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IN RE RACING SERVICES, INC.

No. 07-1821.

540 F.3d 892 (2008)

In re RACING SERVICES, INC., Debtor. PW Enterprises, Inc., a Nevada Corporation, Appellant, v. North Dakota Racing Commission, a regulatory agency; North Dakota Breeders Fund, a special fund; North Dakota Purse Fund, a special fund; North Dakota Promotions Fund, a special fund; State of North Dakota, a governmental entity, Appellees. Kip M. Kaler, Bankruptcy Trustee for Racing Services, Inc.

United States Court of Appeals, Eighth Circuit.

Filed: August 29, 2008.

Attorney(s) appearing for the Case

Christopher E. Prince, argued, Los Angeles, CA, for appellant.

Roger James Minch, Special Assistant Attorney General, argued, Fargo, ND, for appellee.

Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.

BRIGHT, Circuit Judge.

The Bankruptcy Code expressly authorizes a trustee (or debtor-in-possession) to bring an adversary proceeding to avoid certain transfers as preferential or fraudulent. In some cases, however, courts have allowed creditors to bring such "avoidance claims" if it would benefit the estate. A creditor who brings avoidance claims in place of the trustee is said to possess "derivative standing." In this case, we must decide whether the bankruptcy court...

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