Fezler v. Davis

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