* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 13 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KEM CLARK,

Plaintiff-Appellant,

v. TRAILINER CORP.; TOTAL INFORMATION SERVICES, INC., d/b/a DAC Services,

Defendants-Appellees. No. 00-5020 (D.C. No. 99-CV-286-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, ANDERSON, and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Kem Clark appeals from the district court ’s order dismissing his case for lack of standing. We affirm. Mr. Clark was in training to become a truck driver for defendant Trailiner, an interstate motor carrier. In accordance with co mpany policy, Trailiner advanced Mr. Clark the costs of going to the traini ng and required safety course. Mr. Clark was to repay Trailiner by regular withdrawals from his paycheck. Mr. Clark quit before he had completed repayment. As a result, Trailiner included the phrase “unauthorized use of company fu nds” on Mr. Clark’s employment history which was transmitted to defendant Total Information Services, Inc., the principal source of employment screening information for the nation’s motor carrier industry. Allegedly because of the inclusion of this phrase on his employment history, Mr. Clark had difficultyfinding jobs in the trucking industry. Eventually he left the industry and ente red welding school. Thereafter, Mr. Clark filed a Chapter 7 bankruptcy petition. He was granted a discharge and the case was closed. Befor e the case was closed, Mr. Clark commenced this action in state court seek ing damages from Trailiner. Mr. Clark claimed that inclusion of the phrase “una uthorized use of company funds” on his employment history had denied him the ability to obtain jobs in the trucking industry. Trailiner removed the case to f ederal court contending that the claim arose under the Federal Fair Credit Reporting Act. See 15 U.S.C. § 1681p.-3-

Trailiner later moved to dismiss the case on the gr ound that Mr. Clark lacked standing to bring the suit because the claim was owned by the bankruptcy estate at the time Mr. Clark filed his complaint . The district court agreed and dismissed the case. Mr. Clark now appeals and argues that hi s claim should not have been dismissed because he subsequently removed the imped iment to the district court’s jurisdiction. We “review[] questions of standing de novo.” Utah v. Babbitt , 137 F.3d 1193, 1203 (10th Cir. 1998). We review the distric t court’s decision to allow joinder or substitution of a real-party-in-interestunder Fed. R. Civ. P. 17(a) for abuse of discretion. See Scheufler v. General Host Corp. , 126 F.3d 1261, 1270 (10th Cir. 1997). Upon filing for bankruptcy, Mr. Clark was required to list all the assets of his estate. See 11 U.S.C. § 521(1); Browning Mfg. v. Mims (In re Coastal Plains, Inc.) , 179 F.3d 197, 207-08 (5th Cir. 1999) (debtors hav e “an express, affirmative duty to disclose all assets, including contingent and unliquidated claims ”), cert. denied , 120 U.S. 936 (2000). Assets include “all legal o r equitable interests of the debtor in property as of the commencement of th e case.” 11 U.S.C. § 541(a)(1); see, e.g. , Polis v. Getaways, Inc. (In re Polis) , 217 F.3d 899, 902 (7th Cir. 2000) (legal claims are assets of bankruptcy estate, “especially when they are claims for money”). When the bankruptcy action is closed,“properly s cheduled”-4-

assets not otherwise administered revert “to the de btor through abandonment under 11 U.S.C. § 554[(c)]”. Hutchins v. IRS , 67 F.3d 40, 43 (3d Cir. 1995). Assets not properly scheduled remain property of the bankruptcy estate. See § 554(d) (“property of the estate that is not abandon ed under this section and that is not administered in the case remains property of th e estate.”). As a result, the debtor loses all rights to enforce any unscheduled legal claim in his own name.
See Vreugdenhill v. Navistar Int’l Transp. Corp. , 950 F.2d 524, 526 (8th Cir. 1991) (Chapter 7 debtor who failed to schedule pote ntial claim cannot prosecute claim after emerging from bankruptcy); cf. , Stein v. United Artists Corp. , 691 F.2d 885, 893 (9th Cir. 1982) (claims not listed inChapter XI proceedings did not revest in debtor upon bankruptcy discharge). Mr. Clark admits he did not list his claim against defendant. The estate was fully administered and closed. Therefore, this claim remained property of the estate and Mr. Clark lacked standing to prosecute i t. Mr. Clark contends, however, that under Fed. R. Civ. P. 17, the distric t court should not have dismissed this action as he sought to reopen his bankruptcy case, list the claim as an asset, and have the trustee abandon the claim. As a result, the claim would revest in him and he would have standing to prosecute this action. The ultimate issue is whether the rules of standing or Fed. R. Civ. P. 17 govern the disposition of this case. Standing is a ssessed at the time the action is-5-

commenced. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 570 n.5 (1992). Mr. Clark admits that he did not have standing whenthe case commenced. Mr. Clark argues, however, he “cured” the standing problem and therefore, became the real party-in-interest under Rule 17. Rule 17(a) permits the joinder or substitution of the real-party-in-interest to an ac tion. Mr. Clark, however, was not seeking to substitute or join the real-party-in-interest as permitted under Rule 17. He sought to retroactively become the real-party-in-interest and, thus, establish standing. This is not permissible. The district court did not abuse its discretion in not permitting Mr. Clark to take this action. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge