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its assets pre-petition is a claim a trustee has standing to assert. There is no requirement in the avoidance provisions of S 541 that creditors not be the primary beneficiaries of a trustee's avoidance claim, and such a requirement, if imposed, would invalidate avoidance claims in any case in which the estate could not make creditors whole. The availability to the defendants of the in pari delicto defense would also not affect the trustee's standing, because it is an affirmative defense and not a constitutional bar to the trustee's assertion of the claim.
Eastman v. Union Pacific R.R. Co., 493 F.3d 1151 (10th Cir. July 6, 2007) (Chapter 7 debtor was judicially estopped from pursuing personal injury claim not disclosed in bankruptcy case. Debtor initiated personal injury litigation nine months before filing Chapter 7 petition but did not schedule the action or disclose it at S341 meeting. Post-discharge, trustee learned of the litigation, reopened the bankruptcy case, settled with two of the defendants and paid all allowed claims in full. Debtor was then resubstituted as the real-party-in-interest in the personal injury litigation, and the remaining defendants sought dismissal. Although the debtor claimed that his failure to disclose was the result of ignorance, the court found that the debtor knew of the litigation and had a motive for non-disclosure, making the application of judicial estoppel appropriate.)
Sells v. Porter (In re Porter), 375 B.R. 822 (8th Cir. Sept. 21, 2007) (Prepetition jury verdict that debtor engaged in retaliation against employee unlawful under 42 U.S.C. S 2000e-3(a) collaterally estopped debtor from arguing in adversary proceeding that the debt was not for willful and malicious injury. Debtor's retaliatory actions against employee were willful because the debtor purposefully took action against the employee based on her report of sexual harassment by debtor's business partner. Debtor's actions were malicious because he intended to harm the employee when he retaliated against her. Accordingly, bankruptcy court properly granted employee summary judgment that the debt was non-dischargeable under S 523(a)(6).)
In re Dollie's Playhouse, Inc., 481 F.3d 998 (7th Cir. Apr. 9, 2007) (Debtor's adversary proceeding against former landlord for breach of fiduciary duty and conversion was barred by res judicata and full faith and credit statute pursuant to 28 U.S.C. S 1738, where Debtor and landlord had
