SALTER, J.

Fernando Montes and his wife appeal a final summary judgment against them in favor of Mastec North America, Inc. The circuit court lawsuit arose from personal injuries sustained by Mr. Montes, a condominium security guard, in 2008 when a ladder owned or used by Mastec allegedly fell on him, with resulting medical expenses exceeding $100,000. The final summary judgment was based on Mr. Montes' failure to disclose his potential (then unfiled) lawsuit against Mastec in the "contingent and unliquidated claims" section of his Chapter 13 personal bankruptcy in 2010. We reverse.

Chronology

The pertinent dates and events are:

This timely appeal followed.1

Analysis

Mastec argues for affirmance on two separate grounds. First, Mastec argues that Mr. Montes and his wife lack standing to bring the circuit court lawsuit, because once they commenced the bankruptcy, all of their assets, including the lawsuit, became the property of the bankruptcy trustee. Second, Mastec maintains that the summary judgment was properly granted based upon judicial estoppel.

Regarding standing, Mastec's argument is based on an erroneous proposition. In a Chapter 7 liquidation proceeding, a bankruptcy trustee retains control over a state court lawsuit or cause of action of the debtor. In a Chapter 13 bankruptcy case, however, "the debtor retains possession of and may use all the property of his estate, including his prepetition causes of action." Aery v. Wallace Lincoln-Mercury, LLC, 118 So.3d 904, 911 (Fla. 4th DCA 2013) (quoting Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209 n. 2 (3d Cir.1991)). Mr. Montes and his wife had and have standing to proceed with their lawsuit.

Regarding judicial estoppel, Mastec relies principally on Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001). In that case, Richard Blumberg alleged that his insurance agent had been negligent in procuring appropriate coverage under his residential insurance policy. In a prior lawsuit directly against the insurer, however, Blumberg had (a) alleged that such coverage existed, (b) recovered a jury verdict in his favor awarding damages for his alleged losses, and (c) dismissed that lawsuit with prejudice before the entry of judgment because of Blumberg's exposure to attorney's fee claims by the insurer under the offer of judgment rules.

The Blumberg case is readily distinguishable. Mr. Montes and his wife never obtained a verdict after trial inconsistent with a later lawsuit. At the time they filed their bankruptcy petition, it was unclear that a lawsuit would be filed at all. They had a bankruptcy lawyer for their bankruptcy petition, and a different lawyer evaluating their tort claim. The phrase "contingent and unliquidated claim" is a legal term that may be confusing to a lay person, particularly when it is as yet undetermined whether a particular pre-petition injury is actionable and ripe for filing.

In the present case, Mr. Montes and his wife promptly amended their bankruptcy schedules and their proposed Chapter 13 plan after Mastec raised the omission in their circuit court lawsuit. Because their joint Chapter 13 case remained pending at that time, no creditor was defrauded.

Mastec's reliance upon Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), is equally unavailing. In that case, a Chapter 13 debtor failed to report his potential (as yet unfiled) claim for employment discrimination. His lawsuit was filed six months later. In Burnes, however, the debtor never amended his Chapter 13 schedule to include the lawsuit. The debtor converted his Chapter 13 bankruptcy to a Chapter 7 liquidation and obtained a complete discharge of his debts, despite having never disclosed the existence of his lawsuit. In the present case, Mr. Montes and his wife amended their schedules and plan in a still-pending case, and they did not obtain a discharge from indebtedness under Chapter 7.2

Finally, Mastec's reliance on Grau v. Provident Life & Accident Insurance Co., 899 So.2d 396 (Fla. 4th DCA 2005), is misplaced. In that case, the district court of appeal actually reversed a trial court's summary judgment based on judicial estoppel. Dr. Gerard Grau filed for Chapter 11 bankruptcy following the entry of an adverse medical malpractice judgment. In his bankruptcy schedules, he listed two personal disability insurance policies valued at "$0.00" "because he was unsure whether he was `disabled' when he filed bankruptcy." Id. at 397. Two years later, Dr. Grau converted his Chapter 11 proceeding to a Chapter 7 liquidation. During a creditors' meeting, Dr. Grau testified that he had recently become disabled and that he was working on filing a claim for disability benefits. A year later, he was permitted to amend his bankruptcy schedules to claim a state exemption3 for the disability policies. Dr. Grau then filed lawsuits against his disability insurers seeking benefits under the policies. His Chapter 7 trustee testified that Dr. Grau had told him that "`he was, in fact, not disabled.'" Id. at 398. The circuit court granted the insurers' motion for summary judgment on the basis of judicial estoppel.

The Fourth District, applying Blumberg, reversed the summary judgment. "To find that a party to be estopped has successfully maintained a claim or position requires that the first court adopt the claim or position, `either as a preliminary matter or as part of a final disposition.'" Grau, 899 So.2d at 401 (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 n. 5 (6th Cir.1982)). The Fourth District also found judicial estoppel inapplicable because the insurers were not parties to the bankruptcy action. In the present case, the bankruptcy court did not rely on the presence or absence of a recovery in the personal injury suit, obviously there has been no such recovery to date, any such recovery will be part of the amended plan, and Mastec was not a creditor or otherwise involved in the bankruptcy case of Mr. Montes and his wife. Here, as in Grau, we "decline the [defendant's] invitation to apply judicial estoppel punitively against [the debtor], bestowing a windfall upon [the defendant]." Grau, 899 So.2d at 402.

For these reasons, the final summary judgment is reversed and the case is remanded to the circuit court for further proceedings.