National Collegiate Student Loan Trust 2007-3 v. Dana Clayborn

SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.

October 23, 2020

In the Court of Appeals of Georgia
A20A1571. NATIONAL COLLEGIATE STUDENT LOAN TRUST
2007-3 v. CLAYBORN.

MERCIER, Judge.

National Collegiate Student Loan Trust 2007-3 (“NCSLT”) sued Dana

Clayborn on a promissory note, alleging she defaulted on a loan. Clayborn moved to

dismiss the complaint, contending that NCSLT, as a trust, is not a “real plaintiff with

Constitutional standing” and can only act through its trustees. NCSLT opposed the

motion to dismiss, arguing that, as a Delaware statutory trust, it is an unincorporated

association with the right to file suit in its own name. The trial court, finding that

NCSLT is an express trust and that express trusts are not recognized under Georgia

law as legal entities separate from their trustees, entered an order instructing NCSLT

to substitute its trustee as the real party in interest. In its response to the order,
NCSLT stated that it would not make the substitution because it has the right to sue

in its own name. The trial court thereafter entered an order dismissing the action with

prejudice, citing NCSLT’s disregard of its order to substitute the trustee for the trust

as the real party in interest. NCSLT appeals. We reverse.

A motion to dismiss may be granted only where a complaint
shows with certainty that the plaintiff would not be entitled to relief
under any state of facts that could be proven in support of his or her
claim. We review the trial court’s ruling on a motion to dismiss under
the de novo standard of review.

Walker County v. Tri-State Crematory, 292 Ga. App. 411 (664 SE2d 788) (2008)

(citation and punctuation omitted).

1. NCSLT contends that the trial court erred by failing to recognize its right,

capacity, and standing to file suit in Georgia. In its complaint, NCSLT states that it

is a Delaware statutory trust and, in its opposition to Clayborn’s motion to dismiss,

NCSLT attached a copy of its trust certificate listing Wilmington Trust Company as

its trustee. As part of its response to the trial court’s order directing it to substitute the

name of the trust as plaintiff with the name of the trustee, NCSLT attached a copy of

the trust agreement.

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 Under Georgia law, “[e]very action shall be prosecuted in the name of the real

party in interest.” OCGA § 9-11-17 (a).1 “The real party in interest is the person, who,

by the substantive governing law, has the right sought to be enforced.” Golden Pantry

Food Stores v. Lays Bros., 266 Ga. App. 645, 651 (3) (597 SE2d 659) (2004)

(citations and punctuation omitted). “[G]enerally, any cause of action belonging to

a trust must be pursued by the trustee[.]” Schinazi v. Eden, 338 Ga. App. 793, 795 (1)

(792 SE2d 94) (2016); see also Skinner v. DeKalb Federal Sav. & Loan Assoc., 246

Ga. 561, 563 (272 SE2d 260) (1980) (legal title to trust assets is in the trustee, and

any cause of action for breach of a trust must be pursued by the trustee).

NCSLT asserts, however, that a Delaware statutory trust is an unincorporated

association with the right, capacity, and standing to sue in its own name, and that an

unincorporated association is unlike traditional common law or express trusts that

have no separate personality apart from their trustees. NCSLT cites the following

Delaware statutory provisions:

(i) “Statutory trust” means an unincorporated association which:

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“No case, however, should be dismissed [based on the failure of the real party
in interest to bring the action] 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.” Golden Pantry Food Stores v. Lays Bros., 266 Ga. App. 645,
651 (3) (597 SE2d 659) (2004) (citations and punctuation omitted).

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 (1) Is created by a governing instrument under which . . . business or
professional activities for profit are carried on . . . by a trustee or trustees
or as otherwise provided in the governing instrument for the benefit of
such person or persons as are or may become beneficial owners or as
otherwise provided in the governing instrument, including but not
limited to a trust of the type known at common law as a “business trust,”
. . .; and

(2) Files a certificate of trust pursuant to § 3810 of this title.

Any such association heretofore or hereafter organized shall be a
statutory trust and, unless otherwise provided in its certificate of trust
and in its governing instrument, a separate legal entity.

12 Del. C. § 3801. Thus, NCSLT argues, it is a distinct legal entity that possesses the

ability to sue or be sued. It adds that because it was formed pursuant to Delaware law,

its legal status is determined by Delaware law, and that the court must apply “full

faith and credit” to Delaware’s statutory trust law.

Article IV, Section 1 of the United States Constitution provides that “Full Faith

and Credit shall be given in each State to the public Acts . . . of every other State.”

A statute is a public act within the meaning of that clause. Franchise Tax Bd. of

California v. Hyatt, _ U. S. _ (136 SCt 1277, 1281 (II), 197 LE2d 431) (2016). At the

same time,

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 every state is entitled to enforce in its own courts its own statutes,
lawfully enacted. One who challenges that right, because of the force
given to a conflicting statute of another state by the full faith and credit
clause, assumes the burden of showing, upon some rational basis, that
of the conflicting interests involved those of the foreign state are
superior to those of the forum.

Alaska Packers Assn. v. Indus. Accident Comm., 294 U. S. 532, 547-548 (2) (55 SCt

518, 79 LE2d 1044) (1935).

It does not appear that Georgia law has a “statutory” or “business” trust per se,

or one that is essentially the same as Delaware’s statutory trust. See generally OCGA

§ 53-12-2. While a Delaware statutory trust may contain elements similar to those of

an express trust under Georgia law, see OCGA § 53-12-20 (a),2 Delaware’s statutory

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OCGA § 53-12-20 pertinently provides:
(a) [A]n express trust shall be created or declared in writing and signed by the
settlor or an agent for the settlor acting under a power of attorney containing express
authorization.
(b) An express trust shall have, ascertainable with reasonable certainty:
(1) An intention by a settlor to create such trust;
(2) Trust property;
(3) Except for charitable trusts or a trust for care of an animal, a beneficiary
who is reasonably ascertainable at the time of the creation of such trust or
reasonably ascertainable within the period of the rule against perpetuities;
(4) A trustee; and
(5) Trustee duties specified in writing or provided by law.

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trust is, by the clear terms of the statutory scheme under which it was created, an

unincorporated association; it is not a Georgia express trust. We hold that the relevant

statutes of Delaware and Georgia - considered together - confirm that NCSLT is an

unincorporated association that has the capacity to maintain an action in Georgia.

As set out above, Delaware law specifically provides that a statutory trust is an

unincorporated association. 12 Del. C. § 3801 (i). It further provides that such an

association is a separate legal entity. 12 Del. C. § 3801 (i) (2). The Revised Georgia

Trust Code of 2010 (OCGA § 53-12-1 et seq.) provides that a “‘[t]rust’ means an

express trust or an implied trust but shall not include trusts created by statute[.]”

OCGA § 53-12-2 (13) (emphasis supplied). Further, Georgia’s trust code defines

“[p]erson” as, inter alia, “an individual, . . . association, . . . business trust,

unincorporated organization, . . . or other legal entity.” OCGA § 53-12-2 (7)

(emphasis supplied). OCGA § 9-2-24 provides that “[a]n action may be maintained

by and in the name of any unincorporated organization or association.” (Emphasis

supplied.)

We note that the Supreme Court of the United States recently noted that

“[m]any States . . . have applied the ‘trust’ label to a variety of unincorporated entities

that have little in common with [a] traditional [trust],” and the Court thus declined to

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treat an unincorporated entity (there, a real estate investment trust) the same as it

would a traditional trust (for purposes of diversity jurisdiction). Americold Realty

Trust v. ConAgra Foods, _ U. S. _ (136 SCt 1012, 1016-1017 (III), 194 LE2d 71)

(2016). And in Shaw v. Cousins Mtg. & Equity Inv., 142 Ga. App. 773 (236 SE2d

919) (1977), overruled on other grounds by Mock v. Canterbury Realty Co., 152 Ga.

App. 872 (264 SE2d 489) (1980), this Court equated a foreign business trust with an

unincorporated association and held that the business trust, as an unincorporated

association, had capacity to institute the underlying suit for breach of contract. Id. at

774 (2).

We hold that NCSLT, despite its nomenclature as a “trust,” is a Delaware

unincorporated association. As such, it is a separate legal entity entitled to maintain

an action in its own name in Georgia. Accordingly, the trial court erred by dismissing

the complaint.

2. Notably, Clayborn argues that NCSLT has misrepresented her jurisdictional

objection as a procedural one; she asserts that she contested the trial court’s

constitutional authority, in other words its subject matter jurisdiction, to hear from a

trust, as a trust lacks constitutional standing to bring an action before a Georgia court.

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However, Clayborn’s objection does not implicate subject matter jurisdiction. As this

Court recently explained, such an objection “is a challenge to the trust’s capacity to

sue rather than its standing, because it does not concern whether the trust was entitled

to have the court decide the merits of its contract claim but rather who could assert

that claim on the trust’s behalf — the trust itself or its trustees.” Zahler v. Nat.

Collegiate Student Loan Trust 2006-1, 355 Ga. App. 458, 458-459 (1) (844 SE2d

530) (2020).

3. Clayborn has filed a motion to dismiss this appeal, arguing that (a) NCSLT,

as a trust, lacks standing to appear in a Georgia court; (b) NCSLT lacks standing to

raise any constitutional objection to OCGA § 9-11-17 because it cannot be prejudiced

by being required to adhere to OCGA § 9-11-17; and (c) NCSLT failed to preserve

the constitutional issue (regarding the full faith and credit clause) for appeal. The

motion is without merit. As discussed above, NCSLT is a legal entity with capacity

to sue and have its case reviewed in a Georgia court; because NCSLT has the capacity

to bring an action in this state, OCGA § 9-11-17 does not require it to substitute its

trustee as plaintiff; and NCSLT has not challenged the constitutionality of a law in

this appeal (although Clayborn did raise the issue of full faith and credit below).

Clayborn’s motion to dismiss the appeal is hereby denied.

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 Judgment reversed. Motion to dismiss denied. Miller, P. J., and Coomer, J.,

concur.

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