Excerpted
from a Brief in Support of Defendant’s
Opposition
to a Motion for Leave to File a Second Amended Complaint
Introduction
Section 541(a) sets forth what constitutes property
of a bankruptcy estate. Any claims which the
debtor could make that might inure to the benefit of the estate and therefore
its creditors are claims belonging to the trustee. In the present case, Plaintiff claims that
the Debtor and the Non/Debtor co-defendants engaged in certain contractual
breaches and tortious conduct including but not limited to fraud, resulting in
financial loss and injury to her. She
filed her claims pre-petition.
Ordinarily, the provisions of §362 might apply so as prevent or preclude
her from pursuing her claims at least against the debtor absent a lifting of
the stay. But in this case, one or more
of the Non/Debtor co-defendants removed this action to the bankruptcy court affording
plaintiff free reign to pursue her claims there, without hindrance. The nature of the claims is not such that a
trustee would or could bring on behalf of the estate or on behalf of its
creditors as they are claims against the Debtor. A Debtor does not sue itself. Alter-ego lawsuits may be pursued against the
debtor in bankruptcy court, without lifting the automatic stay. Despite the
apparent silence of the Code on this point, the Code implicitly permits the
filing of suit in the bankruptcy court against a
debtor without violating the automatic stay.
The action as removed to bankruptcy court was nothing more or less than
any other adversary claim. Instead of
hanging their hats on what, if any, protection the provisions of the automatic
stay might have afforded them, the Defendants in this case removed the
action. They opened the door and laid
out the red carpet for the Plaintiff to pursue her claims. Instead of doing so, she waited five months,
and filed for remand and in so doing looked the proverbial gift horse in the mouth
and kicked it. Then, after waiting
around for two years, she now seeks the benefit of a tolling period so as to
avoid the mandate of NRCP 41(e). No such
tolling period is warranted.
