 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Miller v. Accelerated Bureau of Collections Inc.5/16/1996
nkr. D. Colo. 1985). Here, the trial court awarded punitive damages in the amount of $11,000.
The exempting of property in bankruptcy is not a self- executing process; that is, the exemption must be claimed. If property is claimed to be exempt, it is so categorized unless a party in interest objects to the exemption. 11 U.S.C. ยง 522(l) (1994). In this instance, the trustee objected to the exemptions claimed by the Millers, and the bankruptcy court never resolved that objection. Instead, the bankruptcy court approved the stipulation, which is silent as to the claimed exemption.
Therefore, in our view, absent some other and further action, the claim remains the property of the bankruptcy estate. Thus, the Millers lacked standing at the time they commenced this action. See Jones v. Harrell, 858 F.2d 667 (11th Cir. 1988); Bratton v. Mitchell, Williams, Selig, Jackson & Tucker, 302 Ark. 308, 788 S.W.2d 955 (1990).
II.
The Millers assert that the stipulation they entered into with the bankruptcy trustee grants them standing. We disagree.
A.
At the outset ABC argues that the Millers are not the real parties in interest because they were not such at the time they filed suit and that they cannot subsequently acquire that status. In support of this position, ABC cites Bronner v. Exchange State Bank, 455 N.W.2d 289 (Iowa App. 1990) (if a plaintiff lacks standing to sue at the inception of a lawsuit, the plaintiff cannot acquire standing by subsequently gaining ownership of the asserted claims) and Stallsworth v. Munoz, 639 N.E.2d 1025 (Ind. App. 1994) (similar facts and holding). In our view, Bronner and Stallsworth are not persuasive.
Colorado courts have recognized after-acquired standing. In Travelers Insurance Co. v. Gasper, 630 P.2d 97 (Colo. App. 1981), an insurer who was the real party in interest was substituted as plaintiff at trial, and the substitution related back to the filing of the complaint even though the statute of limitations had expired in the interim. In Platte Valley Mortgage Corp. v. Bickett, ___ P.2d ___ (Colo. App. No. 94CA1865, Feb. 22, 1996), a division of this court held that a plaintiff who had standing by assignment after the filing of the complaint, but prior to trial, could proceed.
The federal rule, Fed. R. Civ. P. 17(a), specifically provides that a court is not to dismiss an action until it allows a reasonable time for ratification, joinder, or substitution, which shall have the same effect as if the action had been commenced in the name of the real party in interest. While the Colorado rule does not contain the same language, the underlying rationale for requiring a real party in interest is not sacrificed by the later acquisition of standing.
We conclude that a plaintiff not having standing at the outset of the litigation may acquire standing after an objection is raised and that the standing later acquired relates back to the commencement of the proceedings.
B.
The Millers assert that their stipulation with the bankruptcy trustee and approved by the bankruptcy court gives them standing in this matter. We disagree.
As previously indicated, the parties agreed in the stipulation that the Millers' counsel would pursue the claim pursuant to a contingency fee agreement and that the parties would share the proceeds and costs. There is no language of transfer or assignment, nor did the trustee agree to be bound by the judgment.
In our view, notice to, knowledge of, or acquiescence by the real party in interest in an action does not confer standing on the plaintiff. Notice, knowledge, or acquiesce
Page 1 2 3 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|