UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF PUERTO RICO

Alfredo Castellanos Bayouth 

v. NH Civil No. 05-ds-021-JD

PR Civil No. 02-2357

Alejandra Guzman Pinal and

Luis Olmos Dueas

O R D E R

As the court has explained repeatedly, because Alfredo

Castellanos Bayouth has filed for bankruptcy protection, he is no

longer the real party in interest, unless the trustee in the

bankruptcy proceeding, John A. Zerbe, abandons this suit as

property of the bankruptcy estate. The court set a deadline for

Zerbe either to notify the court that he abandons the suit or to

file a motion to substitute himself as the plaintiff. Zerbe has

done neither. Instead, Castellanos, acting as counsel for Zerbe,

has filed a response in which he claims not to understand the

court’s previous orders. Therefore, the court will again explain

the consequences of his bankruptcy filing and set a new deadline

for a response from the trustee.

Castellanos filed a voluntary petition for bankruptcy

protection under Chapter 7 on November 11, 2004, and John A.

Zerbe was appointed as the bankruptcy trustee. Castellanos

failed to file a timely notice in this court of his bankruptcy

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filing. On June 21, 2005, Zerbe applied to the bankruptcy court

to retain Castellanos as his counsel for purposes of this

lawsuit. The application was supported by Castellanos’s sworn

affidavit that he was a “disinterested person” as required by 11

U.S.C. § 101(14), including that he “has no connection with the

debtor,” despite the fact that Castellanos is the debtor. The

bankruptcy court approved the application on August 19, 2005.

In the meantime, on August 17, 2005, this court addressed

the effect of Castellanos’s bankruptcy filing and ordered him to

inform the court as to whether he and Castellanos Bayouth were

the same person and also to clarify his statement in his

affidavit that he has no connection with the debtor in his

bankruptcy case. The court also ordered Trustee Zerbe to file a

motion to substitute himself as the plaintiff in this case or a

notice of abandonment of the causes of action. A copy of that

order was sent to the bankruptcy court and to Trustee Zerbe. In

response, the bankruptcy court issued an order that it would

await Castellanos’s compliance with this court’s order of August

17, 2005, to determine whether his appointment as counsel for the

trustee should be vacated. Although Castellanos filed his

amended certificate on September 6, 2005, in which he omitted the

statement that he had no connection to the debtor, the bankruptcy

court has taken no further action.

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As the court explained in detail in the August 17, 2005,

order and repeated in the order issued on September 7, 2005,

Castellanos lacks standing to proceed as a party in this lawsuit

unless and until the bankruptcy trustee files a notice of

abandonment of the causes of action he asserts here. Absent a

notice of abandonment, only Trustee Zerbe has standing to

proceed. Therefore, Trustee Zerbe or properly appointed counsel,

acting on his behalf, must file a motion to substitute Zerbe as

the plaintiff in this case in order to proceed. This case cannot

proceed with Castellanos as the plaintiff because he is not a

party in interest in the case. 

The court expects the bankruptcy court to act promptly in

determining whether it will vacate the appointment of Castellanos

as counsel for Trustee Zerbe, based on Castellanos’s amended

certificate, which does not meet the requirements of § 101(14). 

Trustee Zerbe or his properly appointed counsel, acting on his

behalf, shall file a motion to substitute Zerbe as the plaintiff

in this case, or a notice of abandonment of the causes of action,

on or before September 30, 2005, failing which the case will be

dismissed with prejudice. 

Because the question of the proper party plaintiff in this

case remains unresolved, the deadline for the plaintiff’s

response to the defendant’s pending motion to dismiss must be

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extended. Unless the case is previously dismissed, the plaintiff

shall file a response to the defendant’s motion to dismiss on or

before October 5, 2005.

Copies of this order shall be sent to Judge Sara E. De Jesus

Kellogg, United States Bankruptcy Court, District of Puerto Rico,

referring to In re Alfredo Antonio Castellanos Bayouth, 04-22496-

SEK7, filed Nov. 8, 2004, and to John A. Zerbe, Trustee, 165 Ave.

De Diego Urb San Francisco, San Juan, PR 00927.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

September 19, 2005

cc: Alfred Castellanos-Bayouth, Esquire

Angel E. Rotger-Sabat, Esquire

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