Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50558

In The Matter Of: GARY L BRADLEY

Debtor

RONALD INGALLS, Chapter 7 Trustee

Appellant

v.

JAMES D GRESSETT

Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:05-CV-461

Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Ronald Ingalls, as Chapter 7 Trustee of the estate of

debtor Gary Bradley, appeals the district court’s grant of summary judgment in

favor of Defendant-Appellee James Gressett, dismissing the Trustee’s Texas law

claim against Gressett for conspiring with Bradley to fraudulently transfer

United States Court of Appeals

Fifth Circuit

F I L E D

June 16, 2009

Charles R. Fulbruge III

Clerk
No. 08-50558

2

assets out of Bradley’s estate. The district court held that the Trustee lacked

standing to bring the civil conspiracy claim. Reviewing both the grant of

summary judgment and the underlying legal issue of standing de novo, Texas v.

United States, 497 F.3d 491, 495 (5th Cir. 2007), we AFFIRM the district court’s

judgment for the following reasons: 

1. It is well established that a trustee has no standing to bring tort claims

that belong exclusively to creditors of the bankruptcy estate. See Caplin v.

Marine Midland Grace Trust Co., 406 U.S. 416, 433–34, 92 S. Ct. 1678, 1688

(1972) (holding that a trustee lacked standing to sue a third party for damages

incurred by debenture holders of the corporate debtor); In re Seven Seas

Petroleum, Inc., 522 F.3d 575, 584 (5th Cir. 2008) (citing Caplin for the

proposition that “the trustee has no right to bring claims that belong solely to

the estate’s creditors”); In re Educators Group Health Trust, 25 F.3d 1281, 1284

(5th Cir. 1994) (same).

We agree with our sister circuit that Congress’s adoption of the “strongarm clause,” 11 U.S.C. § 544(a), did not supersede Caplin’s holding that a trustee

lacks authority to assert a claim against a third party that does not comprise

part of the bankruptcy estate. See In re Ozark Rest. Equip. Co., 816 F.2d 1222,

1226–30 (8th Cir. 1987). Although Caplin predated the enactment of § 544(a),

we, too, find it “extremely noteworthy” that Congress considered including a

provision that would have expressly overruled Caplin but declined to do so. See

id. at 1227–28 & nn. 9 & 10; see also Williams v. Cal. 1st Bank, 859 F.2d 664,

667 (9th Cir. 1988) (agreeing with the Eighth Circuit’s interpretation of the

legislative history behind § 544(a)). The Bankruptcy Code does not authorize the

Trustee to collect property or money except that which is owed to the estate. 

2. The Trustee alternatively contends that the conspiracy claim belongs to

the bankruptcy estate because, unlike in Caplin, the claim here seeks to remedy

an injury to all of Bradley’s creditors and not merely a subset thereof. Even
No. 08-50558

3

assuming that any or all of Bradley’s creditors could properly assert the claim,

we disagree that this fact alone confers standing on the Trustee. This court

recently clarified that, when determining whether a claim is property of the

bankruptcy estate such that the trustee has standing to assert it under

11 U.S.C. § 541(a), the distinction between claims that are “personal” to some

creditors or “general” as to all is relevant only “after a claim has been analyzed

to determine whether it is properly assertable by the debtor or creditor, and not

as a substitute for the analysis itself.” In re Seven Seas Petroleum, 522 F.3d at

588 (construing In re Schimmelpenninck, 183 F.3d 347 (5th Cir. 1999) (emphasis

added)). For instance, a claim that would ordinarily be brought by creditors

nonetheless belongs to the debtor’s estate if it pursues property in which the

debtor retains an equitable interest, see, e.g., In re MortgageAmerica Corp., 714

F.2d 1266, 1275 (5th Cir. 1983) (construing a fraudulent transfer claim to belong

to the debtor’s estate), or if the debtor itself could have brought the claim under

applicable state law, see, e.g., id. at 1276–77 (holding Texas law permits a

corporate debtor to bring a trust fund (denuding) action); In re S.I. Acquisition,

Inc., 817 F.2d 1142, 1152–53 (5th Cir. 1987) (holding an alter ego action could

be brought by the debtor corporation under Texas law). But Texas law does not

suggest that Bradley has any cognizable legal or equitable interest in the

damages sought here to replace assets that he conspired to fraudulently transfer

or that Bradley could seek damages from his co-conspirator for assisting with

those transfers. Indeed, the Trustee does not contend otherwise. Thus, in suing

Gressett for his role in the conspiracy, the Trustee does not represent the

creditors’ interests in Bradley’s conspiracy claims against Gressett but attempts

to assert the creditors’ own direct claim against Gressett in which Bradley has

no interest. This he cannot do. See In re Seven Seas Petroleum, 522 F.3d at 588

(distinguishing between a trustee’s permissible enforcement of the creditors’

interests in the debtor’s claims against a third party, and a trustee’s
No. 08-50558

4

impermissible attempt to assert the creditors’ direct claims against third parties

(quoting Steinberg v. Buczynski, 40 F.3d 890, 893 (7th Cir. 1994)). Finding no

standing on the part of the Trustee to bring the action for civil conspiracy, we

conclude that the district court properly granted summary judgment in favor of

Gressett. 

AFFIRMED.