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Click here for the full text of this decision FACTS: A trustee in bankruptcy brought an adversary action under 11 U.S.C. �548 to recover assets from the bankrupt debtor’s former husband, to whom the debtor had transferred property pursuant to a divorce decree. The bankruptcy court granted summary judgment in the former husband’s favor, the district court affirmed, and the trustee now appeals to this court. HOLDING: Affirmed. The bankruptcy court held that the state court’s division of the Erlewines’ (Margaret Anne Erlewine and Mark Erlewine) marital property could not be set aside under 11 U.S.C. �548(a)(1)(B) as a transfer for less than reasonably equivalent value. The trustee’s challenge to the divorce decree is not barred by the traditional preclusion doctrines of res judicata or collateral estoppel. The federal full faith and credit statute requires that the court gives state court judgments the same preclusive effect that they would enjoy in the courts of the rendering state. 28 U.S.C. �1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373 (1985). Under Texas law, the preclusion doctrines of res judicata and collateral estoppel apply only against a litigant who was a party to, or who is in privity with a party to, the original suit. The trustee was not a party to the divorce action. Nor can the trustee be considered the debtor’s privy, for two parties are said to be in privity when they share an “identity of interests in the basic legal right that is the subject of litigation.” The interests of the debtor in the divorce proceeding and of the trustee in the instant case are, however, quite distinct. As this court observed in Coleman v. Alcock, 272 F.2d 618 (5th Cir. 1959), another case involving a bankruptcy trustee’s attempt to avoid a transfer: “[W]e are of the view that the Trustee is not bound, either on res judicata or judicial collateral estoppel, by the prior state court proceedings. The Trustee is, of course, a successor of the Bankrupt for many purposes. But he is much more both in the extraordinary rights with which the Bankruptcy Act invests him, and as a general representative of the creditors.” As the interests of the debtor’s creditors were not represented in the divorce action, preclusion doctrines do not bar the trustee from vindicating the creditors’ interests in this subsequent avoidance action. The court is not sure that Besing v. Hawthorne (In Re: Besing), 981 F.2d 1488 (5th Cir. 1993), sweeps so broadly as always to prevent a trustee from challenging a divorce decree under �548(a)(1)(B). But in this case the only thing that the trustee can say by way of challenge to the property settlement provided by the divorce decree is that the state court divided the community assets unevenly. Whatever concerns might arise in other cases, this divorce � which was fully litigated, without any suggestion of collusion, sandbagging, or indeed any irregularity � should not be unwound by the federal courts merely because of its unequal division of marital property. OPINION: King, C.J.

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