STEPHEN S. MITCHELL, United States Bankruptcy Judge.
Before the court is a motion filed by the debtor to appoint special counsel for the purpose of pursuing a tort claim for the benefit of the bankruptcy estate. Because it appears that the tort claim in question remains the property of the bankruptcy estate in a prior case, the motion will be denied without prejudice to the filing of a motion to reopen the prior case.
Background
Daniel L. Compel ("the debtor") filed a voluntary chapter 7 petition in this court on March 27, 1996, Case No. 96-11360-DOT, and was granted a discharge on June 28, 1996. In the interim, the trustee had filed a report of no distribution on May 1, 1996, and the case was thereafter closed on July 3, 1996. The present chapter 13 case was filed on October 9, 1998, and a plan of repayment was confirmed on February 18, 1999. The plan provides primarily for the curing of a mortgage against the debtor's real estate. Although it nominally projects a 100% dividend to unsecured creditors, this is something of an illusion, since the debtor's schedules list no unsecured claims.
The present motion, which was filed on December 18, 2000, represents that the debtor has a pending tort claim, sounding in nuisance, wrongful flooding, and trespass, in the Circuit Court of Prince William County, Virginia, against his next door neighbors, Saundria and Clifford Peele, for $30,000 in compensatory damages and $500,000 in punitive damages arising from a water leak that allegedly occurred on December 3, 1995, resulting in damage to the debtor's townhouse at 3664 Tavern Way, Triangle, Virginia. The motion seeks entry of an order authorizing the law firm of Harrison and Hughes, P.C. to represent the debtor on a contingent fee basis to pursue the claim as an asset of the bankruptcy estate.
Discussion
The problem with the present motion is that any claim against the Peeles arising from the alleged December 3, 1995, water leak is property of the bankruptcy estate in the prior chapter 7 case, not of the bankruptcy estate in the present chapter 13 case, and only a trustee in the prior chapter 7 case has standing to pursue it unless that case is reopened and the cause of action is abandoned.
The file in the prior chapter 7 case is in storage at the Federal Records Center in Philadelphia, but the court assumes, for the purpose of the present motion, that no claim against the Peeles was listed on the schedule of assets in that case. The court need not assume any improper motive or attempt to conceal: quite possibly, the debtor simply had not focused on the fact that he might have a claim. Nevertheless, causes of action possessed by a debtor on the filing date — whether or not the subject of pending litigation — are property of the bankruptcy estate. Tignor v. Parkinson, 729 F.2d 977, 981 (4th Cir. 1984). This is true even if the cause of action has not matured under state law, so long as it has its genesis in the debtor's prebankruptcy past. Segal v. Rochelle, 382 U.S. 375, 380, 86 S.Ct. 511, 515, 15 L.Ed.2d 428 (1966); Field v. Transcontinental Ins. Co., 219 B.R. 115 (E.D. Va. 1998) (Ellis, J.), aff'd, 173 F.3d 424 (4th Cir. 1999). Under well-settled law, the debtor's failure to schedule the claim against the Peeles means that it remains property of the chapter 7 bankruptcy estate even after the bankruptcy case is closed, since the closing of a bankruptcy case operates as an abandonment only of scheduled property. § 554(d), Bankruptcy Code; Tyler House Apts., Ltd. v. U.S., 38 Fed.Cl. 1, 6 (1997). The problem, then, is one of standing, since the trustee is the sole representative of the bankruptcy estate. § 323, Bankruptcy Code. See In re Educators Group Health Trust, 25 F.3d 1281, 1284 (5th Cir. 1994) ("If a cause of action belongs to the estate, then the trustee has exclusive standing to assert the claim."); Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d 945, 947 (6th Cir. 1997); Detrick v. Panalpina, Inc., 108 F.3d 529, 535-36 (4th Cir. 1997), cert. denied, 522 U.S. 810, 118 S.Ct. 52, 139 L.Ed.2d 17 (1997).
Since the claim against the Peeles remains an asset of the prior chapter 7 bankruptcy estate, it is simply not an assert of the chapter 13 estate. The proper procedure would be to file a motion to reopen the chapter 7 case and have a trustee appointed. § 350(b), Bankruptcy Code; Fed.R.Bankr.P. 5010. Amended schedules could then be filed in that case listing the claim. The trustee could decide to pursue the claim for the benefit of the creditors in that case (with any excess recovery going to the debtor) or could determine with court approval to abandon the claim. If abandoned, the claim would then become an asset of the chapter 13 case, and the motion to retain counsel could be renewed.
The former chapter 7 trustee, Robert G. Mayer, has since been appointed as a judge of this court, and a new trustee would have to be appointed in any event.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The motion to appoint counsel is denied without prejudice to its renewal if the tort claim is abandoned as an asset of the chapter 7 bankruptcy estate and without prejudice to the debtor's right to seek reopening of the chapter 7 case for the purpose of administering or abandoning the tort claim.
2. The clerk will mail a copy of this order to the debtor, proposed counsel, the chapter 13 trustee, and the United States Trustee.