Jenkins v. M.R.S. Associates, Inc. et al

Filing 32

ORDER granting 30 Motion to Intervene. Signed by Magistrate Judge David Keesler on 5/16/2012. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:10-CV-121-RLV-DCK
MATT JENKINS,

)
)
Plaintiff,
)
)
v.
)
)
M.R.S. ASSOCIATES, INC.,
)
MRS BPO, LLC,
)
)
Defendants.
)
____________________________________)

ORDER

THIS MATTER IS BEFORE THE COURT on the “Motion To Intervene” (Document No.
30) filed April 25, 2012. This motion has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate.
The pending motion was filed by counsel for James T. Ward, Sr. (the “Trustee”), the Chapter
7 trustee for Matthew Alan Jenkins (“Jenkins” or “Plaintiff”) in case number 12-50413, currently
pending before the United State Bankruptcy Court for the Western District of North Carolina. No
response has been filed to the “Motion To Intervene,” and the time to do so lapsed on May 14, 2012.
Having carefully considered the motion, the record, and applicable authority, the undersigned will
grant the motion.
BACKGROUND
On August 30, 2010, the Complaint in this action was filed asserting claims against M.R.S.
Associates, Inc. and MRS BPO, LLC, (“Defendants”) for, inter alia, violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227, et seq., the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692, et seq., the Fair Credit Reporting Act, 15 U.S.C. § 1681, and the Prohibited Practices by
Collection Agencies Engaged in the Collection of Debts from Consumers, N.C. Gen. Stat. § 58-70.
(Document No. 1).

On April 11, 2012, Jenkins filed a voluntary petition (the “Petition”) for relief pursuant to
Chapter 7 of the United States Bankruptcy Code (the “Bankruptcy Code”) in the United States
Bankruptcy Court for the Western District of North Carolina (the “Bankruptcy Court”), initiating
bankruptcy case number 12-50413 (the “Bankruptcy Case”). The Trustee has been appointed as the
Chapter 7 bankruptcy Trustee for the Bankruptcy Case. Through the instant motion, the Trustee
seeks to intervene as a matter of right as the real party in interest in this litigation. (Document No.
30).
DISCUSSION
The Bankruptcy Code provides that a bankruptcy trustee serves as “the representative of the
estate” with the capacity “to sue and be sued.” 11 U.S.C. § 323. Upon the filing of a bankruptcy
petition, a bankruptcy estate is created consisting of, among other things, all legal or equitable
interests in property as of the commencement of the Bankruptcy Case. 11 U.S.C. § 541(a). Such
property includes causes of action belonging to the debtor when the bankruptcy case was filed.
Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir. 2004) (citing Barger v. City of
Cartersville, 348 F.3d 1289, 1292 (11th Cir.2003)). As explained by the Eleventh Circuit,
“[g]enerally speaking, a pre-petition cause of action is the property of the Chapter 7 bankruptcy
estate, and only the trustee in bankruptcy has standing to pursue it.” Id.
Federal Rule of Civil Procedure 17 requires that actions be prosecuted “in the name of the
real party in interest.” Fed.R.Civ.P. 17(a)(1). When a petition is filed, the bankruptcy trustee
becomes the proper party in interest to pursue any legal or equitable claims that reflect property of
the bankruptcy estate. Sigmon v. Potter, 2008 WL 486589 (W.D.N.C. Feb. 19, 2008) (quoting
Parker, 365 F.3d at 1272)). Put differently, once a bankruptcy petition is filed, the bankruptcy
debtor loses standing to pursue causes of action that constitute property of the estate. Id.; Johnson

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v. Mitchell, 2011 WL 1586069 at *9-10 (E.D. Calif. Apr. 25 2011) (quoting Lane v. Vitek Real
Estate Industries Group, 713 F.Supp.2d 1092, 1097 (E.D. Calif. 2010)); In re Merrill Lynch & Co.,
Inc. Research Reports Securities Litigation, 375 B.R. 719, 725 (S.D.N.Y. 2007). Therefore, only
the trustee, as the representative of the debtor’s bankruptcy estate, has standing to prosecute claims
that are property of the estate. 11 U.S.C. § 323.
The Trustee’s instant motion reflects a timely request to intervene in this action given the
short period of time that has elapsed since date of the Petition and the date herein. Furthermore, the
Trustee has shown that, given his appointment in the Bankruptcy Case, he has an interest in this
action premised on Section 323 of the Bankruptcy Code. The Trustee is required by Section
704(a)(1) to liquidate Jenkins’ pre-petition assets, including the claims asserted in this action, but
his ability to do so will be impaired and impeded unless he is permitted to intervene in this matter.
Because any recovery will necessarily reflect an estate asset, it is essential that the Trustee be able
to control prosecution of the claims that are both the subject of this litigation and property of
Jenkins’ bankruptcy estate. No party in this case, including Jenkins, holds the same interests, and
those interests are not adequately represented by any other party.
In sum, given the Trustee’s appointment by the Bankruptcy Court, and given the provisions
of Rule 17 and Section 323 of the Bankruptcy Code, the Trustee should be permitted to intervene
in this action in order to fulfill his duty to marshal estate assets.
IT IS, THEREFORE, ORDERED that the “Motion To Intervene” (Document No. 30) is
GRANTED, such that the Trustee shall be permitted to intervene in this case as the real party in
interest with respect to the claims asserted in the Complaint.

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Signed: May 16, 2012

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