UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-20775
IN THE MATTER OF: CHERRY C DAVIS, Debtor
- - - - - - - - - - - - - - - - - - -
DEBBIE FEZLER, Administratrix of the Estate of RICHARD D FEZLER,
Deceased,
Appellant,
VERSUS
CHERRY C DAVIS,
Appellee.
Appeal from the United States District Court
For the Southern District of Texas, Houston Division
October 27, 1999
Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This appeal arises from the dismissal of Appellant’s complaint
objecting to the Chapter 7 discharge of Texas wrongful death claims
against Appellee. The district court decided that Appellant, as
Administratrix of the decedent’s estate, lacked standing under the
Bankruptcy Code to object to the discharge. For the reasons
assigned, we conclude that Appellant enjoyed the requisite
standing, and, accordingly, we reverse and remand.
1
I. FACTS AND PROCEDURAL HISTORY
In January 1990, Cherry C. Davis (Debtor) shot and killed her
husband, Richard D. Fezler (Decedent). Debbie Fezler, daughter of
the decedent and Administratrix of his estate, filed a wrongful
death claim in Texas State Court. Under the Texas wrongful death
statute, Ms. Fezler, as Administratrix, was required to bring and
prosecute the action because none of the children and parents of
the deceased began such an action within three months after the
decedent’s death.1 On March 2, 1995, the Debtor commenced Chapter
7 Bankruptcy proceedings. Debbie Fezler, in her capacity as
Administratrix, filed an Adversary Complaint in the Bankruptcy
Court objecting to the dischargeability of debts owing to the
wrongful death beneficiaries. In the complaint’s caption only Ms.
Fezler, as Administratrix, was named as plaintiff. However, within
the body of the complaint all wrongful death beneficiaries were so
named: Debbie Fezler (daughter); Susan Fezler (daughter); Thomas
Fezler (son); Allyson Fezler (daughter); Wayne Fezler (father);
1
Tex. Civ. Prac. & Rem. § 71.004 provides:
(a) An action to recover damages as provided by this subchapter is
for the exclusive benefit of the surviving spouse, children, and
parents of the deceased.
(b) The surviving spouse, children, and parents of the deceased may
bring the action or one or more of those individuals may bring the
action for the benefit of all.
(c) If none of the individuals entitled to bring an action have
begun the action within three calendar months after the death of
the injured individual, his executor or administrator shall bring
and prosecute the action unless requested not to by all those
individuals (emphasis added).
2
Hazel Fezler (mother). Ms. Fezler based the objection upon the
Debtor’s willful and malicious acts which, as provided in 11 U.S.C.
§ 523(A)(6), are not dischargeable.
On May 18, 1995, the Debtor filed an original answer to the
complaint to determine the dischargeability of debts. On June 30,
1995, the Debtor received a discharge of all debts. The district
court withdrew the bankruptcy reference on July 28, 1995. The
Debtor, on March 18, 1998, filed an amended answer to the complaint
to determine dischargeability of debts and a motion for summary
judgment alleging that as Administratrix, Debbie Fezler lacked
standing to bring a complaint objecting to the discharge. The
motion was predicated upon 11 U.S.C. § 523(c)(1) alleging that Ms.
Fezler, in that capacity, was not a “creditor to whom payment is
owed” and, therefore, not a real party in interest. Ms. Fezler
filed an answer to the motion for summary judgment asserting that
as Administratrix she had standing to bring the nondischargeability
complaint and praying alternatively for an opportunity to join the
wrongful death beneficiaries as proper party plaintiffs under
Federal Rule of Civil Procedure 17(a). The district court, on
August 6, 1998, granted summary judgment for the Debtor and issued
a “take nothing” final judgment. In so doing, the district court
concluded that Ms. Fezler, as Administratrix, was not a creditor of
the Debtor and thus not a proper party plaintiff to bring the
nondischargeability complaint. The district court also denied Ms.
Fezler’s plea for joinder as untimely and for the reason that Rule
3
17(a) was inapplicable in that context because the initial
plaintiff was not one to whom the Debtor owed a debt.2
Ms. Fezler appealed and argues that as Administratrix she has
capacity to bring the complaint and, alternatively, that Rule 17(a)
required the district court to allow her a reasonable time to amend
the complaint to join the wrongful death beneficiaries as proper
party plaintiffs. We conclude that Ms. Fezler has standing to
bring the nondischargeability complaint as Administratrix, reverse
the dismissal, and remand for further proceedings. Consequently,
we need not reach or consider the possible application of the
ratification and joinder provisions of Rule 17(a).
II. DISCUSSION
We review the district court’s summary judgment de novo. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1451 (5th Cir.
2
Fed.R.Civ.P. 17(a) provides: Real Party in Interest. Every
action shall be prosecuted in the name of the real party in
interest. An executor, administrator, guardian, bailee, trustee of
an express trust, a party with whom or in whose name a contract has
been made for the benefit of another, or a party authorized by
statute may sue in that person’s own name without joining the party
for whose benefit the action is brought; and when a statute of the
United States so provides, an action for the use or benefit of
another shall be brought in the name of the United States. No
action shall be dismissed on the ground that it is not prosecuted
in the name of the real party in interest until a reasonable time
has been allowed after objection for ratification of commencement
of the action by, or joinder or substitution of, the real party in
interest; and such ratification, joinder, or substitution shall
have the same effect as if the action had been commenced in the
name of the real party in interest (emphasis added).
4
1995). This appeal presents an issue of law -- whether, as
Administratrix, Ms. Fezler has standing to object to the discharge
of the Debtor’s wrongful death debts.
Exceptions to discharge should be construed in favor of
debtors in accordance with the principle that provisions dealing
with this subject are remedial in nature and are designed to give
a fresh start to debtors unhampered by pre-existing financial
burdens. See Lines v. Frederick, 400 U.S. 18, 19 (1970); Gleason v.
Thaw, 236 U.S. 558, 562 (1915); 4 Collier on Bankruptcy, ¶ 523.05
at 523-20. However, bankruptcy courts are not to be used as “a
haven for wrongdoers.” In re DeFelice, 77 B.R. 376, 378 (Bankr. D.
Conn. 1987)(citing In re Berry Estates, 812 F.2d 67, 71 (2d Cir.
1987)(in turn citing In re Flight Transp. Corp. Securities
Litigation, 730 F.2d 1128, 1136-37 (8th Cir. 1984), cert. denied,
469 U.S. 1207 (1985); In re Teltronics, Ltd., 649 F.2d 1236, 1239-
42 (7th Cir. 1981)); 3 Collier on Bankruptcy, ¶ 362.05[1] at 362-
47) (bankruptcy is not a means of sheltering debtors from the
consequences of their criminal acts). Rather, “[o]ne of the
primary purposes of the Bankruptcy Act is to ‘relieve the honest
debtor from the weight of oppressive indebtedness and permit him to
start afresh . . . .’” Local Loan Co. v. Hunt, 292 U.S. 234, 244
(1934) (citing Williams v. U.S. Fidelity & Guaranty Co., 236 U.S.
549, 554-55 (1915)); see also 1 Epstein, Nickles & White,
Bankruptcy § 1-4, p.7 (1992)(citing Local Loan Co. v. Hunt, 292
U.S. at 244); Weintraub & Resnick, Bankruptcy Law Manual § 1.02
5
(4th ed. 1996)(there are many caveats which must be carefully
considered by the debtor before plunging into bankruptcy to pursue
complete forgiveness of all debts with little or no cost or
obligation). This purpose is a matter of both public and private
interest as it gives to the “honest but unfortunate debtor” who
surrenders his property a new opportunity in life unhampered by
pre-existing debt. Local Loan Co., 292 U.S. at 244 (citations
omitted).
Moreover, bankruptcy and state law are accommodated by a
judicially created concept of deference to state policies that do
not conflict with federal law. See Kelly v. Robinson, 479 U.S. 36,
49 (1986) (concerns for federalism must influence interpretation of
the Bankruptcy Code); Midlantic Nat’l Bank v. New Jersey Dep’t of
Environmental Protection, 474 U.S. 494, 505-07 (1986) (Congress did
not intend by the Bankruptcy Code for the trustee’s abandonment
power to abrogate state and local laws reasonably designed to
protect public health and safety).
Section 523(c)(1) provides that, subject to an exception not
pertinent to this appeal, “the debtor shall be discharged from a
debt [for willful and malicious injury], unless, on request of the
creditor to whom such debt is owed, and after notice and a hearing,
the court determines such debt to be excepted from discharge.” 11
U.S.C. § 523(c)(1). Ms. Fezler’s adversarial complaint objecting
to discharge is premised upon 11 U.S.C. § 523(a)(6): “A discharge
6
under [chapter 7] of this title does not discharge an individual
debtor from any debt . . . for willful and malicious injury by the
debtor to another entity or to the property of another entity.”
The Debtor relies upon § 523(c)(1) in arguing that Ms. Fezler, in
her capacity as Administratrix, is not a wrongful death beneficiary
and thus not a “creditor to whom such debt is owed.” See 11 U.S.C.
§ 523(c)(1).
The only requirement for standing to bring a
nondischargeability action based on § 523(a)(6) is that the action
must be brought by a creditor. 11 U.S.C. § 523(c). A creditor is
an “entity that has a claim against the debtor that arose at the
time of or before the order for relief concerning the debtor.” 11
U.S.C. § 101(10)(A). A “claim” is defined as a “right to payment,
whether or not such right is reduced to judgment . . . .” 11
U.S.C. § 101(5)(A). As Administratrix of the estate of the
deceased, Ms. Fezler has been granted a claim and the right to
payment against the debtor by state law. See Tex. Civ. Prac. &
Rem. § 71.004(c). For the reasons hereinafter assigned, we
conclude that Ms. Fezler is a creditor with standing to object to
the discharge of the Texas wrongful death claim.
In Nathanson v. National Labor Relations Board, a landmark
Supreme Court case identifying the characteristics of a creditor,
the Court held that the National Labor Relations Board (NLRB) was
a creditor within the meaning of the Bankruptcy Act, and therefore
had standing to bring a cause of action against a bankrupt employer
7
for back pay owed its employees. 344 U.S. 24, 27 (1952). The
Court noted that the NLRB was the “public agent chosen by Congress
to enforce the National Labor Relations Act.” Id. The back pay
award was a debt owed the NLRB, even though it was ultimately to be
distributed to the employee-victims. Id. Implicit in the Court’s
holding is that denying creditor status to the NLRB would frustrate
its ability “to vindicate the public policy of the [National Labor
Relations Act] by making the employees whole for losses suffered on
account of an unfair labor practice.” Id. (citing Phelps Dodge
Corp. v. National Labor Relations Bd., 313 U.S. 177, 197 (1941)).
Bankruptcy Courts have held that, much like the NLRB, the
Securities and Exchange Commission (SEC), as the agency chosen by
Congress to enforce the Securities Act, has standing as creditor to
bring actions under § 523(c) of the Bankruptcy Code to have
judgments for securities violations declared nondischargeable.
Securities and Exchange Comm’n v. Kane, 212 B.R. 697, 700 (Bankr.
D. Mass. 1997); Securities and Exchange Comm’n v. Maio, 176 B.R.
170, 171 (Bankr. S.D. Ind. 1994).
Under Texas law, Ms. Fezler, the Administratrix, is the
judicially appointed officer chosen and authorized by law to
enforce a claim and right to payment under the Texas Wrongful Death
statute. See Tex. Civ. Prac. & Rem. § 71.004(c). Therefore, as
Administratrix, Ms. Fezler has standing in a § 523(c) adversarial
proceeding to have the wrongful death claim declared
nondischargeable. That the Administratrix has authority to bring
8
suit in her own name and capacity for the ultimate benefit of
others, in the absence of their own actions, and that the
Administratrix is not the final recipient of all the monies owed
does not affect her standing. See Nathanson, 344 U.S. at 27; Kane,
212 B.R. at 700; Maio, 176 B.R. at 171-72. Moreover, denial of the
Administratrix of the right to bring nondischargeability complaints
would unduly hinder the State of Texas in its ability to implement
and enforce its wrongful death law. Cf. Nathanson, 344 U.S. at 27;
Maio, 176 B.R. at 172.
The district court’s narrow interpretation of § 523(c)(1)
fails to take into account the analogous jurisprudence recognizing
that federal administrative agencies by virtue of their authority
to enforce the administrative law are creditors in their own right
with standing to object to discharge in the enforcement of federal
statutory provisions, even though the agencies may not be the
ultimate recipients of the debt payments. See, e.g., Kane, 212
B.R. at 700 (SEC is creditor with standing under § 523(c) to object
to discharge of disgorgement debts); In re Egea, 236 B.R. 734, 744-
45 (Bankr. D. Kan. 1999)(Secretary of Labor is creditor with
standing to object to the discharge of claim against employer-
debtor for breach of fiduciary duties under ERISA); Securities and
Exchange Comm’n v. Bilzerian, 1995 WL 934184, p.2 (M.D. Fla. 1995)
(SEC is creditor with standing to object to bankruptcy discharge of
disgorgement judgment); Maio, 176 B.R. at 171 (SEC has standing to
enforce federal securities laws through bankruptcy
9
nondischargeability complaint); In re Austin, 138 B.R. 898, 904-05
(Bankr. N.D. Ill. 1992)(Federal Trade Commission (FTC) is creditor
under § 523(c) with respect to debtor’s liability on a consent
judgment to make restitution to defrauded customers); In re Black,
95 B.R. 819, 823 (Bankr. M.D. Fla. 1989)(FTC is creditor with
standing to file a nondischargeability complaint as to debtor’s
liability in a pending lawsuit based on alleged violations of the
Federal Trade Commission Act and Truth and Lending Act); 2 Collier
on Bankruptcy, ¶ 101.10 at 101-55; cf. In re W. Tex. Marketing
Corp., 82 B.R. 829, 830 (Bankr. N.D. Tex. 1988)(Department of
Energy (DOE) is a creditor for purposes of filing a proof of claim
for restitution); In re Evans Products Co. 60 B.R. 863, 867 (S.D.
Fla. 1986) (FTC is a creditor for purposes of filing proof of
claim). The agencies need not be the only party entitled to
enforce the Acts as their standing as creditors in the
nondischargeability actions obtains regardless of whether the
actual beneficiaries were authorized under federal law to prosecute
the action in their own right. See Bilzerian, 1999 WL 934184 at p.
3 (the SEC does not lack standing in the nondischargeability action
because private parties can bring damage actions under the
Securities and Exchange Act); Maio, 176 B.R. at 171-72 (“a private
right of action does not strip the Commission of standing to
enforce federal securities laws through nondischargeability
actions”).
Similarly, state officers or local entities, when authorized
10
by law, may object to the discharge of debts in bankruptcy on
behalf of others. See, e.g., In re Taibbi, 213 B.R. 261, 267
(Bankr. E.D.N.Y. 1997)(county consumer protection agency, as the
agency chosen by Suffolk County in its Consumer Protection Law to
investigate fraud and deceptive trade practices perpetrated against
county consumers and having the power to seek equitable relief such
as restitution, has standing under § 523(c)); In re Volpert, 175
B.R. 247, 255-56 (Bankr. N.D. Ill. 1994)(the Illinois Securities
Law provides sufficient statutory authority for the Secretary of
State to maintain chapter 7 nondischargeability action under §
523(c) on behalf of allegedly defrauded Illinois investors); In re
Tapper, 123 B.R. 594, 599 (Bankr. N.D. Ill. 1991)(Illinois Attorney
General has standing under § 523(c) to file adversary complaint to
determine nondischargeability of debts owed by debtor to 20
consumer fraud victims for violations of the Illinois Consumer
Fraud Act because the Act authorizes the Attorney General to
proceed on their behalf in seeking restitution damages); In re
DeFelice, 77 B.R. 376, 378-80 (Bankr. D. Conn. 1987)(Attorney
General has standing to challenge dischargeability of chapter 7
debtor’s debts owing to consumer creditors for alleged violations
of New York Executive Law); In re Sclater, 40 B.R. 594, 596 (Bankr.
E.D. Mich. 1984)(Michigan Attorney General has standing to file
complaint seeking determination of nondischargeability of debts
owed under the Michigan Consumer Protection Act); People of the
State of New York v. Hemingway, 39 B.R. 619, 622 (N.D.N.Y.
11
1983)(Attorney General has standing under § 523(c) to object to the
discharge in bankruptcy of restitution payments to six consumers
for violations of state consumer protection laws); 9B Am. Jur. 2d
Bankruptcy § 3178 (1991); compare In re Cannon, 741 F.2d 1139, 1141
(8th Cir. 1984) (the Attorney General of Missouri lacked standing
to object to the discharge of debts owed by the debtor to eight
individuals under the Missouri Merchandising Practicing Act because
the Act did not grant him authority to sue on behalf of private
individuals in a private action to seek the restitution payments;
rather, the Attorney General could only seek an injunction on
behalf of the state itself prohibiting the underlying unlawful
practice).3
3
As further evidence that the district court’s interpretation
of § 523(c) was erroneously narrow, a line of bankruptcy cases hold
that a class representative in a certified class action may request
on behalf of the class that the debts owed class members be
excepted from discharge in bankruptcy. See, e.g., In re Iommazzo,
149 B.R. 767, 773-75 (Bankr. D. N.J. 1993)(class actions are
permitted by Fed.R.Bankr.P. 7023 in chapter 7 adversary proceedings
under Bankruptcy Code § 523(c) to preclude discharge of debts for
alleged violations of securities law and fraud); In re Livaditis,
132 B.R. 897, 900-01 (Bankr. N.D. Ill. 1991)(class plaintiffs
allowed to bring chapter 11 nondischargeability complaint under §
523(c) objecting to discharge of a federal court judgment for
violations of the Illinois Consumer Fraud Act and the federal
Rackateer Influence and Corrupt Organization Act); In re Duck, 122
B.R. 403, 405 (Bankr. N.D. Cal. 1990)(complainant in chapter 11
nondischargeability action was a class representative of a
certified class in a state court action suing debtor and co-
conspirators for breach of fiduciary duties in their embezzlement
from various bankruptcy estates); 6A Norton Bankruptcy Law &
Practice 2d § 154:14.5 (class actions by creditors seeking a
determination of nondischargeability will be allowed in bankruptcy
cases so long as Fed.R.Civ.P. 23 is satisfied); But see In re
Hanson, 104 B.R. 261 (Bankr. N.D. Cal. 1989)(class dischargeability
actions under § 523(c) are not allowed due to strict reading of
that provision).
12
The common thread running through the foregoing cases is that
an entity with statutory authority to prosecute and collect a claim
against the debtor, even if other persons are entitled to ultimate
payment on the claim, is a creditor in its own right, absent a
statutory provision to the contrary. Applying this principle, Ms.
Fezler, as Administratrix, by Texas law has a wrongful death claim
against the Debtor and is, in her capacity as Administratrix, a
creditor under § 523(c).
The Bankruptcy Code provides that “‘debt’ means liability on
a claim.” 11 U.S.C. § 101(12). The Supreme Court has held that
the plain meaning of a “debt” or “claim” is “nothing more or less
than an enforceable obligation.” Pennsylvania Public Welfare Dep’t
v. Davenport, 495 U.S. 552, 559 (1990) (a criminal restitution
order is a claim giving rise to a debt under the Bankruptcy Code
regardless of the government’s objectives in imposing the
obligation); 2 Collier on Bankruptcy, ¶ 101.05[1], at 101-26
(Congress intended to adopt the broadest available definition of
the term “claim,” and, according to the Supreme Court in
Davenport, it is coextensive with the term “debt”); Southmark Corp.
v. Schulte, Roth, & Zabel (In re Southmark Corp.), 88 F.3d 311, 317
(5th Cir. 1996)(the terms ‘debt’ and ‘claim’ are coextensive).
Hence, a creditor is an entity with the right to enforce a legal
obligation of payment against the debtor. See Egea, 236 B.R. at
744; Austin, 138 B.R. at 903; Black 95 B.R. at 823; Evans, 60 B.R.
at 867-68.
13
That the Code’s definition refers to a creditor as “an entity
who has a claim against the debtor” is significant. 11 U.S.C. §
101(10)(A) (emphasis added). “As a result, and in contrast to
prior law under Section 1 of the Act, a creditor is no longer
required to own the claim.”4 2 Collier on Bankruptcy, ¶ 101.10 at
101-55 (emphasis in original). Under the Bankruptcy Code,
“whenever the statute accords rights and privileges to creditors or
subjects them to duties, anyone holding a claim comes within the
scope of such provision, unless the express language or the context
require additional qualifications to be met.” Id. at 101-52. As
neither the express language nor the context of § 523(c) require
additional qualifications in the present case, Ms. Fezler, as
Administratrix, has a claim against the Debtor, and she is in that
capacity a creditor for purposes of this provision.
Moreover, Califano v. Yamasaki illustrates that the Federal
Rules of Civil Procedure apply in all suits of a civil nature
brought in federal court absent a direct expression by Congress of
contrary intent. 442 U.S. 682, 699-700 (1979). In Califano, the
Supreme Court held that a class action could be maintained under §
4
“For example, the United States is a creditor not only with
respect to public exactions for revenue purposes such as income
taxes, but also with respect to statutory obligations enforceable
by a federal administrative agency in the public interest for the
benefit of private parties.” 2 Collier on Bankruptcy, supra at
101-55. Black’s Law Dictionary defines creditor: “3. Bankruptcy.
A person or entity having a claim against the debtor predating the
order for relief concerning the debtor.” Black’s Law Dictionary
375 (7th ed. 1999). See also U.C.C. § 1-201(12) (“creditor”
includes a general, secured, and lien creditor and any
representative of creditors).
14
205(g) of the Social Security Act even though that provision’s
express terms contemplated suits filed by individuals. 422 U.S. at
700. The Court stated:
Section 205(g) contains no express limitations on
class relief. It prescribes that judicial review shall
be by the usual type of “civil action” brought routinely
in district court in connection with the array of civil
litigation. Federal Rule [of Civil Procedure] 1, in
turn, provides that the Rules “govern the procedure in
the United States district courts in all suits of a civil
nature.” Those rules provide for class actions of the
type certified in this case. In the absence of a direct
expression by Congress of its intent to depart from the
usual course of trying “all suits of a civil nature”
under the Rules established for that purpose, class
relief is appropriate in civil actions brought in federal
court . . . .
We do not find in § 205(g) the necessary clear
expression of congressional intent to exempt actions
brought under that statute from the operation of the
Federal Rules of Civil Procedure. The fact that the
statute speaks in terms of an action brought by “any
individual” or that it contemplates case-by-case
adjudication does not indicate that the usual Rule
providing for class actions is not controlling, where
under that Rule certification of a class action otherwise
is permissible. Indeed, a wide variety of federal
jurisdictional provisions speak in terms of individual
plaintiffs, but class relief has never been thought to be
unavailable under them. It is not unusual that § 205(g),
like these other jurisdictional statutes, speaks in terms
of an individual plaintiff, since the Rule 23 class-
15
action device was designed to allow an exception to the
usual rule that litigation is conducted by and on behalf
of the individual named parties only.
Id. at 700-01 (internal citations omitted).
Similarly, Bankruptcy Rule 7017 provides, with one exception
not pertinent here,5 that “Rule 17 F.R.Civ.P. applies in adversary
proceedings.” Fed.R.Bankr.P. 7017. The first sentence in Rule 17
states that while every action shall be prosecuted in the name of
the real party in interest, ”[a]n executor [or] administrator may
sue in that person’s own name without joining the party for whose
benefit the action is brought.” Fed.R.Civ.P. 17(a). This
provision authorizes an executor or administrator to bring suit as
the real party in interest on behalf of a decedent’s estate. 4
Moore’s Federal Practice, § 17.10[3][b] (Matthew Bender 3d ed.).
Rule 17(a) designates executors and administrators as real parties
in interest who need not join as plaintiffs the persons for whose
benefit the wrongful death action is brought, when state
substantive law vests control of the suit in that fiduciary. See
6A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil 2d § 1548. This result obtains whether the suit
is brought in state or federal court. Id.
The second sentence of Rule 17(a) states that “a party
authorized by statute may sue in that person’s own name without
5
The exception relates to actions under Bankruptcy Rule
2010(b) by any party in interest brought in the name of the United
States on a trustee’s bond. F.R.Bankr.P. 7017.
16
joining the party for whose benefit the action is brought,”
Fed.R.Civ.P. 17(a). Thus, an entity is the real party in interest
when it is statutorily authorized to bring suit to enforce a claim.
Wright & Miller, supra at § 1550; Estate of Johnson v. Belleville
Hosp. 56 F.R.D. 380, 384 (S.D. Tex. 1972)(executor of estate has
authority under Texas wrongful death statute to bring wrongful
death suit on behalf of statutory beneficiaries six months after
death of deceased and is within scope of Rule 17(a) such that he
need not join the beneficiaries as plaintiffs). The statutory
right to sue must stem from the substantive law controlling the
action and may be granted by either state or federal law. Wright &
Miller, supra at § 1550. In the present case, the Texas wrongful
death statute is the substantive law that controls and grants the
Administratrix the right to sue.
Absent a direct expression of Congress prohibiting a
nondischargeability action by an administratrix, the normal rules
of civil procedure, including Rule 17(a), are to be applied. See
In re Livaditis, 132 B.R. 897, 900 (Bankr. N.D. Ill.
1991)(Bankruptcy Rule 7023 provides that Federal Civil Procedure
Rule 23 regarding class actions applies in adversary proceedings
and contains no exceptions for dischargeability actions); In re
Duck, 122 B.R. 403, 405-06 (Bankr. N.D. Cal. 1990) (same) (citing
In re Charter, 876 F.2d 866, 872 (11th Cir. 1989) in turn citing
and quoting Califano, 442 U.S. at 700). In making Rule 17(a)
applicable to adversary proceedings in bankruptcy, Rule 7017 makes
17
no exception with respect to nondischargeability actions. Section
523(c) is likewise silent in this regard. As the Supreme Court
stated in an analogous context, we do not find in § 523(c) “the
necessary clear expression of congressional intent to exempt
actions brought under that statute from the operation of the
Federal Rules of Civil Procedure.” Califano, 442 U.S. at 700. As
a result, Ms. Fezler, as Administratrix, was authorized by both
Texas and federal statutory law to sue on behalf of the wrongful
death beneficiaries in both the wrongful death action and in the
nondischargeability action without the necessity of naming them as
plaintiffs. See Tex. Civ. Prac. & Rem. § 71.004; Fed.R.Bankr.P.
7017; Fed.R.Civ.P. 17(a).
Accordingly, we conclude that, as Administratrix, Ms.
Fezler is in her own right “a creditor to whom such [wrongful
death] debt is owed” under the Bankruptcy Code for purposes of §
523(c) and has standing to object to the discharge of the wrongful
death claims in bankruptcy.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
judgment dismissing Appellant’s nondischargeability complaint and
REMAND the case to the district court for further proceedings
consistent with this opinion.
18