Is Suing a Third Party Based on the Texas Bankruptcy Code Permissible ?
Generally, the automatic stay provision of section 362 of the Bankruptcy Code does not extend to actions against parties other than the debtor.
Paine v. Sealey, 956 S.W.2d 803, 807 (Tex. App.-- Houston [14th Dist.] 1997, no pet.);
HBA East, Ltd. v. JEA Boxing Co., Inc., 796 S.W.2d 534, 536 (Tex. App.--Houston [1st Dist.] 1990, writ denied);
Audio Data Corp. v. Monus, 789 S.W.2d 281, 286 (Tex. App.--Dallas 1990, no writ).
An exception to this general rule is sometimes utilized in situations where the assets of the bankruptcy estate would be jeopardized in allowing court proceedings to proceed against the co-defendant. See Beutel v. Dallas City Flood Control, 916 S.W.2d 685, 692 (Tex. App.--Waco 1996, writ denied).
Such a situation exists when the debtor and non-bankrupt party are closely related or "when there is such an identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment against the debtor." S.I. Acquisition, Inc. v. Eastway Delivery Serv., Inc., 817 F.2d 1142, 1148 (5th Cir. 1987).
But, to be entitled to the exception to the rule, the co-defendant must demonstrate either that:
(1) an identity between the debtor and the co-defendant exists such that the debtor may be said to be the "real party defendant" and the judgment against the co-defendant will, in effect, be a judgment against the debtor;
(2) extending the stay against the co-defendant contributes to the debtor's