In re Gideon

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UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISIONAug 4, 2016
Case No. 15-50464 (Bankr. E.D. Mich. Aug. 4, 2016)

Case No. 15-50464

08-04-2016

In re: LARRY GIDEON, Debtor.


Chapter 7

ORDER DENYING CREDITOR THOMAS J. BUDZYNSKI'S "MOTION FOR AUTHORITY TO SUE TRUSTEE"

This case is before the Court on the motion filed by creditor Thomas J. Budzynski entitled "Motion for Authority to Sue Trustee" (Docket # 61, the "Motion"). The Chapter 7 Trustee filed a response, objecting to the Motion (Docket # 62).

The Court concludes that a hearing on the Motion is not necessary, and that the Motion must be denied, for the following reasons.

While the Motion does not say so, it appears that the creditor is seeking authority to sue the Chapter 7 Trustee, rather than simply filing an adversary proceeding against the Trustee, because of the rule known as the Barton doctrine. The Barton doctrine is a federal common law rule originating in the United States Supreme Court's decision in Barton v. Barbour, 104 U.S. 126 (1881). The United States Court of Appeals for the Sixth Circuit has described the Barton doctrine as follows:

It is well settled that leave of the appointing forum must be obtained by any party wishing to institute an action in a non-appointing forum against a trustee, for acts done in the trustee's official capacity and within the trustee's authority as an officer of the court.

Allard v
. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993)(citations omitted).

As the above description of the Barton doctrine suggests, leave of the bankruptcy court is not required in order for a party to sue a Chapter 7 bankruptcy trustee in the bankruptcy court and in the very case in which the Chapter 7 trustee was appointed. Rather, the Barton doctrine only requires such leave of the bankruptcy court when a party wishes to sue a bankruptcy trustee in some other court. See Harris v. Wittman (In re Harris), 590 F.3d 730, 741-42 (9th Cir. 2009).

The creditor's Motion does not seek leave or authority to sue the Chapter 7 Trustee in any court other than this bankruptcy court, in this bankruptcy case. (If the Motion had requested such leave, this Court would have denied it, because any such action clearly should be brought in this Court.) As a result, the creditor's Motion is unnecessary, and will be denied for that reason.

The Court expresses no view, at this time and in entering this Order, on the merits of any possible claim(s) the creditor may have against the Chapter 7 Trustee or the bankruptcy estate, or on any possible defense(s) the Chapter 7 Trustee may have to any such claim(s).

IT IS ORDERED that the Motion (Docket # 61) is denied.

IT IS FURTHER ORDERED that this Order is without prejudice to the right of Thomas J. Budzynski to file an adversary proceeding in this Court, seeking relief against the Chapter 7 Trustee.

IT IS FURTHER ORDERED that the Chapter 7 Trustee's request for an award of costs for having to respond to the Motion, contained in the Trustee's response to the Motion, is denied. Signed on August 4, 2016

/s/ Thomas J. Tucker


Thomas J. Tucker


United States Bankruptcy Judge