In a recent court decision out of the District Court for the Middle District of Florida, Suszko v. Specialized Loan Servicing (“SLS”), the court considered a consumer’s motion to strike the affirmative defenses raised by a debt collector in an action under the FDCPA and other consumer protection statutes.  Suszko had sued SLS for alleged unlawful debt collection practices.  SLS raised a number of affirmative defenses, including that Suszko was “judicially estopped from bringing this cause of action because he failed to update his bankruptcy schedule to reflect his pending claim.”  Apparently, Suszko had an ongoing Chapter 13 bankruptcy case.  In considering Suszko’s motion to strike affirmative defenses, the court held that, “Failure to timely amend a Chapter 13 reorganization plan to reflect a pending claim while pursuing that claim in another court of law constitutes inconsistent positions under oath, and is not permitted.  Therefore, the defense of judicial estoppel is sufficient and stand.”

A Chapter 13 debtor now potentially has another burden of amending schedules and a plan that they need to be aware of or they can be potentially denied access to other courts on FDCPA claims.

 

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