Molter, J.
Abigail Fricke filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court. As part of that process, federal bankruptcy law required her to disclose all her assets, including any lawsuits, and to update that disclosure with any assets she acquired later. Roughly three years later, Fricke filed this lawsuit alleging she was injured when Red Lobster’s negligence caused her to trip and fall in its restaurant. But she didn’t update her bankruptcy asset schedule until after Red Lobster moved for summary judgment based on standing and judicial estoppel.
The trial court denied Red Lobster’s summary judgment motion, and the Court of Appeals affirmed, deepening a divide between panels over two questions. First, does a plaintiff‐debtor’s omission of a lawsuit from their bankruptcy asset schedule deprive them of standing to pursue that lawsuit? Second, does their representation to the federal bankruptcy court that they don’t have any potential or pending legal claims judicially estop them from pursuing a claim in our state courts?
In Hammes v. Brumley, 659 N.E.2d 1021 (Ind. 1995), our Court established two bright line rules for Chapter 7 bankruptcies that we now extend to Chapter 13 bankruptcies. First, a plaintiff‐debtor’s omission of a lawsuit from their bankruptcy asset schedule does not deprive them of standing to pursue that lawsuit, although the omission may mean they are not the real party in interest. Second, judicial estoppel does not bar the claim if the bankruptcy court permits the plaintiff‐debtor to cure their omission by amending their asset schedule.
Those two rules don’t resolve every aspect of the split in Court of Appeals authority, but they compel us to affirm the trial court’s order here. As in Hammes, Fricke’s initial omission did not deprive her of standing. And she cured that omission by amending her asset schedule to disclose this lawsuit, so judicial estoppel does not bar her claim either.
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Red Lobster argues it is entitled to summary judgment because Fricke’s initial omission of this lawsuit from her bankruptcy asset schedule either deprives her of standing or judicially estops her from pursuing her claim. We conclude the trial court was correct to reject both arguments.
I. Fricke has standing.
Red Lobster argues that Fricke lacks standing because her personal injury claim against Red Lobster is an asset that belonged to her bankruptcy estate, not her. Fricke responds that Red Lobster waived that argument by giving it only cursory treatment in Red Lobster’s transfer petition, and the argument fails anyway because a bankruptcy debtor has standing to sue on behalf of the bankruptcy estate.
We agree with Red Lobster that it did not waive its standing argument, but we agree with Fricke that the argument fails.
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So when Fricke filed her lawsuit, she had standing to sue because she alleged “a demonstrable injury allegedly caused by” Red Lobster. Id. Even if Red Lobster was correct that she was improperly pursuing the claim on her own behalf rather than on behalf of the bankruptcy estate, that just meant she was not the real party in interest. Rather than dismissing the suit for lack of standing, the trial court would have needed to allow an opportunity to substitute the trustee as the real party in interest, with that amendment relating back to the original filing. Id.
Whether to substitute the trustee is now moot though. Fricke later disclosed this lawsuit in her bankruptcy, at which point she was properly pursuing the claim on behalf of the estate…
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II. Judicial estoppel does not bar Fricke’s personal injury lawsuit.
Red Lobster also argues the trial court should have granted its summary judgment motion because judicial estoppel bars Fricke’s claim. Again, we agree with the trial court’s decision.
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The parties here don’t grapple with these distinctions, so we must leave choosing a framework for another day, but we can again look to Hammes for a bright‐line rule that resolves this case: judicial estoppel does not apply when the bankruptcy court permits a plaintiff‐debtor to cure their omission by amending their asset schedule to include a previously omitted lawsuit. Hammes, 659 N.E.2d at 1028–29. In Hammes, we adopted the Court of Appeals’ opinion in Shewmaker v. Etter, which held that in the context of a Chapter 7 bankruptcy, judicial estoppel did not bar the plaintiff’s claim because the plaintiff “presented his omission to the bankruptcy court and was allowed to cure it.” Shewmaker v. Etter, 644 N.E.2d 922, 931 (Ind. Ct. App. 1994), opinion adopted by Hammes, 659 N.E.2d at 1030. The Court of Appeals reasoned, and we agreed, that judicial estoppel applies only when the prior inconsistent position was “acted upon by the court.” Id. And when a bankruptcy court allows the debtor to cure their previous omission, the court does “not rely upon the faulty asset schedule in making its final decision.” Id.
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In short, Fricke did not mislead the bankruptcy court and did not prevail on a position in her bankruptcy proceedings that contradicts her claim in this state court negligence action. Her representations to the bankruptcy court therefore do not judicially estop her from pursuing her personal injury claim against Red Lobster. [Footnote omitted.]
Conclusion
For these reasons, we affirm the trial court.
Rush, C.J., Massa, Slaughter, and Goff, JJ., concur.