                                                                            FILED
                           NOT FOR PUBLICATION                               MAR 19 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GEORGE G. BENETATOS,                             No. 08-17648

             Plaintiff - Appellant,              D.C. No. 4:06-cv-06819-SBA
 and

                                                                     *
CHOULOS, CHOULOS & WYLE, LLC,                    MEMORANDUM

             Plaintiff,
  v.

HELLENIC REPUBLIC,

             Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                      Argued and Submitted March 12, 2010
                            San Francisco, California

Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.

       Benetatos appeals from the district court’s judgment on the pleadings, which

deemed his claims against the Hellenic Republic barred by the doctrine of judicial

        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
estoppel. We review the district court’s application of judicial estoppel to the facts

of this case for abuse of discretion, Hamilton v. State Farm Fire & Cas. Co., 270

F.3d 778, 782 (9th Cir. 2001), and we affirm.

      Benetatos, an attorney, filed a Chapter 13 bankruptcy petition on April 22,

2004. He filed the required schedules of assets and debts on May 27, 2004, but

disclosed no claim against the Hellenic Republic. Benetatos filed a First Amended

Chapter 13 Plan and schedules on July 12, 2004. Again, no claim against the

Republic was disclosed. “In the bankruptcy context, a party is judicially estopped

from asserting a cause of action not raised in a reorganization plan or otherwise

mentioned in the debtor’s schedules or disclosure statements.” Id. at 783; see also

Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir. 1992).

Bentatos raises two contentions.

      Benetatos first argues that the district court failed to weigh “countervailing

equitable considerations.” When reviewing for abuse of discretion, as here, we

will reverse only if we hold a “definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it reached upon a weighing

of the relevant factors.” Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir. 1996).

The district court did not abuse its discretion in its assessment of the factors

concerning judicial estoppel, because Benetatos’s position in this action is clearly

inconsistent with his earlier position, and he achieved success in the prior
proceeding by obtaining plan confirmation and a bankruptcy discharge. See New

Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (setting forth commonly

considered factors in judicial estoppel determinations); Hamilton, 270 F.3d at 784

(in bankruptcy context, failure to disclose an asset is a prior inconsistent position);

An-Tze Cheng v. K & S Diversified Invs., Inc. (In re An-Tze Cheng), 308 B.R. 448,

453-54 (B.A.P. 9th Cir. 2004) (plan confirmation and discharge may qualify as

acceptance of the accuracy of schedules for judicial estoppel purposes).

      As to his second contention, regarding those fees and costs allegedly

incurred post-petition, Benetatos argues that he was under no duty to disclose these

receivables. But, the claim for post-petition fees was, and remains, property of the

Chapter 13 estate. 11 U.S.C. §§ 541, 1306. In Hamilton, we invoked judicial

estoppel to bar a debtor from proceeding on a cause of action where the debtor

“fail[ed] to amend his schedules or disclosure statements to identify the cause of

action as a contingent asset.” 270 F.3d at 784. Benetatos’s contention is at odds

with his duty of disclosure.

      AFFIRMED.
