MEMORANDUM AND ORDER OF COURT
AND NOW, this 18th day of November, 2008, upon consideration of (a) the brief filed by Delrey Windows, Inc. (hereafter “Delrey”), the instant plaintiff, regarding whether it possesses standing to prosecute Count 3 of its complaint in the instant adversаry proceeding (a fraudulent conveyance cause of action), (b) the response to such brief by Rowan Corporate Tower, LLP (hereafter “Rowan”), and (c) Delrey’s response to Rowan’s mоtion for reconsideration of this Court’s August 13, 2008 Order to compel discovery (hereafter “Rowan’s Reconsideration Motion”), as well as Delrey’s objection to the entry by this Court of its August 21, 2008 Order that (i) vacated this Court’s August 13, 2008 Order and quashed a subpoena directed to John C. Fogle, CPA, and (ii) thereby granted to Rowan the relief that it sought in Rowan’s Reconsideration Motion (hereafter collectively referred to as “Del-rey’s Objectiоn to the Court’s August 21, 2008 Order”);
and after notice and a hearing on Del-rey’s Objection to the Court’s August 21, 2008 Order, which hearing was held on October 2, 2008, and at which time the Court directed Delrey to file the aforesaid brief on the afоrementioned issue of standing,
it is hereby ORDERED, ADJUDGED, AND DECREED that:
(a) Delrey LACKS STANDING to prosecute the fraudulent conveyance cause of action that is pled in Count 3 of its adversary complaint;
(b) this Court consequently LACKS SUBJECT MATTER JURISDICTION to adjudicate such fraudulent conveyance cause of action, which means that the Court, pursuant to Fed.R.Civ.P. 12(h)(3), 1 shall consequently dismiss such fraudulent conveyance cause of action;
(c) Delrey’s aforesaid fraudulent cоnveyance cause of action, that is Del-rey’s Count 3, is thus DISMISSED WITHOUT PREJUDICE;
(d) because the Court’s August 13, 2008 Order and the subpoena directed to John C. Fogle, CPA both deal with discovery that pertains exclusively to Delrey’s fraudulent conveyance cause of action (i.e., Delrey’s Count 3), 2 and since such cause of action, as *257 just ordered, is dismissed, the Court’s August 13, 2008 Order shall REMAIN VACATED and the subpoena directed to Mr. Fogle shall REMAIN QUASHED; and
(e) Delrey’s Objection to the Court’s August 21, 2008 Order is consequently OVERRULED, which means that the Court’s August 21, 2008 Order will remain undisturbed.
The rationale for the Court’s decision that Delrey lacks standing to prosecute the fraudulent conveyance cause of action that is pled in its Count 3 is briefly set forth below.
I.
As Delrey cоncedes, the Chapter 7 Trustee who was appointed and who has served in the instant bankruptcy case (hereafter “the Chapter 7 Trustee”) is vested with sole and exclusive authority to prosecute,
inter alia,
frаudulent conveyance actions regarding the Debtor. Del-rey contends, however, that (a) the Chapter 7 Trustee has failed to prosecute the fraudulent conveyance action that Delrey now pursues in its Count 3, (b) the Chapter 7 Trustee has thus thereby constructively abandoned such action, and (c) Del-rey thus thereby has become possessed of standing to prosecute such action. In support of its сonstructive abandonment position, Delrey relies upon the decision in
In re Sheetex, Inc.,
Furthermore, the Court holds, as a matter of law and rather unremarkably, that the legal process by which abandonment of an asset — such аs, for instance, a cause of action — is effectuated in bankruptcy necessarily requires, in the instance when a bankruptcy trustee is present, that such bankruptcy trustee have first been aware of thе existence of the asset in question before the same can be abandoned. Indeed, the Court is hard-pressed to imagine how a bankruptcy trustee, with *258 out such awareness of such existence of such asset, could either voluntarily abandon such asset pursuant to 11 U.S.C. § 554(a), or be ordered to involuntarily abandon such asset pursuant to 11 U.S.C. § 554(b). The Court also holds, as a matter of law, that, even if constructive abandonment of an asset by a bankruptcy trustee were possible, such abandonment could not possibly occur until such trustee at least first became aware of the existence of such asset; to suggest otherwisе, the Court concludes, is simply senseless. By virtue of Delrey’s recitation of the relevant facts in the instant bankruptcy case, the Court must conclude that the Chapter 7 Trustee was not, and has never been made, aware of the fraudulent conveyance action that Delrey now pursues in its Count 3. The Court holds that, without such awareness of such fraudulent conveyance action, the Chapter 7 Trustee could not hаve abandoned such action.
The Court also points out that abandonment of the fraudulent conveyance action that Delrey now pursues in its Count 3 is neither something that the Court would permit, nor a vehiclе by which Delrey could ever pursue such action in this Court. The Court so rules because, if such abandonment were to be permitted, then such action would no longer constitute property of the instant Debtor’s bаnkruptcy estate, which result would (a) necessarily divest this Court of subject matter jurisdiction over such action,
see Halper v. Halper,
What Delrey should have done in the first place with respect to the fraudulent conveyance action in question — and what it will need to do henceforth — is to
(a) first, рresent all of the information relevant to such action to the Chapter 7 Trustee for such trustee’s consideration,
(b) second, after an appropriate period to allow for the Chaptеr 7 Trustee’s consideration, make demand upon the Chapter 7 Trustee to prosecute such action (if such prosecution has not already commenced), and
(c) third, after a refusal by the Chaptеr 7 Trustee to so prosecute, petition this Court for a hearing and the entry of an order authorizing Delrey, instead of such trustee, to prosecute such action on behalf of the instant Debtor’s bankruptcy estate — only after such procedure has been followed, and subsequent to such authorization by this Court, may Del-rey ever become legally possessed of the requisite standing to prosecute such action.
See
7
Collier on Bankruptcy,
¶ 1109.05 at 1109-46 to 1109-52 (Bender 2008) (discussing the Third Circuit’s decision in
In re Cybergenics Corp.,
As for the Court’s decision to immediately dismiss such fraudulent conveyance action, that is Delrey’s Count 3, rather than continue it generally until either the Chapter 7 Trustee is substituted as the proper pаrty plaintiff or Delrey ultimately obtains standing to bring such action, the Court must so dismiss because (a) Delrey, as set forth above, presently lacks the requisite standing to prosecute such action, (b) this Court, as set forth abоve, consequently presently lacks subject matter jurisdiction over such action, and (c) Fed.R.Civ.P. 12(h)(3) mandates that a court dismiss an action whenever it determines that it lacks subject matter jurisdiction with respect thеreto, see Fed.R.Civ.P. 12(h)(3), 28 U.S.C.A. (West 2008) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”). Because the Court must immediately dismiss such fraudulent conveyance action, but since there remains a possibility that such action may properly be brought in the future, the Court’s dismissal of such action will be without prejudice so that it may be, and in the event that it is, so properly brought in the future.
II.
For all of the reasons stated above, the Court (a) DISMISSES WITHOUT PREJUDICE the fraudulent conveyance cause of action that is pled in Delrey’s Count 3, and (b) OVERRULES Delrey’s Objection to the Court’s August 21, 2008 Order.
Notes
. Fed.R.Civ.P. 12(h)(3) is made applicable to the instant matter by Fed. R. Bankr.P. 7012(b).
. The Court will presume, indeed must conclude, that its August 13, 2008 Order and the subрoena directed to John C. Fogle, CPA both deal with discovery that pertains exclusively to Delrey’s fraudulent conveyance cause of action (i.e., Delrey’s Count 3) because the first two counts in Delrey’s аdversary complaint (a) seek the denial of the discharge of the instant Debtor, who, as a corporation, is not legally eligible to obtain a Chapter 7 dis *257 charge, see 11 U.S.C.A. § 727(a)(1), and (b) are thus utterly devoid of merit.
. The Court understands that the Chapter 7 Trustee has retired since the commencement of the instant adversary proceeding. If that is correct, then Delrey will need to contact the U.S. Trustee’s Office, present its information and the instant Memorandum and Order of Court to that office, and request that a new panel bankruptcy trustee be appointed so as to consider whether such trustee, will, in the first instance, prosecute the fraudulent conveyance action that Delrey has sought to pursue in its Count 3.