Opinion
FBTCV115029609S
02-26-2016
Beck and Beck, LLC et al. v. James T. Costello
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO DISMISS DEFENDANTS' AMENDED COUNTERCLAIMS AND CROSS CLAIMS #265
Richard E. Arnold, J.
The plaintiffs have moved to dismiss the defendant's Amended Counterclaims and Cross Claims, which allege a breach of contract, a breach of the implied covenant of good faith and fair dealing, professional malpractice and a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiffs argue that the defendant has no standing to pursue these claims, and in addition, the defendant's claims are not justiciable because no actual controversy exists between the plaintiffs and the defendant.
The defendant's Amended Counterclaims is dated September 28, 2015 and is listed as pleading #263.
The plaintiffs argument regarding a lack of standing is based on the claim that the defendant filed for a Chapter 7 Bankruptcy in the United States Bankruptcy Court, District of Connecticut on July 24, 2014 and received a discharge on October 29, 2014. The plaintiffs allege that the defendant failed to schedule his Amended Counterclaims and Cross Claims on his Chapter 7 Voluntary Petition. Accordingly, plaintiffs argue the defendant has no standing to pursue these claims until or unless the Bankruptcy Court makes a judicial determination that the Bankruptcy Trustee has abandoned the defendant's Amended Counterclaims and Cross Claims. Plaintiffs' position is that until such time as the Bankruptcy Trustee has abandoned the Amended Counterclaims and Cross Claims as assets, the defendant is not the real party in interest and this court lacks subject matter jurisdiction, which requires the dismissal of the defendant's Amended Counterclaims and Cross Claims.
Alternatively, the plaintiffs argue that the defendant's claims are not justiciable because no actual controversy exists between the plaintiffs and the defendant. The plaintiffs claim because their services were not the proximate cause of the defendant's receivorship action being dismissed, there is no controversy between the parties. The plaintiffs again request that the court dismiss the defendant's claims for a lack of subject matter jurisdiction.
The defendant has filed an objection to the motion to dismiss arguing he disclosed all potential and real assets, as well as his liabilities in his Chapter 7 Bankruptcy action and clearly listed this present case as a " pending" matter. He argues that the Bankruptcy Trustee abandoned this lawsuit by operation of bankruptcy law and when the defendant was discharged by the Bankruptcy Court, this pending lawsuit " revested" back to the defendant. The defendant also claims his counterclaims are justiciable and that his counterclaims are properly pleaded " with case and controversy."
This case has returned to the trial court due to a reversal and remand from the Appellate Court, which issued its decision on August 11, 2015. See. Beck & Beck, LLC v. Costello, 159 Conn.App. 203, 122 A.3d 269 (2015). In its decision, the Appellate Court summarized the factual and procedural history.
On August 30, 2011, the plaintiff filed this action in small claims court against the defendant seeking to recover unpaid legal fees for its prior representation of the defendant in a receivership action against the defendant's condominium association. The defendant filed a motion to transfer this case to the regular docket of the Superior Court pursuant to Practice Book § 24-21. He also filed an answer, a special defense, and a four count counterclaim alleging breach of contract, breach of the implied covenant of good faith and fair dealing, professional malpractice, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. After the case was transferred, the plaintiff filed a motion to strike the defendant's entire counterclaim on the ground that the defendant's claims were legally insufficient because he '[could not] possibly establish proximate cause or damages . . .' The trial court, Levin, J., granted the plaintiff's motion to strike.
The defendant thereafter moved to cite in the plaintiffs principal, Attorney Kenneth A. Beck, individually, as a counterclaim defendant. After the court granted the defendant's motion to cite in Beck, the defendant filed an amended answer, a special defense, and a counterclaim against the plaintiff, and a parallel cross claim against Attorney Beck. The amended counterclaim and parallel cross claim pleaded claims that were essentially identical to those pleaded in the defendant's stricken counterclaim. The plaintiff thereafter moved to strike the defendant's amended counterclaim on two grounds: first, that the defendant could not prevail on any claim set forth in his counterclaim because he could not prove the causation or damages elements of any such claim; and second, that '[t]he counterclaims and cross claims mirror the previously stricken counterclaims.'
The court, Sommer, J., granted the plaintiff's motion to strike in a memorandum of decision originally filed on July 9, 2013, and later corrected on September 27, 2013. The court determined that the defendant had 'failed to submit a justiciable claim to the court, thus depriving the court of jurisdiction, that is, the authority to decide those claims on their merits, because it lacks jurisdiction as a matter of law.' The court rendered judgment on the counterclaim and cross claim on October 7, 2013, and this appeal followed.Beck & Beck, LLC v. Costello, supra, 159 Conn.App. at 205-06.
The Appellate Court noted that " After the court rendered judgment on the defendant's counterclaim, the case proceeded to trial on the plaintiff's complaint. Following a trial to the court, the court rendered judgment in favor of the plaintiff in the amount of $750 . . ." Beck & Beck, LLC v. Costello, supra, 159 Conn.App. at 204 n.2.
In reversing the trial court's decision granting the motion to strike, the Appellate Court remanded the case back to the trial court for further proceedings. In its decision the Appellate Court found that the trial court had " referred to and relied upon" the record in an underlying receivorship action and in doing so " strayed beyond the permissible bounds of its authority in assessing the legal sufficiency of a claim on a motion to strike." Id., 207-08. The Appellate Court also noted that " [a]fter the court rendered judgment on the defendant's counterclaim, the case proceeded to trial on the plaintiff's complaint. Following a trial to the court, the court rendered judgment in favor of the plaintiff in the amount of $750 . . ." Beck & Beck, LLC v. Costello, supra, 159 Conn.App. at 204 n.2
While the defendant's appeal was pending, he filed a Chapter 7 bankruptcy action on July 24, 2014. The plaintiff's claim that the defendant failed to identify and schedule his Amended Counterclaims and Cross Claims as assets of his bankruptcy estate, which is required by the Bankruptcy Code. Prior to oral argument before the Appellate Court, the plaintiff-appellees filed a motion to dismiss the defendant's appeal, arguing the defendant was not the real party in interest because the Bankruptcy Court never made a judicial determination that the defendant's Amended Counterclaims and Cross Claims were abandoned by the Bankruptcy Trustee. The plaintiffs state that at oral argument the Appellate Court commented that whether the defendant was the real party in interest was for the trial court to determine on a motion to dismiss.
A review of the Appellate Court's record reveals that on February 18, 2015, the Appellate Court issued an order that the plaintiff-appellee's motion to dismiss was ordered " denied without prejudice to the parties addressing oral argument the issue of whether the defendant is the proper party to pursue these claims before the Appellate Court in light of the bankruptcy proceedings." The court's decision in Beck & Beck, LLC v. Costello, supra, 159 Conn.App. 203, ordered only that the Appellate Court remanded this subject case for further proceedings according to law.
A reading of the Appellate Court's decision does not reveal any reference to, or discussion of, the plaintiff-appellees request that the court consider a motion to dismiss. However, the Appellate Court issued a separate order on February 18, 2015 denying without prejudice the plaintiff's request to argue the motion to dismiss at oral argument.
Following the remand from the Appellate Court, the defendant, Costello, with the permission of the court (Hartmere, J.) filed further amended counterclaims dated September 28, 2015. The plaintiffs then filed their subject motion to dismiss dated September 30, 2015. Oral argument was held before the court on November 30, 2015.
I
Standard of Law
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. " A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Richardello v. Butka, 45 Conn.Supp. 336, 717 A.2d 298 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). " A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989).
" In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Villager Pond, Inc v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink; 213 Conn. 548, 567, 569 A.2d 518 (1990). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . .; other types of undisputed evidence; . . . and/or public records of which judicial notice may be taken; . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter-affidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . .; the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein . . ." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
II
Discussion
The plaintiffs' first claim is that the defendant, Costello, lacks standing to prosecute his amended counterclaims and cross claims because the Bankruptcy Court never made a judicial determination that the defendant's Amended Counterclaims and Cross Claims were abandoned by the Bankruptcy Trustee. The defendant in his objection claims the Appellate Court's decision in Beck & Beck, LLC v. Costello, supra, 159 Conn.App. 203 is the controlling precedent for the issues now before this court. That argument is erroneous and unavailing as it may pertain to the present motion to dismiss and the plaintiffs' claim that the defendant lacks the requisite standing to pursue his Amended Counterclaims and Cross Claims. The Appellate Court addressed only the issues involving the trial court's granting of a motion to strike. In its order dated February 18, 2015, the Appellate Court refused to address the plaintiffs' motion to dismiss claiming the defendant lacks standing and remanded the matter back to the trial court for further proceedings according to law. Beck & Beck, LLC v. Costello, supra, 159 Conn.App. 203. Further proceedings involve the present motion to dismiss.
The defendant argues that when he filed his Voluntary Chapter 7 bankruptcy, he listed among his debt obligations, the $750.00 court judgment in favor of the plaintiff, Beck. A review of the copies Bankruptcy forms and filings supplied by the defendant do, in fact, indicate that listed the pending action as a debt to the plaintiffs and identified the docket number of the present case. He claims he also listed his counterclaim, in this matter, which at the time was pending in the Appellate Court. However, a review of his Schedule B-Personal Property form filed in his Bankruptcy matter has been supplied to this court and clearly shows that the defendant when specifically asked about " counterclaims of the debtor" replied he had " None."
The defendant has submitted a sworn affidavit, dated November 21, 2015, where he states he listed his counterclaim action, but the Schedule BPersonal Property form submitted in his Bankruptcy action clearly indicates he did not list any counterclaims. Possibly, due to his selfrepresentation status, the defendant is under the impression that by simply listing the docket number of the present case and the judgment debt owed to the plaintiffs, the Bankruptcy Trustee should be aware of the various pleadings in this case, including the defendant's Amended Counterclaims. Nonetheless, when filing his Schedule B-Personal Property schedule, the defendant was specifically required to answer the question, as to whether or not, he, as the debtor, had any " contingent and unliquidated claims of every nature including tax refunds, counterclaims of the debtor and rights to setoff claims, and he was instructed to give an estimated value of each. (Emphasis added .) In response, the defendant answered " None."
He also states in his legal memorandum of law, that while at a meeting of his creditors which was conducted by the Bankruptcy Trustee, where only he and the Trustee were present, he was questioned by the Trustee about the pending appeal and whether or not the matter had " any merit." The defendant states that he responded that he did not know if the matter had any merit and informed the Trustee he was self-represented in the appeal and the underlying action. There is no indication or evidence that the specific subject of matter of the Amended Counterclaims were discussed by the Trustee or disclosed to the Trustee by the defendant.
On September 17, 2014, the Trustee issued her report certifying that " [t]here is no property available for distribution from the estate." On October 29, 2014, the Bankruptcy Court issued its final decree and ordered that Costello's debts be discharged. On November 13, 2014, the defendant's bankruptcy case was closed . . . It is the defendant's contention that the Trustee did not pursue the claim and by her action in reporting that there was no property available for distribution, has officially and technically abandoned the Amended Counterclaims. The defendant cites several cases in support of his position that the Trustee has abandoned the Amended Counterclaims and revested the action back to the defendant. 11 U.S.C. § 554(c). In support of his position the defendant cites to Rosenshein v. Kleban, 918 F.Supp. 98 (S.D.N.Y., 1996) This court has reviewed Rosenshein v. Kleban, supra, and notes that it does not support the defendant's argument because it is clear that the defendant never listed his amended counterclaims on his Chapter 7 Bankruptcy Schedule B-Personal Property form.
11 U.S.C.A. § 554 Abandonment of property of the estate reads as follows:
Ordinarily, the debtor may recover property of the estate, such as a cause of action, in only two ways. First, upon confirmation of a plan of reorganization, all of the property of the estate vests in the debtor, although only property that was " dealt with by the plan is free and clear of all claims and interests of creditors . . . 11 U.S.C. § 1141(b)-(c). Because undisclosed claims are not dealt with by the plan, they do not revert to the debtor free of the claims of creditors.
Second, property may be removed from the estate if it is abandoned to the debtor. See 11 U.S.C. § 554. Property that is scheduled pursuant to 11 U.S.C. § 521(1), but not administered by the plan, is abandoned to the debtor by operation of law at the close of the bankruptcy case. See 11 U.S.C. § 554(c). By contrast, property that is not formally scheduled is not abandoned and therefore remains part of the estate . Courts have held that because an unscheduled claim remains the property of the bankruptcy estate, the debtor lacks standing to pursue the claims after emerging from bankruptcy, and the claims must be dismissed .(Emphasis added.) Rosenshein v. Kleban, supra, 918 F.Supp. at 102-03.
The defendant also cites to In Re Ozer, 208 B.R. 630 (E.D. New York, 1997). In that case, the matter was before the Court pursuant to a motion made by the Chapter 7 Trustee, seeking to reopen a case closed more than one and one-half years ago pursuant to 11 U.S.C. Section 350(b) and seeking the reappointment as the Trustee to permit him to administer an asset consisting of a personal injury action duly scheduled by Ozer (the " Debtors") in their petition and subsequently abandoned by the Trustee pursuant to 11 U.S.C. Section 554(c). Id., 631. The court found that based on the facts of the case as initially recited by the Trustee, the Trustee lacked standing to make a motion to reopen the case, and there was insufficient cause to grant the extraordinary relief requested by the Trustee. Id.
The court noted that Ozer, the debtor, appeared at the Meeting of Creditors and testified truthfully and accurately regarding liabilities in response to the Trustee's questions regarding the information provided in the debtor's Schedules of Assets and Liabilities and Statement of Financial Affairs. During the Meeting of Creditors, the Trustee examined the Debtor regarding, among other things, the personal injury claim set forth both in the Schedules of Assets and Liabilities and Statement of Financial Affairs. The personal injury claim arose out of an automobile accident in which Maurice Ozer was seriously injured on December 22, 1990. As a result of the accident, Ozer had been left with permanent injuries, including nerve damage. The court found that the Meeting of Creditors was adjourned to and concluded on April 19, 1994, and there were no allegations that the debtor, Ozer, was anything but truthful and candid regarding the disclosure of assets and liabilities. Id.
The Trustee, thereafter, filed his Report of No Distribution on August 11, 1995, and took no action to administer this asset from that time until he was recently contacted by the debtor's state court counsel as to a possible settlement of the personal injury claim. The Trustee's Report of No Distribution provided in pertinent part that the Trustee had made diligent inquiry into the financial affairs of the debtor and the location of the property belonging to the estate; and that there was no property available for distribution from the estate over and above that exempted by law. Subsequent to the filing of the Report of No Distribution and on September 27, 1995, the Court entered a Final Decree, which provided that the Chapter 7 case of the debtor was closed. Id. 631-32.
However, in February 1997, the debtor's personal injury claim was settled in the state court action. In April 1997, the Trustee moved to reopen the debtor's bankruptcy case Id., 632. In refusing to open the bankruptcy case the court stated:
Once an asset is abandoned, it cannot be reached by the trustee in the event he changes his mind. The Trustee's decision to file the Final Report of No Assets was a conscious decision, based on his review of the Debtors' assets and an apparent determination that the Personal Injury Claim was not worth pursuing on behalf of the estate. The Trustee's subsequent decision to move to reopen the case and administer the asset appears to have occurred only as a result of the possibility of a settlement. The Trustee is charged with knowledge of the Bankruptcy Code and Rules, and cannot cavalierly recall the asset back into the estate at this point in time. To sanction the Trustee's conduct would be in complete disregard of the axiom that once an asset is abandoned, the asset is out of the reach of the Trustee and the creditors. In fact, when a trustee abandons the estate's interest in property, the abandonment is to the Debtor as a matter of law.(Internal citations omitted.) Id., 633.
However, while denying the motion to reopen the bankruptcy case, the Ozer court also noted that exceptions to the rule of abandonment of an asset by the trustee are where (i) the trustee is given incomplete or false information of the asset by the debtor, thereby foregoing a proper investigation of the asset; or (ii) the debtor has failed to list the asset on the schedules and petition altogether . The premise behind these exceptions appears to be a finding by the courts that the abandonment could not have been knowing and intentional if the above flaws existed. In effect, abandonment of an asset will not be deemed irrevocable if the trustee has been misled as to the nature or existence of the asset, and in certain instances, if the abandonment takes place due to particularly relevant clerical mistake or inadvertence of the trustee. (Emphasis added.) Id., 633-34.
" Standing is the legal right to set the judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Unisys Corp. v. Department of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991). Indeed, " [w]hen standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Guarnieri v. Guarnieri, 104 Conn.App. 810, 818, 936 A.2d 254 (2007). Significantly, " [i]f a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." Windels v. Envtl. Prot. Comm'n, 284 Conn. 268, 287-89, 933 A.2d 256 (2007).
In support of this argument that the defendant lacks standing to prosecute the Amended Counterclaims and Cross Claims, plaintiff states that on defendant's Chapter 7 Voluntary Petition, he was required to schedule or list any counterclaims and any rights to offset claims under Schedule B, Personal Property, and the defendant failed to do so. In (Internal citations omitted) Correll v. Equifax Check Services, Inc., 234 B.R. 8, 10 (D. Conn.) (1997), the court stated that a plaintiff lacked standing to prosecute a case because the plaintiff failed to schedule and disclose her claims in her bankruptcy petition. The court ruled that her claims were a part of the bankruptcy estate and could only be prosecuted by the trustee in bankruptcy. Id. " Commencement of a bankruptcy case creates an estate which is comprised of " all legal or equitable interests of the debtor in property as of the commencement of the case." Id.; See also, 11 U.S.C. § 541(a)(1).
The plaintiffs have submitted a photocopy of the Schedule B-Personal Property filed in the matter of James T. Costello, Case No. 14-51156 on July 24, 2014. Line 21 is titled " Other contingent and unliquidated claims of every nature, including . . . counterclaims of the debtor and rights to setoff claims. Give estimated value of each." The form indicates that the defendant's response to this inquiry was " None."
Property of the estate also includes causes of action belonging to the debtor which accrued prior to the filing of the bankruptcy petition, and a cause of action is part of the estate even if the debtor fails to schedule the claim in his or her petition." Id. see also, In re Drexel Burnham Lambert Group, Inc., 160 B.R. 508, 514 (S.D.N.Y.1993). Although unscheduled property may be abandoned by the trustee pursuant to § § 554(a) or (b), property not abandoned by the trustee under those sections remains part of the estate even after closure of the bankruptcy case. Id.; In re Drexel Burnham Lambert Group, Inc., supra, 160 B.R. 514 (" any asset not scheduled pursuant to 11 U.S.C. § 521(1) remains property of the bankruptcy estate, and the debtor loses all rights to enforce it in his own name"); 11 U.S.C. § 554(d).
Where an unscheduled claim remains the property of the bankruptcy estate, a debtor lacks standing to pursue that claim after emerging from bankruptcy and the claims must be dismissed. Rosenshein v. Kleban, supra, 918 F.Supp. 98; see also Tuttle v. Equifax Check Services, No. 3:96cv948(WWE), 1997 WL 835055 (D.Conn. June 17, 1997); Raterree v. Chemical Bank, 5:88cv636(EBB) (D.Conn. Nov. 15, 1989). Any causes of action that exist prior to the filing of the bankruptcy petition becomes the property of the bankruptcy estate, regardless of whether or not the debtor schedules these claims on their petition, as required by 11 U.S.C. § 521(1). Tilley v. Anixter, 332 B.R. 501, 507-08 (D. Conn., 2005); Seward v. Devine, 888 F.2d 957, 963 (1989).
The defendant's initial Amended Counterclaims and Cross Claims are causes of action that have existed since August 8, 2012, almost two years prior to the filing of his Chapter 7 Voluntary Bankruptcy Petition on July 24, 2014. These claims remain the property of the Bankruptcy Estate, even though the Bankruptcy Court granted the defendant a discharge under the Bankruptcy Code on October 29, 2014. Unscheduled property, such as the defendant's Amended Counterclaims and Cross Claims can never be abandoned by the Bankruptcy Trustee without the notice and hearing required by the Bankruptcy Code, 11 U.S.C. § 554(a) & (b). " A trustee may abandon scheduled property, i.e., property that has been listed on the bankruptcy petition, either through procedures requiring notice and a hearing, 11 U.S.C. § 554(a) & (b), or by failing to administer it before the close of the bankruptcy case, Id., at § 554(c). Unscheduled property, in contrast, can never be abandoned without the notice and hearing required in sections 554(a) and (b)." Tilley v. Anixter, supra, 332 B.R. at 508; See Correll, supra, 234 B.R. at 10; see also Hutchins v. IRS, 67 F.3d 40, 43 (3d Cir. 1995) (" It is clear that an asset must be properly scheduled in order to pass to the debtor through abandonment under 11 U.S.C. § 554.").
Where an unscheduled claim remains the property of the bankruptcy estate and has not been properly abandoned by the trustee, the debtor may not pursue a cause of action accruing before or during the bankruptcy proceeding. Correll, supra, 234 B.R. at 10. Where an unscheduled claim remains the property of the bankruptcy estate, a debtor, in this case, the defendant Costello, lacks standing to pursue that claim, even after emerging from bankruptcy and his claims must be dismissed. Rosenshein v. Kleban, supra, 918 F.Supp. 98, 103; Tuttle v. Equifax Check Services, Inc., United States District Court, Docket No. 96CV 948, (D.Conn. June 17, 1997); Christophe v. Somerset Capital Group, Superior Court, judicial district of Fairfield at Bridgeport, No. CV065003587S, (March 7, 2007, Matasavage, J.) (motion to dismiss was ultimately denied for a lack of standing because the Bankruptcy Trustee had moved to be added as a plaintiff and the court granted that motion by the Trustee.). The real party in interest to pursue defendant Costello's Amended Counterclaims and Cross Claims is the Bankruptcy Trustee, and that Trustee has not, to date, moved to be added as an additional or substituted plaintiff. Christophe v. Somerset Capital Group, supra, No. CV065003587S.
III
Conclusion and Order
Having determined that the defendant lacks the requisite standing to prosecute his Amended Counterclaims and/or Cross Claims, the court does not need to determine the merits of the claim that the defendant's Amended Counterclaims and/or Cross Claims are non-justiciable. Accordingly for the reasons set forth herein, the plaintiffs' motion to dismiss for the defendant's lack of standing is hereby granted.
(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. (b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. (c) Unless the court orders otherwise, any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title. (d) Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate.