptcy out-of asserting brand new allege in a beneficial nonbankruptcy mode.

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