A husband and wife have an AB trust into which all of their real property was transferred. Husband hires a contractor to do work on a few of their rental property homes. Husband files suit against the contractor as an individual (i.e., "John Doe, Plaintiff") alleging violations of B&P §7031(b), negligence, etc. Is he considered a real party in interest with standing to sue the contractor in an individual capacity, or must he sue as "John Doe as Trustee of the Doe Family Trust?" Thank you!
If the property has been transferred to the trust-then the lawsuit would be filed by the trustee.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
I agree with Mr. Pippen. Lawsuits must be brought by the real party in interest. If any person other than a real party in interest brings an action, it is subject to general demurrer. At common law, where cause of action is prosecuted on behalf of express trust, trustee is the “real party in interest” because trustee has legal title to the cause.
Richard A. Rodgers, Esq.
200 N. Westlake Blvd. Ste 201
Westlake Village, CA 91362
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I agree with both of the other responses. The husband appears to have no remaining interest in the home and cannot sue on behalf of the trust. There is, however, a potential for a claim based on contract law. If the husband contracted in his individual name for the work, then it is possible he could pursue a breach of contract claim against the contractor. The home may be owned by the trust. But the contractual relationship could still be with the individuals. I believe that you would need an attorney to look at this and determine whether or not the pleadings are correct.
The practical answer is that, even if the suit is not filed correctly, the court will almost certainly allow the plaintiff to amend the complaint.
*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.
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