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SIDNEY F. MANNING v. JEFFREY L. FELTMAN ET AL.
(AC 35482)
DiPentima, C. J., and Keller and Borden, Js.
Argued December 4, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Scott M. Schwartz, for the appellant (plaintiff).
Robert J. Piscitelli, for the appellees (defendant
George El-Achkar et al.).
Opinion
KELLER, J. The plaintiff in this foreclosure action,
Sidney F. Manning, appeals from the judgment of dis-
missal rendered by the trial court in favor of the defen-
dants Georges El-Achkar and Homeowners Finance
Company (Homeowners).1 The court concluded that it
lacked subject matter jurisdiction over the foreclosure
action after determining that the plaintiff lacked stand-
ing because he failed to list the note and mortgage deed
at issue in his foreclosure complaint as an asset in his
1995 bankruptcy petition. The court ruled that the note
and mortgage remain the property of the bankruptcy
estate, not the plaintiff. On appeal, the plaintiff claims
that the court erred in granting the defendants’ motion
to dismiss because (1) the court should have abstained
from deciding bankruptcy law issues, stayed the case,
and referred such issues to the Bankruptcy Court; (2)
the defendants lacked standing to raise bankruptcy
issues; and (3) the court should have substituted the
bankruptcy trustee as a party plaintiff. We affirm the
judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. On January 31, 2012,
the plaintiff filed this foreclosure action. In his com-
plaint, he alleged that by a mortgage note dated January
9, 1987, Jeffrey L. Feltman, Gary Bengston, Ricky L.
Bengston, Ronald O. Price, and Theresa A. Price2 prom-
ised to pay him the principal sum of $35,000. By mort-
gage deed of that same date, Feltman, to secure
repayment of the note, mortgaged to the plaintiff a
certain piece or parcel of land owned by Feltman known
as 221 Phoenix Street in Vernon. This mortgage was
recorded on January 21, 1987, in the town land records.
The plaintiff further alleged that the parties at issue
had defaulted on the payments on the note and he was
exercising his option to accelerate the entire balance
due, to declare the note to be immediately due and
payable with interest accrued from January 9, 1987,
plus attorney’s fees and costs of collection, all as pro-
vided for in the note, and to foreclose on the mortgage
securing the note. The plaintiff also alleged that Home-
owners had an interest in the proceedings as the holder
of two mortgages on the property, one in the amount
of $39,000, dated April 27, 2011, and the other in the
amount of $39,900, dated June 27, 2011. Both mortgages
are recorded in the town land records. The current
owner of the property is alleged to be El-Achkar.
On May 9, 2012, El-Achkar filed an answer, five spe-
cial defenses, and a counterclaim to the plaintiff’s com-
plaint. The counterclaim sought to quiet title to the
property at 221 Phoenix Street in Vernon. On August
21, 2012, the plaintiff filed an answer and special
defenses to El-Achkar’s counterclaim and a reply to his
special defenses. El-Achkar filed a reply to the plaintiff’s
special defenses on October 1, 2012. Homeowners filed
an answer and five special defenses identical to those
of El-Achkar on October 24, 2012.
On January 29, 2013, the defendants jointly filed a
motion to dismiss. Their motion claimed that the court
lacked subject matter jurisdiction due to the plaintiff’s
lack of standing because the mortgage and note remain
assets of the plaintiff’s chapter 7 bankruptcy estate as
a result of the plaintiff’s failure to list the note and
mortgage as an asset in his bankruptcy petition. The
plaintiff filed an objection to the motion on February
19, 2013. In his objection, the plaintiff stated: ‘‘In 1995,
the plaintiff filed a petition for relief in bankruptcy
under chapter 7 [of the United States Bankruptcy Code].
At the time, he was represented [by counsel]. Attorney
Barbara Hankin was appointed trustee and presided
over the bankruptcy case. The case was closed as a no
asset case in 1997.’’ The plaintiff further asserted: ‘‘[A]t
the time of [his bankruptcy] filing, his business bank-
ruptcy counsel advised him that he did not have to list
assets such as this mortgage that had no value at the
time of filing [bankruptcy]. In the case of the instant
mortgage deed, there were numerous liens ahead of the
plaintiff’s mortgage on the property, and consequently
there was no equity for the position of the mortgage.
. . . At the time that the mortgage was made, there
were [fifteen] encumbrances on the property ahead of
the subject mortgage. Eventually over almost two
decades, these prior liens were paid off, and now there
is equity in the premises for this mortgage. At the time
of the bankruptcy case, there was no equity for the
estate. Assumedly, the reason for the advice of bank-
ruptcy counsel was that the trustee would have aban-
doned the property for lack of equity for creditors. The
value of bankruptcy claims and assets is done as of the
date of filing.’’3 (Citations omitted.) The plaintiff also
argued that the motion to dismiss was a delay tactic
on the part of the defendants, and that he should be
considered the record owner, notwithstanding that the
defendants sought to force him to reopen a long closed
bankruptcy case. He further suggested that ‘‘in the event
that the court believes that the plaintiff does not pres-
ently have standing, both the equities and judicial econ-
omy compel holding this action in abeyance until the
plaintiff can reopen the 1995 bankruptcy case and
obtain a waiver of the then worthless asset.’’
On February 19, 2013, the court, Sferrazza, J., issued
a decision granting the defendants’ motion to dismiss.4
The court, noting its familiarity with the issue of stand-
ing raised by the defendants, ruled: ‘‘There is no issue
that there was a chapter 7 bankruptcy filed. There is
no issue that [the mortgage] wasn’t listed or . . . aban-
doned by the bankruptcy trustee so that the plaintiff
could bring this action.5
‘‘When the plaintiff went into bankruptcy, all of [his]
assets, including a property interest in a [chose in]
action became the property of the bankruptcy [estate]
. . . . And if a debtor fails to list a claim including a
[chose in] action, as an asset when he files [for] bank-
ruptcy relief, that asset remains a part of the bankruptcy
estate when the case is closed by virtue of [11 U.S.C.
§ 554 (d) (2012)]. And a debtor who fails to list a claim
cannot pursue the claim for his own benefit unless the
trustee has abandoned it. . . . So, consequently, the
plaintiff in this case lacks standing to [foreclose] this
mortgage.’’ (Citation omitted; footnote added.) This
appeal followed.
‘‘The standard of review for a court’s decision on a
motion to dismiss [under Practice Book § 10-31 (a) (1)]
is well settled. A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the court’s ultimate
legal conclusion and resulting [determination] of the
motion to dismiss will be de novo. . . . When a . . .
court decides a jurisdictional question raised by a pre-
trial motion to dismiss, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . . The motion
to dismiss . . . admits all facts which are well pleaded,
invokes the existing record and must be decided upon
that alone. . . . In undertaking this review, we are
mindful of the well established notion that, in determin-
ing whether a court has subject matter jurisdiction,
every presumption favoring jurisdiction should be
indulged.’’ (Citations omitted; internal quotation marks
omitted.) Dayner v. Archdiocese of Hartford, 301 Conn.
759, 774, 23 A.3d 1192 (2011). ‘‘A motion to dismiss
admits all facts well pleaded and invokes any record
that accompanies the motion, including supporting affi-
davits that contain undisputed facts.’’ (Internal quota-
tion marks omitted.) Stevenson v. Peerless Industries,
Inc., 72 Conn. App. 601, 606, 806 A.2d 567 (2002).
‘‘A motion to dismiss tests . . . whether, on the face
of the record, the court is without jurisdiction.’’ (Inter-
nal quotation marks omitted.) Cox v. Aiken, 278 Conn.
204, 211, 897 A.2d 71 (2006). ‘‘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.’’ (Internal quotation marks omitted.)
Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d
266 (2008).
‘‘The issue of standing implicates [the] court’s subject
matter jurisdiction. . . . Standing is the legal right to
set judicial machinery in motion. One cannot rightfully
invoke the jurisdiction of the court unless he [or she]
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 contro-
versy. . . . When 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
. . . . ’’ (Citations omitted; internal quotation marks
omitted.) AvalonBay Communities, Inc. v. Orange, 256
Conn. 557, 567–68, 775 A.2d 284 (2001).
‘‘Any claim of lack of jurisdiction over the subject
matter cannot be waived; and whenever it is found after
suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the judicial
authority shall dismiss the action.’’ Practice Book § 10-
33. Once the issue of subject matter jurisdiction has
been raised, the court must resolve it prior to proceed-
ing further with the case. See Figueroa v. C & S Ball
Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). ‘‘Whenever
the absence of jurisdiction is brought to the notice of
the court or tribunal, cognizance of it must be taken
and the matter passed upon before it can move one
further step in the cause; as any movement is necessar-
ily the exercise of jurisdiction.’’ (Internal quotation
marks omitted.) Baldwin Piano & Organ Co. v. Blake,
186 Conn. 295, 297, 441 A.2d 183 (1982).
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to hear the cause.
. . . Because standing implicates the court’s subject
matter jurisdiction, the plaintiff ultimately bears the
burden of establishing standing. . . . Furthermore, [a]
trial court’s determination that it lacks subject matter
jurisdiction because of a plaintiff’s lack of standing is
a conclusion of law that is subject to plenary review
on appeal. . . . We conduct that plenary review, how-
ever, in light of the trial court’s findings of fact, which
we will not overturn unless they are clearly erroneous.’’
(Citations omitted; internal quotation marks omitted.)
Seymour v. Region One Board of Education, 274 Conn.
92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126
S. Ct. 659, 163 L. Ed. 2d 526 (2005).
I
The plaintiff’s first claim is that the court, rather
than dismissing his foreclosure complaint, should have
‘‘abstained’’ from deciding federal bankruptcy law
issues and referred such issues to the Bankruptcy Court
where the plaintiff’s case was pending in 1995. The
plaintiff does not dispute that when he filed for chapter
7 bankruptcy in 1995, on the advice of his bankruptcy
counsel, he never listed the note or mortgage as assets.
It is the plaintiff’s undisputed failure to schedule the
mortgage as an asset when he filed for bankruptcy that
is the crux of the standing issue, because the failure
of the plaintiff to list the note and mortgage on his
bankruptcy schedules resulted in the subject property
remaining the property of the bankruptcy estate rather
than the plaintiff.6
‘‘The debtor must file a formal statement with the
Bankruptcy Court including a schedule of his or her
assets and liabilities. See 11 U.S.C. § 521 (a) (1) (B) (i).
. . . Property that is scheduled pursuant to 11 U.S.C.
§ 521 (1), but not administered by the plan, is aban-
doned to the debtor by operation of law at the close of
the bankruptcy case. See 11 U.S.C § 544 (c). By contrast,
property that is not formally scheduled is not aban-
doned and therefore remains part of the estate. See 11
U.S.C. § 554 (d)7 . . . . Courts have held that because
an unscheduled claim remains the property of the bank-
ruptcy estate, the debtor lacks standing to pursue the
claim after emerging from bankruptcy, and the claims
must be dismissed.’’ (Citations omitted; internal quota-
tion marks omitted.) Assn. Resources, Inc. v. Wall, 298
Conn. 145, 165, 2 A.3d 873 (2010).
Bankruptcy courts have held that unscheduled notes
or mortgages remain the property of the bankruptcy
estate even after the case is closed. See In re Kane,
United States Bankruptcy Court, Docket No. 09-12470,
(Bankr. N.D. Cal. July 12, 2010) (rejecting debtor’s argu-
ment that estate had abandoned note by operation of
law when note never properly scheduled so trustee
could make knowing and intelligent decision as to
whether to administer it); In re Orth, 251 B.R. 333,
334–35 (Bankr. W.D. Mich. 2000) (bankruptcy trustee
entitled to proceeds toward satisfaction of note and
mortgage granted to debtors upon sale of property when
debtors failed to list note and mortgage as assets in
their bankruptcy filing); In re Harris, 32 B.R. 125,
126–27 (Bankr. S.D. Fla. 1983) (debtors who filed for
bankruptcy but failed to schedule their interest in two
mortgages upon belief they lacked appreciable value
not entitled to proceeds upon discharge of two mort-
gages after bankruptcy case concluded; court awarded
proceeds to bankruptcy estate).
The plaintiff also does not have standing to pursue
causes of action that are the rightful property of a bank-
ruptcy estate. See Channer v. Loan Care Servicing
Center, Inc., United States District Court, Docket No.
3:11-cv-135 (SRU) (D. Conn. November 1, 2011) (debtor
or former debtor does not have standing to pursue
claims that constitute property of bankruptcy estate);
Tilley v. Anixter, Inc., supra, 332 B.R. 507–511 (plaintiff
lacked standing to pursue intentional infliction emo-
tional distress claim because he failed to schedule it in
bankruptcy and claim remained estate property).
If the plaintiff lacks standing, the court must dismiss
the action; it has no jurisdiction to take any further
action, such as ordering a stay of the foreclosure pro-
ceeding to seek the advice of the federal bankruptcy
court, a procedure for which the plaintiff presents no
authority given the fact that his bankruptcy case was
closed years ago. The case he does cite, In re Crocker,
362 B.R. 49 (B.A.P. 1st Cir. 2007), is distinguishable
from the present case in that it involved a debtor who
did file a motion to reopen his bankruptcy case after
it had been closed to resolve a question of dischargeabil-
ity. In his appellate brief, the plaintiff spends consider-
able time speculating as to the possible consequences
of pursuing a motion to reopen his bankruptcy case.
He admits in his brief the following: ‘‘It is apparent
from review of the relevant bankruptcy law concerning
motions to reopen a case based upon omitted . . .
assets that the bankruptcy court could take, in its dis-
cretion, various actions concerning the motion, and
different results could obtain, based upon the position
of the [bankruptcy] court and the trustee.’’8 Thus, he
concedes that the determination must occur in the
bankruptcy court venue, but never explains why he has
failed to pursue such a remedy, despite having had
ample time in which to do so. ‘‘[I]t is the burden of the
party who seeks the exercise of jurisdiction in his favor
. . . clearly to allege facts demonstrating that he is a
proper party to invoke judicial resolution of the dis-
pute.’’ (Internal quotation marks omitted.) Wilcox v.
Webster Ins., Inc., 294 Conn. 206, 213–14, 982 A.2d 1053
(2009). Because the plaintiff bears the burden of estab-
lishing standing, the burden is on him to move to reopen
the bankruptcy case to resolve the impasse created by
§ 554 (d) of the Bankruptcy Code.9 Unless the Bank-
ruptcy Court orders otherwise, property of the estate
that is not abandoned and not administered in a case
remains the property of the estate.
As noted by our Supreme Court, ‘‘the integrity of the
bankruptcy system depends on full and honest disclo-
sure by debtors of all their assets. The courts will not
permit a debtor to obtain relief from the [B]ankruptcy
[C]ourt by representing that no claims exist and then
subsequently to assert those claims for his own benefit
in a separate proceeding. The interests of both the credi-
tors, who plan their action in the bankruptcy proceeding
on the basis of information supplied in the disclosure
statements, and the [B]ankruptcy [C]ourt, which must
decide whether to approve the plan of reorganization
on the same basis are impaired when the disclosure
provided by the debtor is incomplete.’’ (Internal quota-
tion marks omitted.) Assn. Resources, Inc. v. Wall,
supra, 298 Conn. 170–71.
The undisputed facts before the trial court readily
support the court’s determination that the plaintiff
lacked standing to bring the present action. Accord-
ingly, we conclude that the court properly determined
that it lacked subject matter jurisdiction and dismissed
the plaintiff’s complaint. The plaintiff is unable to dem-
onstrate, in the absence of jurisdiction, that the immedi-
ate dismissal of the action was improper or that any
further movement by the court was warranted.
II
In his second claim, the plaintiff argues that the defen-
dants lacked standing to raise any ‘‘bankruptcy issues’’
in their motion to dismiss because ‘‘[t]he only interest
they have at all is that the property that they have
an interest in is subject to [the plaintiff’s] preexisting
mortgage.’’ This claim is unsupported by reference to
any legal authority and warrants only a brief discussion.
Both defendants are alleged in the plaintiff’s com-
plaint to have a title or interest in the property that a
foreclosure judgment will affect. Any party, or the court
itself, can raise the issue of subject matter jurisdiction
at any time. It matters not how or by whom the question
of jurisdiction is raised. Woodmont Assn. v. Milford,
85 Conn. 517, 524, 84 A. 307 (1912). Because subject
matter jurisdiction cannot be conferred by waiver or
consent; Samson v. Bergin, 138 Conn. 306, 309, 84 A.2d
273 (1951); the court must address the question, suo
motu if necessary, even in the absence of a motion.
Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81
(1946). ‘‘When 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 and
not whether the controversy is otherwise justiciable,
or whether, on the merits, the plaintiff has a legally
protected interest that the defendant’s actions have
invaded.’’ (Internal quotations marks omitted.) Steeneck
v. University of Bridgeport, 235 Conn. 572, 579, 668
A.2d 688 (1995). Thus, we are not persuaded that the
defendants lacked the ability to file a motion to dismiss.
See, e.g., Channer v. Loan Care Servicing Center, Inc.,
supra, United States District Court, Docket No. 3:11-
cv-135 (SRV).
III
In his third claim, the plaintiff challenges the court’s
judgment on the ground that, for the defendants, rather
than filing a motion to dismiss, ‘‘a more appropriate
motion would have been a motion to substitute [a] party
plaintiff’’ that was selected by the Bankruptcy Court.
Like the plaintiff’s second claim, this claim is summarily
briefed, is unsupported by any authority, and warrants
only a brief analysis.
Neither the defendants nor the court were obligated
to attempt to establish the plaintiff’s standing by seeking
to move to substitute a more appropriate plaintiff.10 It
was incumbent upon the plaintiff to seek to have a
proper party plaintiff substituted for him under General
Statutes § 52-109. See DiLieto v. County Obstetrics &
Gynecology Group, Superior Court, Judicial District of
Waterbury, Docket No. X02-CV-97-0150435-S, (January
27, 2000) (26 Conn. L. Rptr. 345) (plaintiffs’ and bank-
ruptcy trustee’s pending motion to add or substitute
trustee as party plaintiff could be granted under author-
ity of § 52-109, and therefore defendants’ motions to
dismiss for lack of subject matter jurisdiction properly
were denied). Because the plaintiff made no effort to
substitute the bankruptcy trustee prior to the court’s
dismissal, he is now obligated to reopen his bankruptcy
case to properly administer the note and mortgage as
assets, and it will then be up to a trustee whether to
abandon these assets. Only if such assets are abandoned
can the plaintiff proceed with confidence that the pro-
ceeds from any foreclosure he pursues in the future, if
successful, are rightfully his.11
The judgment is affirmed.
In this opinion DiPentima, C. J., concurred.
1
El-Achkar is the current owner of the property sought to be foreclosed.
Homeowners claims an interest in the property by virtue of two mortgages
it holds on the property. The other named defendants are Jeffrey L. Feltman
(the former owner of the property), Gary Bengston, Ricky L. Bengston,
Town and Country Veterinary Associates, P.C., the Department of Revenue
Services, the United States Internal Revenue Service, and Ford Motor Credit
Company. Connecticut Attorneys Title Insurance Company filed an appear-
ance as an entity with a legal interest in the cause on appeal. Feltman and
the Bengstons were signatories on a note promising to pay the plaintiff the
sum of $35,000, which was secured by a mortgage from Feltman to the
plaintiff. The complaint alleges that all the other defendants hold subsequent
interests in the property being foreclosed. None of these other defendants
are involved in this appeal. In this opinion, we refer to Georges El-Achkar
and Homeowners collectively as the defendants, and individually by name
where appropriate.
2
Ronald O. Price and Theresa A. Price, originally named as defendants,
were removed as party defendants from the case.
3
There is nothing in the record that establishes the plaintiff’s assertion
that the mortgage had no value at the time he filed for bankruptcy. The
record reflects that, at the time of the filing, the plaintiff never presented
an accurate determination as to the unpaid balances of the prior liens or
the fair market value of the property.
4
Although the record does not contain a written memorandum of decision
or a signed transcript regarding the court’s decision granting the motion to
dismiss, the plaintiff has filed an unsigned transcript of the court’s decision.
Although Practice Book § 64-1 (a) provides that a transcript of an oral
memorandum of decision ‘‘shall be signed by the trial judge,’’ we have
deemed the record adequate for review despite the lack of a signature on
the transcript where, as here, the unsigned transcript ‘‘contains a sufficiently
detailed basis for the trial court’s decision.’’ Thompson Garden West Condo-
minium Assn., Inc. v. Masto, 140 Conn. App. 271, 274 n.2, 59 A.3d 276
(2013). On the last page of the transcript, the court indicated that its ruling
‘‘be transcribed under Practice Book § 64-1 for purposes of appeal,’’ signaling
its intention that the transcript constitutes its oral decision in this matter.
5
On appeal, the plaintiff does not dispute these factual findings by the
court.
6
The plaintiff does not suggest any facts that would excuse his failure to
list the note and mortgage on the bankruptcy schedule of assets, such as
that his interest in the note and mortgage did not accrue before the close
of his bankruptcy estate, that he scheduled the claim on his bankruptcy
petition and the trustee failed to administer it before the close of the estate,
or that the bankruptcy trustee gave notice to his creditors or held a hearing
with regard to the mortgage and the note. See Tilley v. Anixter, Inc., 332
B.R. 501, 507–508 (Bankr. D. Conn. 2005).
7
Section 554 (d) of title 11 of the United States Code provides: ‘‘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.’’
8
Section 350 (a) of title 11 of the United States Code provides: ‘‘After an
estate is fully administered and the court has discharged the trustee, the
court shall close the case.’’ Rule 5010 of the Federal Rules of Bankruptcy
Procedure provides in relevant part: ‘‘A case may be reopened on motion
of the debtor or other party in interest pursuant to § 350 (b) of the [Bank-
ruptcy] Code. In a chapter 7 . . . case a trustee shall not be appointed by
the United States trustee unless the court determines that a trustee is neces-
sary to protect the interests of creditors and the debtor or to insure efficient
administration of the case.’’ Accordingly, because the plaintiff’s bankruptcy
case is closed, there is no longer a designated trustee who could be substi-
tuted as a party plaintiff, and there may not be one appointed even if the
case is reopened.
9
Whether either of the defendants could move to reopen the bankruptcy
case is doubtful. Although 11 U.S.C. § 350 (b) provides that ‘‘[a] case may
be reopened in the court in which such case was closed to administer assets,
to accord relief to the debtor, or for other cause,’’ and Rule 5010 of the
Federal Rules of Bankruptcy Procedure gives the debtor or any other party
in interest the right to file a motion to reopen, parties who do not fall into
the category of debtor or creditor may not have standing to do so. 3 Collier,
Bankruptcy (A. Resnick & H. Sommer eds., 16th Ed. 2011) § 350-03 [8], pp.
350–15 through 350–16; see also In re Alpex Computer Corp., 71 F.3d 353,
356–58 (10th Cir. 1995) (corporation allegedly owing money to debtor did
not have standing to reopen case, even if corporation might be affected by
how trustee interpreted plan as permitting litigation against it).
10
Practice Book § 9-18 provides: ‘‘The judicial authority may determine
the controversy as between the parties before it, if it can do so without
prejudice to the right of others; but, if a complete determination cannot be
had without the presence of other parties, the judicial authority may direct
that they be brought in. If a person not a party has an interest or title which
the judgment will affect, the judicial authority, on its motion, shall direct
that person to be made a party.’’
11
We assume that, in pursuing the motion to dismiss, El-Achkar duly
considered the effect, if any, that the lack of a decision from the Bankruptcy
Court or trustee may have on the pursuit of his counterclaim to quiet title
to the subject property.