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“mistake or inadvertent omission”. Petitioners, in their motion
in each docket, assert that there was a mistake or inadvertence.
While respondent does not agree with petitioners’ assertion,
respondent assumes in the alternative that the failure to list a
cash accumulation in the bankruptcy proceeding was due to mistake
or inadvertence and suggests that the defense is legally
insufficient.
We decline petitioners’ invitation to decide whether mistake
or inadvertence is a defense to respondent’s claim of judicial
estoppel. There appear to be genuine issues of material fact
relating to omission of a cash accumulation in the bankruptcy
matter, and concerning whether there was acceptance by the
bankruptcy court of a position of Strong inconsistent with his
position here. The application of judicial estoppel is not ripe
for decision while the factual premises are uncertain.
An appropriate order will be
issued denying petitioners’ motions
for partial summary judgment.
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Last modified: May 25, 2011