Daniel William Cook and Yolanda T. Cook

1 References in this memorandum opinion to “the Court” and
“this Court” are to the Bankruptcy Court. 	The District Court is
will always be identified specifically as such.
2From the various motions that Mr. Cook (sometimes “Debtor”
herein) later filed in the District Court case it is obvious that
(continued...)
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re DANIEL WILLIAM COOK
and YOLANDA TERESA COOK,
Debtors. 	No. 7-04-17704-SA
MEMORANDUM OPINION
This Memorandum Opinion is entered in connection with
various motions currently pending in this bankruptcy case.
Debtors filed this case as a voluntary Chapter 11 proceeding on
October 21, 2004. 	On December 7, 2004, Debtors filed Adversary
Proceeding 04-1240-S, Cook, et al. v. Garrett Capital, et al.
Wells Fargo Bank, NA (one of the defendants) promptly filed a
Motion to Abstain (Adv doc 15). 	After briefings and hearings,
the Court 1 entered Proposed Findings of Fact and Conclusions of
Law on October 19, 2005, recommending to the United States
District Court that it enter an order granting the motion, i.e.,
ordering abstention. 	The matter was then put on the United
States District Court’s docket as No. MC05-0042-JB. 	Adv doc 114.
On March 19, 2009, the Hon. James Browning, District Judge,
entered an Order granting the motion and ordering this Court to
abstain from exercising jurisdiction over the adversary
proceeding. 2 	The March 19, 2009 Order disposed of the adversary
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 1 of 22

2(...continued)
Mr. Cook did not understand what this order meant. 	It is clear
that Mr. Cook believed that the order divested the Bankruptcy
Court’s jurisdiction over the adversary proceeding and vested it
exclusively in the United States District Court and divested the
state court’s jurisdiction. 	This is incorrect. 	When the federal
court abstains, it releases all federal jurisdiction, leaving
jurisdiction to (re)vest exclusively in the state court. 	See,
e.g., Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764,
778-79 (10 th Cir. BAP 1997) (Containing long discussion of the
meaning of “can be timely adjudicated in a State forum of
appropriate jurisdiction”, which is an element of abstention. 	If
the federal court were retaining jurisdiction, this element would
be an absurdity.)
-2-
proceeding, in effect dismissing it; no further action on the
matter was required and, as with any dismissal, the District
Court case should have been closed but was not.
For unknown reasons, the March 19, 2009 District Court Order
was not transmitted to this Court until March 30, 2010. 	Adv doc
123. 	Perhaps as a consequence, between July 17, 2009 and October
29, 2009, before this Court was notified of the District Court’s
Order, the parties filed more motions, responses, and replies in
the still open District Court case. 	None of those filings had
anything to do with the subject matter of the closed District
Court case. 	Rather, they were motions dealing with procedural
matters that should have been brought up in the underlying
bankruptcy case still pending in this Court, e.g., claims for
stay violations and motions for sanctions. 	The parties also
filed “notices” of the District Court filings in the Bankruptcy
Court. 	No party brought to the attention of the Bankruptcy Court
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 2 of 22

3 Referring the six motions back to this Court and having
decided not to withdraw the reference, the District Court
“consider[ed] this miscellaneous filing in the District Court
closed.” 	Adv doc 116, at 3.
4 The Court’s law clerk has revised several Bankruptcy Court
CM docket entries to change each Bankruptcy Court “notice” of a
District Court filing to identify and describe the specific
filing at issue.
-3-
any of the District Court filings (other than filing the
“notices”), and no party asked for a hearing in Bankruptcy Court
on any of the issues presented. 	On December 1, 2009, the
District Court conducted a hearing on the motions. 	On December
3, 2009, the District Court entered an Order stating that the
automatic reference of bankruptcy cases to the bankruptcy court
was still in effect with respect to the underlying bankruptcy
case, and referred the motions back to the bankruptcy court. 	Adv
doc 116. 3 	This Court conducted a status conference on January
19, 2010 and took all the remaining issues under advisement. 	It
now decides those matters. 4
All of the filings in the District Court can be grouped into
two procedural issues and four substantive matters. 	The Court
will address the procedural issues first, then turn to the
substantive matters.
First, Wells Fargo filed a response to Debtor’s Amended
“Transfer of Interest ...” in the District Court on August 10,
2009. 	Doc 849. 	Debtor responded with a “Motion to Dismiss
Alternatively Strike ...” 	Doc 851. 	In this motion, Debtor asks
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 3 of 22

5 The New Mexico Bankruptcy Local Rules were amended
effective August 2, 2010, after the filings in this matter. 	The
earlier (1996) version of this rule was substantially the same:
RULE 1001-1 SCOPE OF RULES.
These local rules govern procedure in bankruptcy cases
and proceedings, whether heard by a bankruptcy judge or
district judge.
-4-
the Court to 1) strike Wells Fargo’s response, 2) enter an order
voiding the state court judgment (discussed below), 3) enter an
order imposing fees and costs for violations of the automatic
stay and awarding sanctions and special damages. 	The grounds for
Debtor’s motion are: 1) Wells Fargo’s response is seven pages too
long per D.N.M. LR-Civ 7.5, 2) Wells Fargo’s response’s exhibits
are sixty-six pages too long per D.N.M. LR-Civ 10.5, and 3) Wells
Fargo’s response was untimely per D.N.M. LR-Civ 7.4(a). 	Wells
Fargo objected to this motion. 	Doc 857. 	Debtor replied. 	Doc
859.
The Motion to Dismiss Alternatively Strike is meritless and
must be denied outright. 	In New Mexico, the New Mexico Local
Bankruptcy Rules apply to all stages of bankruptcy matters except
appeals. 	The Federal District Court rules do not apply to
bankruptcy matters. 	See NM LBR 1001-1 (2010) 5, which provides in
relevant part as follows:
RULE 1001-1 SCOPE, APPLICATION, WAIVER OF RULES, AND
CONSTRUCTION
(a) Citation. These rules shall be cited as “NM LBR-.”
(b) Scope. Pursuant to the Administrative Order of the
United States District Court, Misc. No. 84-0324, dated
March 19, 1992, and D.N.M.LR-Civ. 1.6, these rules
govern procedure in all bankruptcy cases and
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 4 of 22

-5-
proceedings in the United States District and
Bankruptcy Courts of the District of New Mexico, except
appeals.
(c) Application: These rules govern all cases and
adversary proceedings pending or filed on or after the
effective date, unless the court orders otherwise.
...
The New Mexico Bankruptcy Local Rules do not contain page
limitations. 	Furthermore, Wells Fargo response regarding
timeliness of its response is correct. 	However, even if Wells
had filed a response four days late (which it did not), the Court
cannot conceive how this prejudiced Debtor. 	This is particularly
true in light of the fact that the correct court was not even in
the loop until months later. 	The Court will enter an Order
denying Debtor’s Motion to Dismiss Alternatively Strike.
The second procedural matter raised by the papers is
Garrett’s Motion to File a Surreply. 	Doc 862. 	As discussed in
detail below, the Motion for Sanctions for Violation of the
Automatic Stay addressed to the Garrett parties (doc 846) is so
devoid of any merits that the Court does not need the benefit of
a surreply. 	Therefore, the Court will enter an Order denying the
motion to file a surreply as moot.
Turning now to the substantive issues, the Court breaks down
the papers into four matters as follows:
MATTER 1.
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 5 of 22

-6-
[Transfer of interest substitution, entry of appearance and
Motion for Sanctions and Damages against Wells Fargo Bank, N.A.
for Willful Violations of the Automatic Stay] (doc 845)
[Amended by doc 847, so Court will not consider doc 845.]
Debtor’s Amended “Transfer of interest substitution, entry of
appearance and Motion for Sanctions and Damages against Wells
Fargo Bank, N.A. for Willful Violations of the Automatic Stay”
and “Notice” (doc 847)
[Wells Fargo filed a response which Debtor moved
to strike. 	Wells Fargo filed an amended response
and the Court will not consider the original Wells
Fargo response.]
Wells Fargo’s Amended Response in Opposition to
Debtor’s Amended “Transfer of Interest ... “ (doc
853)
Debtor’s Reply to “Wells Fargo’s Amended Response
in Opposition to Debtor’s Amended ... “ (doc 855)
MATTER 2.
Transfer of Interest Substitution and Motion for Sanctions and
Damages against Scott Garrett, Pamela Garrett and the Garrett
Trust for Willful Violations of the Automatic Stay (doc 846)
Response to Debtor’s Motion for Sanctions (doc
852)
Garrett’s Notice of Errata (attaching two exhibits
omitted from Response) (filed only in District
Court as doc 25)
Debtor’s Reply to Scott Garrett and Garrett
Capital’s “Response to Debtor’s Motion for
Sanctions”) (doc 854)
Re-submittal of Doc [854] (as corrected): Debtor’s
Reply to Scott Garrett and Garrett Capital’s
“Response to ...” (doc 856)
MATTER 3.
Wells Fargo’s Verified Application for Preliminary and
Permanent Injunction (doc 864)
Memorandum in Support of Wells Fargo’s Verified
Application for Preliminary and Permanent
Injunction (doc 865)
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 6 of 22

-7-
Debtor’s Opposition Response to Wells Fargo’s
Verified Application for Preliminary and Permanent
Injunction and memorandum in Support (doc 867)
Wells Fargo Bank’s Reply in Support of its
Application for Injunction (doc 869)
MATTER 4.
Debtor’s Motion for Additional Sanctions, This Time Under Rule
11 (doc 866)
Response in Opposition to Debtor’s Motion for
Additional Sanctions, This Time Under Rule 11 (doc
868)
Debtor’s Reply to “Response in Opposition to
Debtor’s Motion for Additional Sanctions ... “
(doc 871)
DISCUSSION
1. 	Debtor Lacks Standing to Bring the Stay Motions.
Debtor’s sanctions motions against Wells Fargo (doc 847) and
the Garretts (doc 846) are both premised on his assumption that
Trustee Montoya’s “Notice of Abandonment”, doc 844, granted
standing to Debtor to pursue stay violations allegedly
perpetrated against the estate. 	A brief summary of the some of
the procedural history of this case is necessary.
On June 2, 2008, the chapter 7 trustee filed a Report of No
Distribution (“NDR”), see docket entry immediately following doc
755, then filed a Withdrawal of [the NDR] Document. 	Doc 767
(July 30, 2008). 	Hydroscope Group, Inc.; Hydroscope Inc., USA;
Hydroscope Canada Inc.; and CBM Group, Inc. filed on objection to
the withdrawal and sought a declaration that the property had
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 7 of 22

6 No underlying document accompanies such a docket entry.
The language of the docket entry is as follows:
Chapter 7 Trustee's Report of No Distribution: I,
Philip J. Montoya, having been appointed trustee of the
estate of the above-named debtor(s), report that I have
neither received any property nor paid any money on
account of this estate; that I have made a diligent
inquiry into the financial affairs of the debtor(s) and
the location of the property belonging to the estate;
and that there is no property available for
(continued...)
-8-
been effectively abandoned. 	This Court entered a Memorandum
Opinion on Abandonment, doc 838 (April 15, 2009), overruling the
objection and holding that unless Section 554 is strictly
complied with, there is no effective abandonment.
On September 4, 2008, Debtor moved to compel abandonment of
certain assets, doc 786, and noticed that motion out. 	Doc 792.
The notice recited that any objections would come before the
Court for a preliminary hearing on October 2, 2008. 	Id.
Objections to the motion to compel abandonment were filed by
Wells Fargo Bank (doc 812), the Garretts (doc 814) and the
trustee (doc 816). 	However, there is no mention of the motion in
the minutes of the October 2 hearing (doc 818), and in any event
it appears that no one took any further action on the motion.
Then, on July 1, 2009, the Trustee filed the Notice of
Abandonment. 	Doc 844. 	Immediately after that entry, on the same
date, is a CM docket text entry containing the standard
abandonment language issued by trustees after a §341 meeting when
the trustee has determined the case to be a no-asset case. 6
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 8 of 22

6(...continued)
distribution from the estate over and above that
exempted by law. 	Pursuant to Fed R Bank P 5009, I
hereby certify that the estate of the above-named
debtor(s) has been fully administered. 	I request that
I be discharged from any further duties as trustee.
Key information about this case as reported in
schedules filed by the debtor(s) or otherwise found in
the case record: This case was pending for 16 months.
Assets Abandoned: $ 487085961.00, Assets Exempt: Not
Available, Claims Scheduled: $ 9989980.00, Claims
Asserted: Not Applicable, Claims scheduled to be
discharged without payment: $ 9989980.00. 	Filed by
Trustee Philip J. Montoya. (Montoya, Philip) (Entered:
07/01/2009 at 10:18:21)
7 F.R.B.P. provides as follows:
Abandonment or Disposition of Property
(a) Notice of proposed abandonment or disposition;
objections; hearing
Unless otherwise directed by the court, the trustee or
debtor in possession shall give notice of a proposed
abandonment or disposition of property to the United
States trustee, all creditors, indenture trustees, and
committees elected pursuant to § 705 or appointed
pursuant to § 1102 of the Code. A party in interest may
file and serve an objection within 14 days of the
mailing of the notice, or within the time fixed by the
court. If a timely objection is made, the court shall
set a hearing on notice to the United States trustee
and to other entities as the court may direct.
(b) Motion by party in interest
A party in interest may file and serve a motion
(continued...)
-9-
There is no indication that the Trustee filed the notice in
response to Debtor’s motion to compel abandonment of assets (doc
786). 	And he did not send notice of the proposed abandonment to
anyone, nor did he fix a deadline for objections pursuant to
F.R.B.P. 6007. 7 	Thus, there are no orders abandoning property.
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 9 of 22

7(...continued)
requiring the trustee or debtor in possession to
abandon property of the estate.
8 This is in accord with the general common law of trusts
and trustees. 	See Bogert, Bogert and Hess, The Law of Trusts and
Trustees § 954:
Causes of action which arise out of ordinary acts
of trust administration or out of wrongdoing toward the
trust property are usually vested in the trustee alone.
The trustee has title and possession and the powers of
administration. 	He is in substance the “owner” of the
trust property, as far as third persons are concerned.
Thus if a stranger to the trust appropriates trust
funds to his own use, or trespasses upon trust realty
or assumes adverse possession of it, or negligently or
intentionally damages trust property, or breaks a
contract made with the trustee, a cause of action
arises in favor of the trustee and the running of the
Statute of Limitations is controlled by the status of
the trustee as to notice of the wrong and as to
disabilities. ...
(continued...)
-10-
And, the case has not yet closed. 	See Section 554(c) (“Unless
the court orders otherwise, any property scheduled under section
521(a)(1) of this title not otherwise administered at the time of
the closing of a case is abandoned to the debtor and administered
for purposes of section 350 of this title.”) 	Nothing has yet
been abandoned.
Even if the case had closed, Debtor would still have a
standing problem. 	Section 554(c) specifies that only “scheduled”
property is subject to the automatic abandonment provision. 	A
cause of action for a stay violation is not “scheduled” property.
Therefore, even at closing Debtor does not obtain this cause of
action 8
. 	See Section 554(d) (“Unless the court orders otherwise,
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 10 of 22

8(...continued)
Ordinarily the beneficiary has no cause of action
against such a wrongdoer, and the question of notice of
the wrong to him, or of his competency, is immaterial.
(Footnotes omitted.) 	See also Restatement (Second) of Trusts §
281 (1959):
(1) Where the trustee could maintain an action at law
or suit in equity or other proceeding against a third
person if the trustee held the trust property free of
trust, the beneficiary cannot maintain an action at law
against the third person, except as stated in
Subsection (2).
(2) If the beneficiary is in possession of the subject
matter of the trust, he can maintain such actions
against the third person as a person in possession is
entitled to maintain.
-11-
property of the estate that is not abandoned under this section
and that is not administered in the case remains property of the
estate.”) 	Under the clear language of Section 554, any causes of
action for violation of the automatic stay are estate property
and will remain so even when the case is closed. 	See Delrey
Windows, Inc. v. Mars Builders, Inc. (In re Mars Builders, Inc.),
397 B.R. 255, 257 (Bankr. W.D. Pa. 2008)(“[A] debtor in
possession ... and thus, a bankruptcy trustee as well, cannot
abandon a legal claim [for a fraudulent transfer] merely by
failing to prosecute it, whatever its reasons may be for not
doing so.”)(citing In re General Development Corp., 179 B.R. 335,
340 (S.D. Fla. 1995)). 	The Delrey Windows court also stated that
it would be “particularly unpalatable” if the proceeds of an
action that belonged to the estate did not redound to the entire
creditor body. 	Id. at 258. 	Similarly, Debtor is seeking
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 11 of 22

-12-
millions of dollars from Wells Fargo and the Garretts in damages
and punitive damages that properly would belong to the (other)
creditors, who have received nothing in this case.
Based on this alone, Debtor does not have cognizable actions
for sanctions for violations of the automatic stay. 	In fact, by
pursuing these motions for sanctions it is Mr. Cook that is
violating the stay by exercising control over assets of the
bankruptcy estate. 	Both stay motions, Matters 1 and 2, should be
denied for lack of standing.
2. 	This Court Has Already, Repeatedly, Denied the Stay Motions.
This Court entered numerous memorandum opinions and orders
terminating and annulling the automatic stay, and orders
confirming and clarifying the intent of those orders that all
parties were free to pursue anything against anyone in the state
court case, and validating all actions previously taken in the
state court case. 	E.g., Doc 642, Order Resulting from
Preliminary Hearing on Debtors’ Motion for Sanctions and Damages
for Willful Violation of the Automatic Stay ... , January 23,
2008 (Ruling that the actions complained of “do not violate the
automatic stay.”); doc 740, Order Granting Stay Relief (docs 679
and 712) ... , April 21, 2008 (Ordering that “[t]he automatic
stay is both annulled, with respect to any proceedings that have
taken place before the State District Court, and modified, with
respect to any property in which either the estate or the Debtors
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 12 of 22

-13-
claim an interest, such that any party is entitled to seek, or to
continue to seek, whatever state law or other remedies it wishes
with respect to the property, including but not limited to
adjudications of liability, lien rights and amounts owed.”) This
latter order did reserve the issue of whether there had been
previous stay violations, as the parties were in the midst of
briefing the issues. 	However, the Court later entered a
September 15, 2008 Memorandum Opinion finding no violations of
the automatic stay, and that the parties filing the three motions
involved had no standing to pursue stay violations. 	Doc 798.
(Memorandum Opinion on [three] Motions for Sanctions for
Violation of the Automatic Stay).
In preparing this Memorandum Opinion, the Court refreshed
its memory on Wells Fargo’s state court summary judgment motion,
which is the primary focus of the motions. 	This motion appears
as Exhibit 1 to Debtor’s Amended Transfer of Interest ... , doc
847. 	Footnote 1 on page 2 of Well Fargo’s summary judgment
motion states:
Because of the Bankruptcy Code’s automatic stay, Wells
Fargo does not seek relief against Cooks on their
guarantees or assets securing Hydroscope Group, Inc.’s
debt which Cooks claim to be assets of their bankruptcy
estate. 	In the event the stay is lifted, the summary
judgment motion will be expanded to include claims
against Cooks and assets of their bankruptcy estate.
The motion seeks judgment as follows:
A. 	Against Hydroscope Group, Inc.
B. 	Against Hydroscope Canada, Inc.
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 13 of 22

9 Sic; “F” and “G” should be “E” and “F”.
-14-
C. 	Against Hydroscope Inc., USA
D. 	Against CBM Group, Inc.
F. 9 	Dismissal of all claims in Garrett’s Third Amended
Complaint
G. 	Dismissal of all claims in the Complaint for Damages
filed by Daniel William Cook, Yolanda Cook, Hydroscope
Integrated Technologies, Inc. and Hydroscope Inc., USA.
“‘It is well-established that stays pursuant to § 362(a) are
limited to debtors and do not encompass non-bankrupt
co-defendants.’ 	Teachers Ins. & Annuity Ass'n v. Butler, et al.,
803 F.2d 61 (2d Cir. 1986) (declining to extend stay of action
against debtor partnership to its co-defendants, non-debtor
individual partners).” 	Gray v. Hirsch, 230 B.R. 239, 242 (Bankr.
S.D. N.Y. 1999). 	Therefore, the summary judgment motion does not
violate the automatic stay in requests A, B, C, D, and F because
they are directed at non-debtors. 	And, furthermore
Although the scope of the automatic stay is broad,
the clear language of section 362(a) indicates that it
stays only proceedings against a “debtor”-the term used
by the statute itself. [Assoc. of] St. Croix
[Condominium Owners v. St. Croix Hotel Corp.], 682 F.2d
[446,] 448 [(3d Cir.1982)]. 	“The statute does not
address actions brought by the debtor which would inure
to the benefit of the bankruptcy estate.” 	Id. 	See
also In re Berry Estates, 812 F.2d 67, 71 (2d Cir.),
cert. denied, 484 U.S. 819, 108 S.Ct. 77, 98 L.Ed.2d 40
(1987); Martin-Trigona [v. Champion Fed. Sav. & Loan
Assoc.], 892 F.2d [575,] 577 [(7th Cir.1989)].
Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204
(3 rd Cir. 1991). 	Therefore, request G of the summary judgment
motion does not violate the automatic stay because the request is
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 14 of 22

-15-
directed at a claim brought by the Debtors. 	See also Bryner v.
LeBaron (In re Bryner), 425 B.R. 601, 608 (10th Cir. BAP
2010)(Affirming bankruptcy court’s ruling that, as a matter of
law, defending one's rights in a state court action brought by a
debtor is not a violation of the automatic stay.) 	Therefore, the
Court again finds that there were no stay violations and the
motions, Matters 1 and 2, should be denied.
The Court also finds that Matters 1 and 2 should be denied
as attempts to reargue issues previously decided against the
Debtor. 	The prior orders of this Court annulled the automatic
stay, terminated the stay, and then later found that there had
been no stay violations before the termination. 	That covers all
possible situations. 	There were no violations of the stay.
These two Matters wasted the time of both the parties and the
Courts.
3. 	Debtor Is Barred by the Rooker/Feldman Doctrine and
Collateral Estoppel from Bringing These Stay Motions.
The state court’s Summary Judgment Order is attached as
Exhibit 8 to Debtor’s Amended Transfer of Interest ... , doc 847.
The title of the Order states only that it grants summary
judgment against the Corporations. 	It finds specifically:
As to the Cooks, who assert the right to submit
additional briefing, the Court finds:
1. 	Wells Fargo did not sue the Cooks.
2. 	Wells Fargo’s summary judgment motion did not seek
a recovery against the Cooks or the Cook bankruptcy
estate, or any assets owned by the Cooks or the Cook
bankruptcy estate, but rather limited its requested
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 15 of 22

-16-
relief to the entry of judgments against the Hydroscope
entities for the debt owed and the entry of foreclosure
relief against particular collateral owned by CBM
Group, Inc. or the Hydroscope companies. 	The Bank’s
summary judgment motion sought to dismiss the Cook’s
claims against the Bank, as to which the Bank (and not
the Cooks) would have defenses. 	The Cooks filed no
opposition whatsoever to the Bank’s motion seeking to
dismiss the Cooks’ claims. 	If, as Cooks contend, their
defenses to dismissal of their claims belonged to Cooks
and not to their bankruptcy trustee, the Cooks should
have opposed the motion, but did not. 	Their bankruptcy
trustee, who did own the Cooks’ claims, did not oppose
their dismissal.
(Emphasis in original.)
Under New Mexico law a final judgment is defined as:
“‘The general rule recognized by the courts of the
United States and by the courts of most, if not all, of
the states, is that no judgment or decree will be
regarded as final, within the meaning of the statutes
in reference to appeals, unless all the issues of law
and of fact necessary to be determined were determined,
and the case completely disposed of, so far as the
court had power to dispose of it.”’
Floyd v. Towndrow, 48 N.M. 444, 152 P.2d 391, 392 (1944)(quoting
Attorney General of Utah v. Pomeroy, 93 Utah 426, 73 P.2d 1277,
1287 (1937)). 	The summary judgment is a final order of the state
district court.
When a state court loser attempts to attack or relitigate
the state court decision in federal court, the Rooker-Feldman
doctrine applies. 	The Court of Appeals for the Tenth Circuit
discussed the Rooker-Feldman doctrine in Kiowa Indian Tribe of
Oklahoma v. Hoover, 150 F.3d 1163, 1169 (10 th Cir. 1998):
The threshold question is whether consideration of the
Tribe’s § 1983 action is barred by the Rooker-Feldman
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 16 of 22

-17-
doctrine. 	See Rooker v. Fidelity Trust Co., 263 U.S.
413, 414-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923);
District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
The Rooker-Feldman doctrine bars “a party losing in
state court ... from seeking what in substance would be
appellate review of the state judgment in a United
States district court, based on the losing party’s
claim that the state judgment itself violates the
loser’s federal rights.” 	Johnson v. De Grandy, 512
U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775
(1994). 	As a rule, federal review of state court
judgments can be obtained only in the United States
Supreme Court. 	Feldman, 460 U.S. at 476, 103 S.Ct.
1303 (citing 28 U.S.C. § 1257; Atlantic Coast Line R.R.
Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281,
296, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970)); see also
Rooker, 263 U.S. at 415-16, 44 S.Ct. 149. 	Generally, a
federal district court cannot review matters actually
decided by a state court, Rooker, 263 U.S. at 415, 44
S.Ct. 149, nor can it issue “any declaratory relief
that is ‘inextricably intertwined’ with the state court
judgment,” Facio v. Jones, 929 F.2d 541, 543 (10 th Cir.
1991)(quoting Feldman, 460 U.S. at 483-84 n. 16, 103
S.Ct. 1303 (extending doctrine to issues not actually
decided by the state court)).
The Rooker-Feldman doctrine applies in bankruptcy court. 	Fifth
Third Bank of Western Ohio v. Singleton (In re Singleton), 230
B.R. 533, 537-38 (6 th Cir. B.A.P. 1999)(Citing cases.)
Under the Rooker-Feldman doctrine, a federal court cannot
overturn state court factual findings. 	Hill v. Putvin (In re
Putvin), 332 B.R. 619, 624 (10th Cir. BAP 2005). 	Such attacks on
state court factual findings may only be raised on appeal in the
state court or to the United States Supreme Court. 	Id. (citing
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280,
292 (2005)). 	Rooker-Feldman also bars claims that a party was
denied procedural due process in the state court. 	Postma v.
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 17 of 22

-18-
First Federal Savings & Loan of Sioux City, 74 F.3d 160, 162 (8 th
Cir. 1996). 	When a state-court loser complains of injuries
caused by state court judgments and then asks the federal court
to review and reject those judgments all the federal court can do
is apply the state’s preclusion law. Putvin, 332 B.R. at 624-25
(citing Exxon 544 U.S. at 293:
Disposition of the federal action, once the state-court
adjudication is complete, would be governed by
preclusion law. 	The Full Faith and Credit Act, 28
U.S.C. § 1738, originally enacted in 1790, ch. 11, 1
Stat. 122, requires the federal court to give the same
preclusive effect to a state-court judgment as another
court of that State would give.
(further citation and internal punctuation omitted.)) 	Therefore,
the only thing this Court can do for Debtor is determine how New
Mexico courts would treat the state court’s judgment.
In New Mexico, collateral estoppel bars relitigation of
ultimate facts or issues actually and necessarily decided in
previous litigation. 	Rosette, Inc. v. United States, 142 N.M.
717, 729, 169 P.3d 704, 716, 2007-NMCA-136 at {39} (Ct.App. 2007)
(citing Reeves v. Wimberly, 107 N.M. 231, 233, 755 P.2d 75, 77
(Ct.App. 1988)). 	“[F]ederal and New Mexico law on claim
preclusion are similar.” 	Id. at 726, 169 P.3d at 713, 2007-NMCA-
136 at {31}.
The four elements of collateral estoppel are
(1) the issue previously decided is identical with the
one presented in the action in question, (2) the prior
action has been finally adjudicated on the merits, (3)
the party against whom the doctrine is invoked was a
party, or in privity with a party, to the prior
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 18 of 22

-19-
adjudication, and (4) the party against whom the
doctrine is raised had a full and fair opportunity to
litigate the issue in the prior action.
Id. at 717, 169 P.3d at 716, 2007-NMCA-136 at {39} (quoting Dodge
v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000)). 	The
Court finds that the four elements are established in this case.
First, one issue decided by the state court was foreclosure
of property interests. 	The state court necessarily examined the
evidence of liability of the co-defendant corporations, the
existence of liens against property of those corporations,
default, and the remedy of foreclosure. 	In doing so, it
specifically found that none of the property belonged to either
the Debtor or Debtor’s bankruptcy estate. 	It then entered
foreclosure judgments against the property of those corporate
defendants.
The other issue decided by the state court was that the
claims asserted by Debtor were invalid. 	It then dismissed
Debtor’s claims against other parties.
The issue in the motions before this Court is whether there
were violations of the automatic stay. 	For there to be a
violation of the automatic stay, there must be an action taken
against the Debtor, Debtor’s property, or the bankruptcy estate’s
property. 	That there were no actions taken against Debtor,
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 19 of 22

-20-
Debtor’s property or the estate’s property are the exact factual
findings made by the state court. 	The issues in both the state
court and this Court were the same.
Second, the state court summary judgment order was a final
adjudication on the merits. 	Third, Mr. Cook is a party in both
the state court case and this bankruptcy. 	Fourth, he had a full
and fair opportunity to litigate the issue in the state court
case. 	In fact, he was an active party before the bankruptcy.
After he filed his bankruptcy petition, he initiated the
adversary proceeding referred to above which basically duplicated
the state court case (hence the abstention), and he appeared and
participated in the state case after the federal courts
abstained.
Therefore, collateral estoppel applies to the motions for
sanctions for violations of the automatic stay. 	The state
court’s factual findings may not be upset. 	There was no stay
violation. 	Matters 1 and 2 must be denied.
4. 	Wells Fargo’s Application for Injunctive Relief must be
Denied.
The Federal Rules of Bankruptcy Procedure require an
adversary proceeding to award injunctive relief (unless provided
for in a confirmed plan.) 	See Fed.R.Bankr.P. 7001. 	Wells Fargo
did not file an adversary proceeding. 	Therefore, the application
will be denied without prejudice. 	If Wells Fargo wishes to
pursue this relief, it should refile the application with the
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 20 of 22

-21-
required filing fee. 	The Court observes, however, that this
Memorandum Opinion and the associated orders that will enter as a
result thereof will likely end the bankruptcy case.
5. 	Debtor’s Motion for Additional Sanctions, “This Time under
Rule 11" must be Denied.
A substantial part of this motion is yet another history of
every transaction between Debtor and Wells Fargo, and a rehash of
arguments made in previous motions. 	That portion of the motion
need not be addressed again. 	As new material, Debtor complains
that Wells Fargo filed a motion in state court to restrict his
access to making pro se filings in the state court and that the
effect of this filing is to threaten his rights to offer
testimony in this bankruptcy case. 	Doc 866, p. 4-5. 	Also, as
addressed above, Wells Fargo attempted to restrict Debtor’s
access to this Court for more frivolous filings. 	Wells Fargo was
entirely within its rights to do so. 	See, e.g., Tripati v.
Beaman, 878 F.2d 351, 352 (10 th Cir. 1989)(Per Curiam.) (“There is
strong precedent establishing the inherent power of federal
courts to regulate the activities of abusive litigants by
imposing carefully tailored restrictions under the appropriate
circumstances.”)(Listing cases.) 	“[I]njunctions are proper where
the litigant’s abusive and lengthy history is properly set
forth.” 	Id. at 353. 	(Listing cases.) 	It can hardly be a
violation of Rule 11 to ask for relief that one may be entitled
to, especially when accompanied by a logical argument, supported
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 21 of 22

-22-
by case law, and arguably grantable on its face simply from a
review of the relevant dockets. 	As Wells Fargo has repeatedly
pointed out in this case, if anyone disagrees with Debtor he
seeks sanctions, moves to strike, or claims the other party is
lying, cheating or stealing. 	The Court has come to the same
conclusion. 	The Motion for Sanctions under Rule 11 will be
denied.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	April 6, 2011
Copies to:
Daniel William Cook
920 Galeras Street NW
Albuquerque, NM 87120
Michelle K. Ostrye
PO Box 1945
Albuquerque, NM 87103
Jay D. Hertz
PO Box 1945
Albuquerque, NM 87103
Catherine F. Davis
PO Box 94750
Albuquerque, NM 87199-4750
Philip J. Montoya
Trustee
PO Box 159
Albuquerque, NM 87103
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Chris W Pierce
PO Box 30088
Albuquerque, NM 87190-0088
Julie J Vargas
PO Box 30088
Albuquerque, NM 87190-0088
William R Keleher
PO Box 2168
Albuquerque, NM 87103-2168
Case 04-17704-nlj7 Doc 884 Filed 04/06/11 Entered 04/06/11 10:23:40 Page 22 of 22