Daniel William Cook and Yolanda T. Cook

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
Daniel William Cook
and Yolanda T. Cook,
Debtors. 	No. 7 - 04-17704 - SA
MEMORANDUM OPINION ON DEBTOR DANIEL W. COOK’S
MOTION TO ALTER OR AMEND FINAL DECREE, OR ALTERNATIVELY
VACATE [FINAL DECREE], REINSTATE AUTOMATIC STAY, AND TO
RETAIN JURISDICTION FOR ALL MATTERS RELATED TO THE
BANKRUPTCY TO AFFORD CONSTITUTIONAL RIGHTS GRANTED BY
ART 1, SECTION 8, CLAUSE 4 OF THE U.S. CONSTITUTION
This matter is before the Court 1 on Debtor Daniel W. Cook’s
Motion to Alter or Amend Final Decree, or Alternatively Vacate
[Final Decree], Reinstate Automatic Stay, and to Retain
Jurisdiction for All Matters Related to the Bankruptcy to Afford
Constitutional Rights Granted by Art 1, Section 8, Clause 4 of
the U.S. Constitution (doc 941) as amended and supplemented by
doc 942 (together the “Motion”). 	Mr. Cook is self-represented.
For the reasons set forth below, the Motion will be denied. 2
1 Judge Starzynski retired on August 13, 2012 upon the
completion of his 14 year appointment as Bankruptcy Judge. 	On
August3, 2012 the U.S. Court of Appeals for the Tenth Circuit
entered an Order of Recall United States Bankruptcy Judge James
S. Starzynski for a period up to and including December 31, 2012.
Judge Starzynski was sworn in at the start of the business day on
August 14, 2012. 	Because this Chapter 7 was closed shortly
thereafter, on August 21, 2012, there was no need to assign the
case to a new judge. 	Judge Starzynski remains the presiding
judge in this case.
2 The Court has subject matter and personal jurisdiction
pursuant to 28 U.S.C. §§1334 and 157(b); this is a core matter
concerning administration of the estate, 28 U.S.C. §157(b)(2)(A);
and these are findings of fact and conclusions of law as may be
required by Rule 7052 F.R.B.P.
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The thrust of the Motion is that Mr. Cook claims that the
estate was not fully administered and should not have been closed
by the final decree. 	In his argument, he admits that section
350 3 would allow him to seek a reopening of the case after the
two appeals he has pending in the Tenth Circuit Court of Appeals
are (presumably) decided in his favor. 	However, he believes it
would be better to simply reopen the case now and leave it open,
allow the Chapter 7 Trustee to be discharged and to have his bond
cancelled, so that he and he alone can administer estate assets.
Mr. Cook insists that the estate has damage claims from stay
violations “and other causes” against Wells Fargo Bank and the
Garretts that have a “supportable value” of $5.5 billion. 	He
argues that granting this relief will eliminate the issues
pending before the Tenth Circuit, so that Court would no longer
need to address them. 	Alternatively, vacating the final decree
and re-imposing the automatic stay would reestablish the status
quo until the Tenth Circuit (presumably) rules in his favor and
refers the case back to this Court for further processing of the
“violations and causes.” 	He also wants the Court to retain
jurisdiction over all matters to afford him the (unspecified)
rights granted by Art. 1, section 8, clause 4 of the U.S.
Constitution. 	Finally, he argues that the closing of this case
3 All references to “section” are to title 11 of the United
States Code unless otherwise indicated.
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has denied him a fresh start because if the case is not open he
cannot pursue “possible lien avoidance” for his exempt property.
THE ARTICLE I ARGUMENT
The Constitution states that “Congress shall have the Power
to … establish … uniform Laws on the subject of Bankruptcies
throughout the United States.” U.S. CONST. art. I, § 8. 	Not
only is there no constitutional right to file bankruptcy,
but Congress need not even create a bankruptcy law. In fact,
there was (with three short unsuccessful exceptions) no
bankruptcy law for more than the first 100 years of our
history. 	See generally Charles Warren, Bankruptcy in United
States History 60-85 (1935); 1 James Wm. Moore et al.,
Collier on Bankruptcy ¶ 0.04 (14th ed. 1974). 	Thus, any
“right” to file bankruptcy is statutory, not constitutional.
Thomas G. Kelch and Michael K. Slattery, the Mythology of Waivers
of Bankruptcy Privileges, 31 Ind. L.Rev. 897, 900
(1998)(Footnotes incorporated into quoted text.) 	See also United
States v. Kras, 409 U.S. 434, 444-45 (1973)(The interest in
filing bankruptcy does not rise to the same constitutional level
as the ability to obtain a divorce; no fundamental interest is
gained or lost depending on the availability of a discharge in
bankruptcy.) 	Mr. Cook’s claims do not rise to the constitutional
level.
STANDARDS APPLICABLE TO THIS MOTION
Mr. Cook’s Motion is a Motion for Reconsideration of the
entry of the Final Decree (doc 940) in his eight year old no
asset chapter 7 case. 	The Tenth Circuit Court of Appeals has
stated when a reconsideration motion is proper:
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[A] motion to reconsider filed within ten 4 days after
entry of judgment is considered a Fed.R.Civ.P. 59(e)
motion. 	See Van Skiver [v. United States], 952 F.2d
[1241] at 1243 (10th Cir. 1991). 	Grounds warranting a
motion to reconsider include (1) an intervening change
in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or
prevent manifest injustice. 	See Brumark Corp. v.
Samson Resources Corp., 57 F.3d 941, 948 (10th Cir.
1995). 	Thus, a motion for reconsideration is
appropriate where the court has misapprehended the
facts, a party's position, or the controlling law. 	Cf.
Fed.R.App.P. 40(a)(2)(grounds for rehearing). 	It is
not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior
briefing. 	See Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991).
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10 th Cir.
2000). 	“Rule 59(e) cannot be used to expand a judgment to
encompass new issues which could have been raised prior to
issuance of the judgment.” 	Steele v. Young, 11 F.3d 1518, 1520
n.1 (10 th Cir. 1993)(Citation omitted.) 	Accord Fábrica de
Muebles J.J. Álvarez, Inc. v. Inversiones Mendoza, Inc., 682 F.3d
26, 31 (1 st Cir. 2012):
“The granting of a motion for reconsideration is ‘an
extraordinary remedy which should be used sparingly.’ ”
Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir.
2006) (quoting 11 Charles Alan Wright et al., Federal
Practice and Procedure § 2810.1 (2d ed. 1995)). 	The
moving party “must ‘either clearly establish a manifest
error of law or must present newly discovered
evidence.’” Marie v. Allied Home Mortg. Corp., 402 F.3d
1, 7 n.2 (1st Cir. 2005) (quoting Pomerleau v. W.
Springfield Pub. Sch., 362 F.3d 143, 146 n.2 (1st Cir.
4Fed.R.Bankr.P. 9023 adopts Fed.R.Civ.P. 59, which deals
with altering or amending judgments. 	Rule 59 formerly had a ten
day limit to request relief. 	This deadline was extended to 28
days in the 2009 amendments. 	See Advisory Committee Notes.
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2004)). 	A motion for reconsideration “does not provide
a vehicle for a party to undo its own procedural
failures, and it certainly does not allow a party to
introduce new evidence or advance arguments that could
and should have been presented to the district court
prior to the judgment.” 	Aybar v. Crispin–Reyes, 118
F.3d 10, 16 (1st Cir. 1997) (quoting Moro v. Shell Oil
Co., 91 F.3d 872, 876 (7th Cir. 1996)) (internal
quotation marks omitted).
A reconsideration motion must present new evidence in
support of the motion, or point out “manifest errors.” 	Illinois
Central Gulf Railroad Company v. Tabor Grain Co., 488 F.Supp.
110, 122 (N.D. Ill. 1980). 	Furthermore, a court will not find
“injustice” when a party could have easily avoided the outcome of
a case, but instead elected not to act until after a final order
has been entered. 	Ciralsky v. Central Intelligence Agency, 355
F.3d 661, 673 (D.C. Cir. 2004). 	As explained below, all Mr. Cook
had to do to avoid his current situation was to timely file a
simple objection to the Trustee’s Rule 5009 certification.
The Court will deny Mr. Cook’s Motion for Reconsideration.
As in Tabor Grain, Mr. Cook has not provided new evidence that
would have delayed closing the case nor has he pointed out any
manifest errors in the case closure. 	Rather, as developed more
fully below, Cook's Motion appears to be
no more than an expression of a view of the law
contrary to that set forth in [all of this Court's and
the Bankruptcy Appellate Panel’s opinions]. 	Whatever
may be the purpose of Rule 59(e) it should not be
supposed that it is intended to give an unhappy
litigant one additional chance to sway the judge.
Since the plaintiff has brought up nothing new except
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his displeasure this Court has no proper basis upon
which to alter or amend the order previously entered.
Similarly, the matters [Cook] raises by this motion
already have been fully litigated. This rehash of the
arguments previously presented affords no basis for a
revision of the Court's order.
Tabor Grain, 488 F.Supp. at 122.
CASE CLOSING
Bankruptcy Code section 350 governs case closing and
reopening. 	It states:
(a) After an estate is fully administered and the court
has discharged the trustee, the court shall close the
case.
(b) A case may be reopened in the court in which such
case was closed to administer assets, to accord relief
to the debtor, or for other cause.
Bankruptcy Rule 5009 provides procedures for case closing.
It states:
(a) Cases under chapters 7, 12, and 13.
If in a chapter 7, chapter 12, or chapter 13 case
the trustee has filed a final report and final account
and has certified that the estate has been fully
administered, and if within 30 days no objection has
been filed by the United States trustee or a party in
interest, there shall be a presumption that the estate
has been fully administered.
(Emphasis added.)
Rule 5009 sets up a “default rule” that authorizes the Clerk
of the Bankruptcy Court to close a case when a thirty-day period
has run after the trustee files a no-asset report and no parties
in interest file an objection that would bring the case back to
the attention of the judge. 	In re Schoenewerk, 304 B.R. 59, 63
(Bankr. E.D. N.Y. 2003). 	This rule was designed to fit in with
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the Bankruptcy Code enacted in 1978 which intended to relieve
bankruptcy judges from the burden of case administration and
tedious bureaucratic tasks such as entering closing orders in no
asset cases. 	Id. at 62.
Rule 5009 serves a bureaucratic function, has nothing to do
with the debtor and it grants a debtor no substantive rights or
interests. 	Id. at 64. 	“Moreover, under Section 350 and Rule
5009, the final act of administration could very well be a purely
ministerial act of which the debtor and other parties would
receive no notice.” 	Id. n.11. 	(Citing Korvettes v. Sanyo
Electric (In re Korvettes), 42 B.R. 217, 221 (Bankr. S.D. N.Y.
1984), reversed on other grounds, In re Korvettes, 67 B.R. 730
(S.D. N.Y. 1986)).
Furthermore, bankruptcy courts do not keep cases open on the
chance that a party might need the court’s jurisdiction in the
future. 	In re Johnson, 402 B.R. 851, 856 (Bankr. N.D. Ind. 2009)
(Citing Fed.R.Bankr.P. 3022 5 , Advisory Committee Note (1991)(“The
court should not keep the case open only because of the
possibility that the court’s jurisdiction may be invoked in the
future.”)) 	See also In re Union Home and Industrial, Inc., 375
B.R. 912, 916-17 (10 th Cir. BAP 2007)(Same). 	Nor are bankruptcy
cases kept open in the event a debtor might wish to amend his or
5Fed.R.Bankr.P. 3022 serves the same function in Chapter 11
cases as Fed.R.Bankr.P. 5009 does in other chapter cases.
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her schedules. 	Fed.R.Bankr.P. 1009(a) (“A voluntary petition,
list, schedule, or statement may be amended by the debtor as a
matter of course at any time before the case is closed.”)
Bankruptcy cases are not kept open to allow a debtor to file
a motion to avoid a lien. 	See In re Levy, 256 B.R. 563, 565
(Bankr. D. N.J. 2000)(Lien avoidance is recognized as a cause to
reopen a case under section 350(b) because it affords relief to a
debtor, and there are no time limits within which these motions
must be filed.) 	And, bankruptcy cases should be closed even if
there are pending motions or adversary proceedings that do not
relate to case administration. 	In re Sindram, 2009 WL 361470 at
*2 (Bankr. D. D.C. 2009)(contempt motion); Union Home, 375 B.R.
at 918 (adversary proceeding).
In sum, closing of a bankruptcy case is an automatic,
administrative act. 	Osberg v. Bartels (In re Bartels), 449 B.R.
355, 357 (Bankr. W.D. Wisc. 2011).
On July 1, 2009 Philip J. Montoya, the Chapter 7 Trustee,
filed a notice on the docket:
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
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
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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.
(Emphasis added.) 	Neither the United States Trustee or any party
in interest filed an objection within 30 days or, indeed, ever.
The final decree entered and the case closed on August 21, 2012.
After July 1, 2009 substantially nothing happened in the case.
Although over 100 more pleadings were filed, most were notices
that Mr. Cook or his various nemeses filed in a United States
District Court (“District Court”) case that had earlier adopted
this Court’s proposed findings of fact and conclusions of law and
abstained from hearing what was essentially an adversary
proceeding filed by Mr. Cook substantially identical to an action
(“State Court Action”) then and now pending in the Second
Judicial District Court, County of Bernalillo, State of New
Mexico (“State Court”). 6 	For some unknown reason, that District
6Based on representations of the parties, this Court
believes that the adversary was filed because the handwriting was
already on the wall in the state court case that the state court
judge was inclined to rule against Mr. Cook’s corporations.
Apparently Mr. Cook believed he could supercede the state and
perhaps find a more receptive judge in the bankruptcy court.
Later, when the United States District Court adopted this Court’s
proposed findings of fact and conclusions of law and
recommendation to abstain, Mr. Cook removed the six year (or
perhaps eight year) old state case to the United States District
(continued...)
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Court case remained open, which allowed Mr. Cook to refile what
were essentially motions for sanctions, already denied by this
Court, in an attempt to relitigate them in District Court. 	The
District Court eventually held a status conference to determine
what was going on and promptly referred all the pending motions
back to the Bankruptcy Court, which not surprisingly denied them
all for a second time. 	Then, after the filing of a motion to
recuse Judge Starzynski, which was later withdrawn, and several
motions to reconsider, which were denied, the case was closed.
In sum, absolutely nothing of any value transpired from the date
of the Report of No Distribution until the case was closed.
Therefore, in retrospect the case was fully administered in July
2009 and was later properly closed.
Mr. Cook’s arguments that there are now unadministered
assets and that he cannot now void “possible” liens to preserve
his fresh start lack merit. 	The easy issue to dispose of is his
fresh start argument. 	This case was open for eight years. 	If
Mr. Cook had a lien to avoid, he had ample time in which to do
it. 	If he failed to do it, the solution is easy. 	He can file a
motion to reopen the case to avoid a lien, pay the filing fee,
and avoid the lien. 	Closing of the case has nothing to do with
6(...continued)
Court on the eve of judgment. 	Suffice it to say the United
States District Judge was not pleased with the transparent reason
for the removal.
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his ability to reopen the case or to avoid a lien. 7 	But, this
Court has previously noted that Mr. Cook has no liens he can
avoid. 8 	Therefore, there is no reason to keep the case open to
allow Mr. Cook to file a meritless motion to avoid a non-existent
lien.
Mr. Cook’s argument of unadministered assets is not
credible. 	His imaginary assets have two components. 	One
component is his civil rights case against Judge Baca, Wells
Fargo, the Garretts and others pending in the Tenth Circuit Court
of Appeals. 	The claim, that those persons violated Mr. Cook’s
civil rights, arose post-petition and would not be estate
property. 	The other component of his claimed damages are for
stay violations and “other causes.” 	This Court ruled four times
that there had been no stay violations. 	Those orders were not
appealed. 	This Court then ruled that the stay was annulled.
7However, his eight year delay may give any lien creditor a
credible defense of laches. 	See, e.g., In re Bradley, 369 B.R.
147, 154 (Bankr. S.D. N.Y. 2007)(“A recognized limitation on the
granting of motions to reopen for lien avoidance is the doctrine
of laches.... Laches is an equitable defense which allows a court
to dismiss an action when there exists inexcusable delay in
instituting an action and prejudice to the non-moving party as a
result of the delay.”)(Citation omitted.)
8His schedules listed no nonpossessory, nonpurchase- money
security interests and no judicial liens. 	See 11 U.S.C. §
522(f). 	Any lien he gave was therefore voluntary and therefore
unavoidable. 	To the extent Mr. Cook claims that any lien was
unenforceable, this issue was or should have been necessarily
decided in the State Court Action. 	This Court would be bound by
that decision.
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That order was not appealed. 	The Court ruled that Mr. Cook and
his companies lacked standing to pursue stay violations against
estate property. 	That order was appealed and affirmed. 	It has
been appealed again to the Tenth Circuit and remains pending
there. 	Until that order is reversed, Mr. Cook has no standing.
Mr. Cook next argues that when the case closed, all of the
unpursued actions were abandoned to him. 	This Court has ruled
that unscheduled assets are not abandoned at the end of the case 9.
9This Court is not alone in so ruling. 	See Jeffrey v.
Desmond (In re Jeffrey), 70 F.3d 183, 186 (1 st Cir. 1995)(Trustee
had actual knowledge of debtor’s state court case. 	Court ruled:
Despite appellants' persistent claims, we agree with
the district court that the alleged discussion with the
Trustee, even if true, has no bearing on the outcome of
this appeal. 	The law is abundantly clear that the
burden is on the debtors to list the asset and/or amend
their schedules, and that in order for property to be
abandoned by operation of law pursuant to 11 U.S.C. §
554(c), the debtor must formally schedule the property
pursuant to 11 U.S.C. § 521(1) before the close of the
case. 	See, e.g., In re Rothwell, 159 B.R. 374, 377
(Bankr. D. Mass. 1993). 	Furthermore, by operation of
11 U.S.C. § 554(c) and (d), any asset not properly
scheduled remains property of the bankrupt estate, and
the debtor loses all rights to enforce it in his own
name. 	Vreugdenhill v. Navistar Int'l Transportation
Corp., 950 F.2d 524, 526 (8th Cir. 1991) (Chapter 7
debtor who failed to schedule potential claim cannot
prosecute the claim after emerging from bankruptcy).
(Footnote incorporated into quoted text.); 	Vreugdenhill v.
Navistar Int'l Transportation Corp., 950 F.2d 524, 526 (8th Cir.
1991)(Even if trustee knows of claim, if trustee does not pursue
it it is not abandoned at end of case unless it was scheduled.);
Ultimore, Inc. v. Bucula (In re Bucula), 464 B.R. 626, 634
(Bankr. S.D. N.Y. 2012)(If trustee does not pursue an avoidance
action the debtors may not pursue it after the case as abandoned
property and, unless all creditors were paid in full, the debtors
would not have any standing to pursue the action because they
(continued...)
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9(...continued)
could receive no benefit.); Vang Chanthavong v. Aurora Loan
Services, Inc. (In re Vang Chanthavong), 448 B.R. 789, 797-98
(E.D. Cal. 2011)(A debtor has no duty to schedule a cause of
action that accrues post-petition. 	Any claim that arises post-
petition that is not scheduled or administered by the trustee is
not abandoned upon closing under sections 554(a),(d).); In re
DeLash, 260 B.R. 4, 9 (Bankr. E.D. Cal. 2000):
[W]hile the case is open, the court may order the
abandonment of any property of the estate on the motion
of the trustee or any party in interest. 11 U.S.C. §
554(a) & (b). 	Subsections (a) and (b) use the broadest
possible term, “property of the estate,” when
describing the property the court may order the trustee
to abandon. 	This term, as defined by section 541,
includes not just a debtor's pre-petition and scheduled
assets, but also includes any property recovered by a
trustee pursuant to section 550, such as a preference
judgment.
This is in contrast to the language of section
554(c) which uses the more restrictive term, “any
property scheduled under section 521(1).” 	Thus, when
there is no court order pursuant to section 554(a) or
section 554(b), unadministered property is abandoned by
operation of law only if it was scheduled under section
521(1). 	If the debtor is not required by section
521(1) to schedule property, that property will not be
abandoned by operation of law.
The phraseology of section 554(c) means that there
are three categories of unadministered assets that are
not abandoned by operation of law. 	First, as permitted
in the preamble of section 554(c), the court may
expressly order that a scheduled asset will not be
abandoned when the case is closed. 	This permits a
trustee to close the case yet preserve for the estate
an asset with possible future value even though it has
no immediately realizable value. In re Hart, 76 B.R.
774 (Bankr. C.D. Cal. 1987).
Second, if the debtor has failed to schedule an
asset, the closing of the case will not result in its
abandonment. 	When an asset is omitted from the
schedules, it cannot be presumed that the trustee knew
of the asset and meant to abandon it by closing the
case. 	See e.g., Havelock v. Taxel (In re Pace), 159
B.R. 890, 898–99 (9th Cir. BAP 1993), reversed in part,
(continued...)
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Therefore, even if the Tenth Circuit were to find actions the
estate could have brought, it would not be Mr. Cook that would
pursue them. 	The Tenth Circuit Court of Appeals knows how to
remand a case, the Bankruptcy Court knows how to reopen a case,
and the United States Trustee knows how to appoint a trustee if
further administration is needed. 	It is neither Mr. Cook’s duty
or right to hold the case open on the unlikely chance that
lightning strikes the Byron White United States Courthouse in
Denver, Colorado, causing the Tenth Circuit Court of Appeals to
suddenly ignore well established principles of federal
constitutional law. 	In any event, Mr. Cook has no rights under
the Bankruptcy Code to collect any assets from anyone or pay any
funds to anyone.
In summary, as Movant, Mr. Cook had the burden of proof to
overcome the presumption that the estate was fully administered.
He has failed. 	All Mr. Cook has demonstrated is a desperate hope
that the Tenth Circuit will reverse this Court’s and the
9(...continued)
67 F.3d 187 (9th Cir. 1995); In re Arista Devices
Corp., 94 B.R. 26 (E.D. N.Y. 1988). 	Such an asset is
neither abandoned nor administered and remains property
of the estate despite the closing of the case. 11
U.S.C. § 554(d).
Third, if the property of the estate in question
is not of the type the debtor is required to schedule,
it is not abandoned by operation of law when the case
is closed.
(Emphasis added.)
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Bankruptcy Appellate Panel’s opinions that he lacked standing to
challenge actions as being in violation of the automatic stay as
to estate property.
CASE REOPENING
Bankruptcy Rule 5010 provides procedures for reopening
cases. 	It states:
A case may be reopened on motion of the debtor or
other party in interest pursuant to § 350(b) of the
Code. 	In a chapter 7, 12, or 13 case a trustee shall
not be appointed by the United States trustee unless
the court determines that a trustee is necessary to
protect the interests of creditors and the debtor or to
insure efficient administration of the case.
And, like the closing of a case, reopening is also an
automatic, administrative act. 	Bartels, 449 B.R. at 357.
Reopening is allowed only for reasons specified in the statute.
Id. See also Finch v. Coop (In re Finch), 378 B.R. 241, 246 (8 th
Cir. BAP 2007), aff’d, 285 Fed.Appx. 326 (8 th Cir. 2008):
Reopening is supposed to be little more than an
administrative function which is designed to resurrect
closed files from the court's archives so that some
type of request for relief can be received and acted
upon. 	This is usually done in order to take care of
some detail that was overlooked or left unfinished at
the time the case was closed. It was not designed as an
opportunity to create, and then enforce, rights that
did not exist at the time the case was originally
closed. 	In re Bartlett, 326 B.R. 436, 438 (Bankr. N.D.
Ind. 2005).
and First National Bank of Jeffersonville v. Goetz (In re Goetz),
2009 WL 1148580 (Bankr. S.D. Tex. 2009) at *2.
The reopening of a case is a ministerial act that
has no substantive effect in itself. 	Reopening of a
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case merely provides an opportunity to request
substantive relief. 	See Cusano v. Klein, 264 F.3d 936
(9th Cir. 2001). 	Reopening of a case is within the
sound discretion of the court, and a case will only be
reopened upon the demonstration of compelling
circumstances justifying the reopening. ... The burden
of proof to demonstrate circumstances that are
sufficiently compelling to justify reopening a case is
on the movant. 	See In re Winburn, 196 B.R. 894, 897
(Bankr. N.D. Fla. 1996); In re Nelson, 100 B.R. 905,
906 (Bankr. N.D. Ohio 1989).
If substantive relief can not be granted in the
reopened case, then there is no reason to grant a
motion to reopen. 	Further, if reopening a case would
be futile and a waste of judicial resources or would
serve no purpose, then cause to reopen does not exist.
See In re Carberry, 186 B.R. 401 (Bankr. E.D. Va.
1995); In re Kinion, 207 F.3d 751 (5th Cir. 2000).
and In re Wade, 991 F.2d 402, 409 (7 th Cir.), cert. denied, 510
U.S. 870 (1993)(If there are no assets requiring administration
and the debtor seeks no other relief, there is no cause to
reopen.)
On the other hand, the bankruptcy court has a duty to reopen
a case whenever there is prima facie proof that the case has not
been fully administered. 	Mullendore v. United States (In re
Mullendore), 741 F.2d 306, 308 (10 th Cir. 1984). 	The motion to
reopen, however, must be presented by one who has standing to
seek the reopening. 	Id. 	(“Application to have the estate
reopened may be made by an ‘interested party’ who would be
benefited [sic] by the reopening.”)
STANDING
Federal courts’ jurisdiction is strictly limited by Article
III, § 2, of the Constitution to “Cases” and “Controversies.”
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Steel Company v. Citizens for a Better Environment, 523 U.S. 83,
102 (1998). 	The Supreme Court describes cases and controversies
as those matters amenable to and resolvable by the judicial
process. 	Id. (citing Muskrat v. United States, 219 U.S. 346,
356-57 (1911)). 	“Standing to sue is part of the common
understanding of what it takes to make a justiciable case.” 	Id.
(citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Over the years, our cases have established that
the irreducible constitutional minimum of standing
contains three elements. 	First, the plaintiff must
have suffered an “injury in fact”-an invasion of a
legally protected interest which is (a) concrete and
particularized, see [Allen v. Wright, 468 U.S. 737
(1984)], at 756, 104 S.Ct., at 3327; Warth v. Seldin,
422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343
(1975); Sierra Club v. Morton, 405 U.S. 727, 740-741,
n. 16, 92 S.Ct. 1361, 1368-1369, n. 16, 31 L.Ed.2d 636
(1972); n1 and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical,’ ” Whitmore [v.
Arkansas, 495 U.S. 149 (1990)], at 155, 110 S.Ct., at
1723 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102,
103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). 	Second,
there must be a causal connection between the injury
and the conduct complained of-the injury has to be
“fairly ... trace[able] to the challenged action of the
defendant, and not ... th[e] result [of] the
independent action of some third party not before the
court.” 	Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926,
48 L.Ed.2d 450 (1976). 	Third, it must be “likely,” as
opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.” 	Id., at 38,
43, 96 S.Ct., at 1924, 1926.
n1 	By particularized, we mean that the injury must
affect the plaintiff in a personal and individual way.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
“This triad of injury in fact, causation, and redressability—
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constitutes the core of Article III’s case or controversy
requirement, and the party invoking federal jurisdiction bears
the burden of establishing its existence.” 	Steel Company, 523
U.S. at 103-04 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231
(1990)(Footnote omitted.) 	See also Valley Forge Christian
College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472 (1982):
[A]t an irreducible minimum, Art. III requires the
party who invokes the court's authority to “show that
he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of
the defendant,” Gladstone Realtors v. Village of
Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60
L.Ed.2d 66 (1979), and that the injury “fairly can be
traced to the challenged action” and “is likely to be
redressed by a favorable decision,” Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96
S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976). N9 	In
this manner does Art. III limit the federal judicial
power “to those disputes which confine federal courts
to a role consistent with a system of separated powers
and which are traditionally thought to be capable of
resolution through the judicial process.” 	Flast v.
Cohen, 392 U.S. [83 (1968)], at 97, 88 S.Ct., at 1951.
N9 See Watt v. Energy Action Educational Foundation,
454 U.S. 151, 161, 102 S.Ct. 205, 212, 70 L.Ed.2d 309
(1981); Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57
L.Ed.2d 595 (1978); Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 261, 262, 97 S.Ct.
555, 561, 50 L.Ed.2d 450 (1977); Warth v. Seldin, 422
U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343
(1975); Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208, 218, 220–221, 94 S.Ct. 2925, 2930,
2931–2932, 41 L.Ed.2d 706 (1974); United States v.
Richardson, 418 U.S. 166, 179–180, 94 S.Ct. 2940,
2947–2948, 41 L.Ed.2d 678 (1974); O'Shea v. Littleton,
414 U.S. 488, 493, 94 S.Ct. 669, 674, 38 L.Ed.2d 674
(1974); Linda R.S. v. Richard D., 410 U.S. 614,
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617–618, 93 S.Ct. 1146, 1148–1149, 35 L.Ed.2d 536
(1973).
The Valley Forge case emphasizes that the plaintiff must
have an “actual injury redressable by the court.” 	Id.
It tends to assure that the legal questions presented
to the court will be resolved, not in the rarified
atmosphere of a debating society, but in a concrete
factual context conducive to a realistic appreciation
of the consequences of judicial action. 	The “standing”
requirement serves other purposes. 	Because it assures
an actual factual setting in which the litigant asserts
a claim of injury in fact, a court may decide the case
with some confidence that its decision will not pave
the way for lawsuits which have some, but not all, of
the facts of the case actually decided by the court.
The Art. III aspect of standing also reflects a
due regard for the autonomy of those persons likely to
be most directly affected by a judicial order. 	The
federal courts have abjured appeals to their authority
which would convert the judicial process into “no more
than a vehicle for the vindication of the value
interests of concerned bystanders.” 	United States v.
SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2416, 37
L.Ed.2d 254 (1973). 	Were the federal courts merely
publicly funded forums for the ventilation of public
grievances or the refinement of jurisprudential
understanding, the concept of “standing” would be quite
unnecessary. 	But the “cases and controversies”
language of Art. III forecloses the conversion of
courts of the United States into judicial versions of
college debating forums. 	As we said in Sierra Club v.
Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31
L.Ed.2d 636 (1972):
The requirement that a party seeking review must
allege facts showing that he is himself adversely
affected ... does serve as at least a rough
attempt to put the decision as to whether review
will be sought in the hands of those who have a
direct stake in the outcome.
The exercise of judicial power, which can so
profoundly affect the lives, liberty, and property of
those to whom it extends, is therefore restricted to
litigants who can show “injury in fact” resulting from
the action which they seek to have the court
adjudicate.
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Id. at 472-73.
Congress can pass statutes that grant certain rights to
persons, e.g., 11 U.S.C. § 350(b) (empowering a bankruptcy court
to reopen cases in certain circumstances). 	But Congress may not
“abrogate the Art. III minima.” 	Gladstone Realtors v. Village of
Bellwood, 441 U.S. 91, 100 (1979). 	Even a plaintiff that relies
on a statute must always have suffered a distinct and palpable
injury to himself that is likely to be redressed if the requested
relief is granted. 	Id. (citations omitted.) 	See also Raines v.
Byrd, 521 U.S. 811, 820 n.3 (1997)(“It is settled that Congress
cannot erase Article III's standing requirements by statutorily
granting the right to sue to a plaintiff who would not otherwise
have standing.”)(Citation omitted.); Warth v. Seldin, 422 U.S.
490, 501 (1975)(“Moreover, Congress may grant an express right of
action to persons who otherwise would be barred by prudential
standing rules. Of course, Art. III' s requirement remains: the
plaintiff still must allege a distinct and palpable injury to
himself[.]”); 	O’Shea v. Littleton, 414 U.S. 488, 493 n.2 (1974):
We have previously noted that ‘Congress may enact
statutes creating legal rights, the invasion of which
creates standing, even though no injury would exist
without the statute. See, e.g., Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct.
364, 34 L.Ed.2d 415 (1972) (White, J., concurring);
Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88
S.Ct. 651, 19 L.Ed.2d 787 (1968).’ 	Linda R.S. v.
Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146,
1148, 35 L.Ed.2d 536 (1973). ... Perforce, the
constitutional requirement of an actual case or
controversy remains. Respondents still must show actual
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or threatened injury of some kind to establish standing
in the constitutional sense.
There is no question that the limits imposed by Article III
on federal jurisdiction apply equally in bankruptcy. 	Illinois
Investment Trust No. 92-7163 v. Allied Waste Industries, Inc. (In
re Resource Technology Corp.), 624 F.3d 376, 382 (7 th Cir. 2010);
In re Saffold, 373 B.R. 39, 44 (Bankr. N.D. Ohio 2007). 	And,
finally, the Bankruptcy Court has a duty to raise jurisdiction
sua sponte before reaching the merits of a case. 	GAF Holdings,
LLC v. Rinaldi (In re Farmland Industries, Inc.), 639 F.3d 402,
405 (8 th Cir. 2011); Day v. Klinger (In re Klinger), 301 B.R.
519, 523 n.5 (Bankr. N.D. Ill. 2003); see F.R.B.P. 7012,
incorporating F.R.Civ.P. 12(h)(3).
FINDINGS OF FACT
Fed.R.Bankr.P. 7008 incorporates Fed.R.Civ.P. 8. 	This
latter rule provides, in part:
Rule 8. General Rules of Pleading
(a) Claim for Relief. 	A pleading that states a claim
for relief must contain:
(1) a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing
that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include
relief in the alternative or different types of relief.
The Motion’s Statement of Relevant Facts states: “As
cumbersome as it may be, Debtor respectfully request [sic] the
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Court review all the facts and arguments set forth in the
attached Exhibits 1 & 2. 	Fully incorporated herein by reference,
are attached Exhibits 1 & 2, in support of this Motion.” 	Motion,
doc 941, p.2. 	Exhibits 1 and 2 are the eighty-six page brief Mr.
Cook filed in the Tenth Circuit Court of Appeals purporting to
appeal nine rulings (but, in actuality listing fourteen different
matters) made by this Court over the long history of this case.
The Court declines to read the brief as a statement of
facts. 	First, the brief does not comply with Rule 8. 	It is not
a “short and plain statement” and is not “simple, concise and
direct.” 	The brief is repetitive, tedious, redundant, rambling
and excessively lengthy. 	See, e.g., Pominansky v. Jarj Const.
Corp., 2007 WL 2900275 (S.D. Fla. 2007)(Court dismisses “shotgun”
type pleading for failure to comply with Rule 8). 	It is a
“bloated mass of unnecessary detail.” 	Ciralsky, 355 F.3d at 669.
It contains little more than demands, charges of conspiracies and
unfounded tangled legal conclusions.
[T]he courts have unhesitatingly dismissed actions
where the complaint: consisted of "a labyrinthian
prolixity of unrelated and vituperative charges that
def(y) comprehension . . .", Prezzi v. Schelter, 469
F.2d 691, 692 (2d Cir. 1972), cert. denied, 411 U.S.
935, 93 S.Ct. 1911, 36 L.Ed.2d 396 (1973); was ". . .
confusing, ambiguous, redundant, vague and, in some
respects, unintelligible . 	.", Wallach v. City of
Pagedale, Missouri, supra, 359 F.2d [57] at 58 [(8 th
Cir. 1968)]; was ". . . so verbose, confused and
redundant that its true substance, if any, is well
disguised . . .", Corcoran v. Yorty, 347 F.2d 222, 223
(9th Cir.), cert. denied, 382 U.S. 966, 86 S.Ct. 458,
15 L.Ed.2d 370 (1965); contained ". . . a completely
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unintelligible statement of argumentative fact . . .",
Koll v. Wayzata State Bank, supra, 397 F.2d [124] at
125 [(8 th Cir. 1968)] with ". . . little more than
demands, charges, and conclusions . . .", Burton v.
Peartree, 326 F.Supp. 755, 758 (E.D. Pa. 1971);
represented ". . . circuitous diatribes far removed
from the heart of the claim . . .", Prezzi v. Berzak,
supra, 57 F.R.D. [149] at 151 [(S.D. N.Y. 1972)]; or
set forth ". . . a meandering, disorganized, prolix
narrative . . . ." Karlinsky v. New York Racing
Association, Inc., 310 F.Supp. 937, 939 (S.D. N.Y.
1970).
Brown v. Califano, 75 F.R.D. 497, 499 (D. D.C. 1977). 	Mr. Cook’s
exhibits to the Motion fit these descriptions. 	For all these
reasons they will not be considered.
Second, arguments made to the appellate court are not facts.
To the extent the arguments contain facts, most likely they are
facts that this Court has rejected, causing the appeal in the
first place. 	Finally, it is not the duty of the trial court to
search through voluminous filings in an attempt to locate facts
that might support Cook’s theory that the case was improperly
closed. 	Siosin v. Knights of Columbus, 303 F.3d 458, 460 (2 nd
Cir. 2002).
In addition to the “facts” contained in the brief, Mr. Cook
lists another twenty-four paragraphs of largely irrelevant
“facts.” 	An Errata (doc 944) then amends the twenty-four
paragraphs by inserting and deleting words, phrases, sentences,
and adding and deleting entire legal theories. 	The resulting
pastiche of “facts” are briefly summarized as follows:
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As to fact 1, Mr. Cook believes the estate is not fully
administered for the benefit of creditors and Debtor,
notwithstanding the trustee’s “abandonment 10 or attempted
abandonment” of all assets on July 1, 2009 (doc 844) and by the
Court’s closing 11 the case on August 21, 2012.
As to fact 2, Mr. Cook asserts that the Notice of
Abandonment (doc 844) filed by Trustee Montoya resulted in
commitments by the Debtors and the corporate entities not to
pursue causes of action against Montoya and the former Chapter 11
Trustee Linda Bloom. 	Even if this were true, it is not relevant
to whether the case was properly closed. 	It is also not relevant
to whether there are assets still to be administered. 	It may
show that Mr. Cook believes there are assets in the form of
claims against the previous trustees or claims that the trustees
should perhaps have pursued. 	In fact, however, neither trustee
pursued any claims against anyone, there are no indications that
either trustee believed there were claims against anyone, and
10 This Court has issued a series of opinions in this case
that clearly state that the Trustee’s no asset report and Notice
of Abandonment (doc 844), both entered on July 1, 2009
accomplished nothing and most definitely did not abandon assets.
The Bankruptcy Appellate Panel has affirmed. 	This Court has also
ruled in this case that there is no “attempted abandonment” and
that assets may be abandoned only as stated in the statute.
Either Mr. Cook has not read this Court’s opinions or simply
chooses to ignore them.
11 As discussed above, unscheduled assets (if any) are not
abandoned when a case closes, but remain in the estate.
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even if there were, the Court defers to a trustee’s sound
business judgment in deciding whether to administer assets. 	See
Frostbaum v. Ochs (In re Samuel), 277 B.R. 470, 475-76 (E.D. N.Y.
2002):
As the hearing transcript demonstrates, Judge
Craig relied on the business judgment rule in granting
the Trustee's application for a final distribution and
accounting, despite the Trustee's failure to collect
further funds to settle Frostbaum's subordinated claim.
As with a decision to reject an executory contract, or
to abandon burdensome property, it was appropriate to
rely on the Trustee's business judgment in abandoning
collection of this claim. 	The Trustee's decision that
further attempts to collect assets from the Debtor
would be fruitless and only result in greater expense
in administering the estate was well within the scope
of decisions left to the Trustee's business judgment.
So long as this decision was not made arbitrarily, or
in bad faith, it was appropriate for the Bankruptcy
Court to accept this decision for the benefit of the
estate and to grant the Trustee's final application.
See In re Curlew Valley Assocs., 14 B.R. 506 (Bankr. D.
Utah 1981)(“In short the court will not entertain
objections to a trustee's conduct of the estate where
that conduct involves a business judgment made in good
faith, upon a reasonable basis, and within the scope of
his authority under the Code.”); see also In re Fulton,
162 B.R. 539, 540 (Bankr. W.D. Mo. 1993) (citing Curlew
with approval and holding it appropriate for Trustee to
close the estate and to abandon any causes of action
for which recovery was highly unlikely); cf. In re Lyon
& Reboli, Inc., 24 B.R. 152, 154–55 (Bankr. E.D. N.Y.
1982)(quoting rationale of Curlew but distinguishing
case at issue).
The Court further notes that there were no funds in the estate to
pursue litigation (doc 848, Trustee’s report shows no funds
collected and none expected) and no proof offered that any
attorney would have undertaken such speculative complex
commercial litigation on a contingency fee basis. 	Collection
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costs often factor heavily in a trustee’s business judgment. 	Id.
at 475.
Cook’s facts 3-7 refer to two cases pending in the Tenth
Circuit Court of Appeals 12 . 	Fact 3 specifically deals with
Appeal 12-2023, Cook v. Hon. Theodore C. Baca, et. al. 	This
lawsuit was filed by Mr. Cook post-petition 13 , post-conversion 14
12 It is absolutely clear that once an appeal is filed, the
trial court loses jurisdiction of the matter appealed.
Therefore, to the extent Mr. Cook is asking for yet another
reconsideration of everything on appeal, the Court cannot grant
any relief. 	See Garcia v. Burlington Northern Railroad Co. 818
F.2d 713, 721 (10 th Cir. 1987):
Filing a timely notice of appeal pursuant to
Fed.R.App.P. 3 transfers the matter from the district
court to the court of appeals. 	Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400,
402, 74 L.Ed.2d 225 (1982) (per curiam); Gryar v. Odeco
Drilling, Inc., 674 F.2d 373, 375 (5th Cir. 1982). 	The
district court is thus divested of jurisdiction. 	Any
subsequent action by it is null and void. 	Offshore
Logistics Servs., Inc. v. Mutual Marine Office, Inc.,
639 F.2d 1168, 1170 (5th Cir. Unit A Mar. 1981); Taylor
v. Wood, 458 F.2d 15, 16 (9th Cir. 1972).
See also Bialac v. Harsh Investment Corp. (In re Bialac), 694
F.2d 625, 627 (9 th Cir. 1992):
The pending appeal divested the lower court of
jurisdiction to proceed further in the matter. 	See In
re Thorp, 655 F.2d 997 (9th Cir. 1981) (per curiam);
Petrol Stops Northwest v. Continental Oil Co., 647 F.2d
1005, 1010 (9th Cir. 1981). 	Even though a bankruptcy
court has wide latitude to reconsider and vacate its
own prior decisions, not even a bankruptcy court may
vacate or modify an order while on appeal. 	In re
Combined Metals Reduction Co., 557 F.2d 179, 200-01
(9th Cir. 1977)(Footnote omitted.)
13 Cook’s Chapter 11 was filed on October 21, 2004.
14 The case converted to Chapter 7 on March 20, 2008.
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in the United States District Court, District of New Mexico. 	Mr.
Cook describes the case as follows:
This is an action for damages and equitable relief
based on the discrimination of and denial of Plaintiffs
federally protected equal civil rights, as well as for
damages and equitable relief based on post bankruptcy
petition: contract breach, breach of duty of good faith
and fair dealing, fraud, negligent misrepresentation,
fraud in the inducement, intentional interference with
contract, malicious abuse of process, civil conspiracy,
intentional inflection [sic] of emotional distress,
slander of title, violations of unfair practices act
and prima facie tort.
Cook v. Baca, 10-cv-1173-JAP-KBM (D. N.M. filed Dec. 9, 2010),
doc 1, p.1. (Emphasis added.) 	Cook’s fact 3 claims that this
civil rights case is “arising in a Title 11" and should be
administered in the Bankruptcy Court to accord the Debtor and
other creditors relief. 	This “fact” is not a fact at all;
rather, it is a legal conclusion, and an incorrect one at that.
Matters “arise in” a bankruptcy if they concern the
administration of the bankruptcy case and have no existence
outside of the bankruptcy. 	Wood v. Wood (In re Wood), 825 F.2d
90, 97 (5 th Cir. 1987); Personette v. Kennedy (In re Midgard
Corp.), 204 B.R. 764, 771 (10 th Cir. BAP 1997). 	Civil rights
actions accruing post-petition to a chapter 7 debtor have nothing
to do with administration of the bankruptcy case and certainly
have an existence outside of the bankruptcy court. 	Therefore,
they cannot “arise in” bankruptcy. 	Furthermore, with rare
exceptions not applicable here, property acquired by a chapter 7
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debtor after the petition is not property of the estate at all
and the bankruptcy has no control or jurisdiction over it.
Sender v. Buchanan (In re Hedged-Investments Assoc., Inc.), 84
F.3d 1281, 1285 (10 th Cir. 1996):
We emphasize § 541(a)(1) limits estate property to the
debtor's interests “as of the commencement of the
case.” 	This phrase places both temporal and
qualitative limitations on the reach of the bankruptcy
estate. 	In a temporal sense, it establishes a clear-
cut date after which property acquired by the debtor
will normally not become property of the bankruptcy
estate. 	See generally 4 Collier on Bankruptcy ¶
541.05. 	In a qualitative sense, the phrase establishes
the estate's rights as no stronger than they were when
actually held by the debtor. 	Hays & Co. v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149,
1154 n.7 (3d Cir. 1989).
In fact 7, Mr. Cook also cites In re Johnson, 575 F.3d 1079,
1082-83 (10 th Cir. 2009) for the “well established” proposition
that once the trustee is discharged a debtor has standing
pursuant to § 362(k) to pursue stay violations. 	In fact, Johnson
stands for the proposition that once a debtor establishes his or
her own automatic stay damages 15 , a dismissal of the underlying
bankruptcy does not deprive the court of jurisdiction to award
those damages 16 . 	If Mr. Cook could establish that he personally
15 “[T]he bankruptcy court determined that M & M had violated
the automatic stay by repossessing the Johnsons' pickup truck
while their bankruptcy case was pending. 	The bankruptcy court
awarded the Johnsons $937.50 for loss of use of the vehicle,
$5,028.50 in attorney fees, and $232.23 for costs, a total of
$6,198.23.” 	Johnson, 575 F.3d at 1081 (Citations omitted.)
16 The Johnson case never uses the word “standing” in the
(continued...)
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sustained damages (as opposed to his corporations) from actions
taken by Wells Fargo, the Garretts and others then he would have
the same standing the Johnsons had. 	But, his claims were that
corporate property and estate property were damaged. 	For this he
has no standing.
Cook’s fact 8 is that the Chapter 7 trustee and his previous
counsel and he himself had taken the position that all remaining
assets were abandoned on July 1, 2009. 	It is not material or
relevant that the trustee, his counsel and Mr. Cook had taken an
incorrect position as a matter of law. 	Mr. Cook urges the Court
to join his position to moot out the relief he is requesting in
the Tenth Circuit. 	This Court cannot. 	See note 12, above (trial
court loses jurisdiction when appeal taken).
Cook’s fact 9 is convoluted and dense. 	The Court believes
that Mr. Cook is stating that: 1) The chapter 11 trustee made an
argument that certain unscheduled assets purportedly owned by
some of Cook’s corporations should be declared to be estate
16 (...continued)
entire opinion. 	While the bankruptcy court did find damages,
which is a crucial element of standing, standing was simply not
an issue in the case. 	See also Thomas J. Salerno, Craig D.
Hansen, G. Christopher Meyer, Sheil M. Williams and George M.
Basharis, Advanced Chapter 11 Bankruptcy Practice, § 3.8
(Bankruptcy Court Subject Matter Jurisdiction under BAFJA), 113
n.12 (Citing Johnson only for its affirmance of the BAP's
determination that the bankruptcy court retained jurisdiction
over a Section 362(k)(1) matter for willful violation of the
automatic stay after the court dismissed the underlying
bankruptcy case) (citing 28 U.S.C. §§ 1334(b) and 157(b)(1)).
Page -29-
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property. 	She arrived at this argument through a plausible
reading of the transfer documents and the non-occurence of a
subsequent event 17 ; if the trustee could obtain this property,
she could sell it. 	2) Because the trustee made this claim to
those assets, Cook argues that the corporations were damaged (in
an unspecified way), so the automatic stay should be reinstated 18
until the disputed ownership of those assets is determined and
the Court computes damages due to the Cook corporations. 3)
Because those assets were subject to unfavorable orders entered
in the State Court Action, this Court should declare those orders
void as violative of the automatic stay. 	4) All of this relief
would be a core proceeding.
Mr. Cook ignores or forgets the fact that these assets were
the subject of an adversary proceeding (Adv. No. 07-1038-S) in
which a Memorandum Opinion (doc 33) made certain findings: a)
that the purchaser had in fact satisfied the maintenance
requirements, b) the trustee’s attempt to exercise the reversion
had no effect, c) the transferred assets never belonged to the
Cooks and never became estate property. 	Furthermore, the Court
finds that simply because a trustee makes an attempt to obtain
17 The transfer document transferred assets subject to a
possibility of reverter in the event that the transferee could
not maintain the transferred assets.
18 A proceeding to reinstate an automatic stay must be an
adversary proceeding. 	In re Bryant, 256 B.R. 516, 520 (Bankr. D.
Colo. 2003).
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assets with a good faith belief the estate is entitled to them
does not, ipse dixit, give them the protection of the automatic
stay. 	In fact, the assets were not and never were estate
property and therefore never protected by the automatic stay.
And, since the property never belonged to the Debtors (or their
estate), any damage to the assets that happened in the State
Court Action was inflicted on Cook’s corporations, not him
individually. 	Simply stated, this is another attempt by Mr. Cook
to assert the rights of others not before the Court. 	This is a
state court dispute and it is not a core, or even related to,
proceeding.
Cook’s fact 10 states that the State Court did not allow him
to address the Bank’s security interest in the property he
claimed exempt. 	This is not a bankruptcy issue; if Mr. Cook has
a problem with the State Court’s judgment, he should appeal it to
the state appellate courts. 	He further states that this Court
did not allow him to seek to void an “alleged collateral
interest” of the Bank, but lifted the stay. 	It is true the Court
lifted the stay (and annulled it), but there was no adversary
proceeding that sought to determine lien positions of the bank in
exempt property. 	However, as noted above, if Mr. Cook believes
he can avoid a lien, he can file a motion to reopen the case, pay
the fee, and file a motion.
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Mr. Cook’s fact 11 states that the case needs to remain open
so that the pending dischargeability adversary proceeding can be
administered. 	This is not true. 	Dischargeability of a debt has
nothing to do with case administration. 	See In re Banks-Davis,
148 B.R. 810, 812-13 (Bankr. E.D. Va. 1992)(Courts retain
jurisdiction over matters “arising in” a bankruptcy case, such as
dischargeability, after the case is closed.)
Mr. Cook withdrew facts 12 through 14. 	Mr. Cook’s fact 15
is that if the United States District Court’s decision is
affirmed [sic] 19 the matters would be brought to this Court to
administer. 	This is incorrect; it would be remanded to the
United States District Court. 	This civil rights case was not
part of the bankruptcy estate.
Facts 15 through 18 are redundant of matters already
discussed. 	Fact 19 states that the Cooks owe nondischargeable
taxes and the proceeds from the stay violations should be used to
pay those taxes 20 . 	This argument is redundant of whether Cook
has standing to pursue estate actions, pending in the Tenth
Circuit and not addressable in this Court at this time. 	Facts 22
through 24 are redundant requests for relief, but add that Mr.
19 The District Court dismissed the civil rights case.
20 The Court believes that this is the first mention of
taxes. 	If taxes are owed this fact was known before the case
closed so it is not “new evidence” that would justify Rule 59
relief.
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Cook’s opinion of the value of his damages claims for stay
violations is $5.5 billion. 	Mr. Cook forgets that the stay was
annulled and the property allegedly harmed was not estate
property.
In summary, none of Mr. Cook’s “facts” provide new evidence
that would have delayed closing the case nor pointed out any
manifest errors in the case closure. 	The Motion to Reconsider
should be denied.
FINDINGS BY THE COURT
The Court finds the following facts established by the
record are the only ones relevant to this Motion.
1) 	On September 6, 2006, Debtor was represented by bankruptcy
counsel. 	On that date his attorney filed a Motion to Dismiss the
bankruptcy case after the August 16, 2006 appointment of the
Chapter 11 Trustee. 	A portion of that motion alleges:
8. The only assets that may have value are the
intellectual property rights, which are burdened with
conflicting claims of ownership and assertions of
liens. 	Those rights can most efficiently and
effectively be determined in the pending state court
litigation [i.e., the State Court Action].
9. Under all the circumstances of this case, the best
interests of the creditors and the estate would be
served by dismissing the Chapter 11 proceeding to avoid
further administrative expenses. There are no assets
available for liquidation by the trustee which are not
already the subject of the state court litigation.
Doc 389.
2) 	On August 13, 2009, Mr. Cook (who by then was self-
represented) filed a Motion to Withdraw the Reference to the
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Bankruptcy Court in Adv. No. 04-1246-S, Cook v. Eastern Savings
Bank, FSB. 	The District Court assigned the motion a case number
of CIV-09-803-JCH-CG. 	This motion alleges, among other things:
16. The Cooks bankruptcy case appears as though it
could be dismissed but for this pending case and one
more adversary, Adv. 08-01074 21 ; the Bankruptcy Court
has under advisement a pending motion to dismiss Adv.
08-01074, and if dismissed, it appears this case could
be dismissed in the near future.
...
19. The [sic] is nothing more for the Bankruptcy Court
to administer as all assets of the estate including
this Adversary have been abandoned on July 1, 2009. See
In re Hill, 195 B.R. 147, 151 (Bankr. D. N.M. 1996)
(citing In re Sutton 10 B.R 737 (Bankr. E.D. Va.
1981)).
3) 	On April 19, 2010, District Judge Judith Herrera entered a
Memorandum Opinion and Order Granting the Motion to Withdraw the
Reference. 	One stated reason for granting the Motion was “In
addition, withdrawing the matter will not affect the bankruptcy
process as there are no bankruptcy-related issues remaining.” 22
21 Adversary case 08-1074 is a complaint to determine
dischargeability of debt filed by the Garretts and is still
languishing today in the final stages of discovery.
22 Facts 1, 2 and 3 demonstrate that Mr. Cook’s valuation
estimates vary tremendously with the relief requested. 	In facts
1 and 2 he represents that it is doubtful that anything is worth
anything. 	This representation was in fact accepted by the
District Court in withdrawing the reference. 	Now that he wishes
to keep his no asset case open, suddenly the estate is worth $5.5
billion. 	This screams judicial estoppel. 	See Johnson v. Lindon
City Corp., 405 F.3d 1065, 1070 (10th Cir. 2005)(Judicial
estoppel protects the integrity of the judicial process by
prohibiting parties from deliberately changing positions
according to the exigencies of the moment.)(Citations omitted.)
(continued...)
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4) 	On July 1, 2009 the Trustee also filed a “Notice of
Abandonment” (doc 844) that stated: “COMES NOW Philip J. Montoya,
the Chapter 7 Trustee herein, and gives notice that he abandons
all remaining property of the estate.”
5) 	On July 31, 2009, Mr. Montoya filed a Chapter 7 Trustee’s
Interim Report (doc 848) that stated there were no assets on
hand, the value of assets remaining to be administered was zero,
and listed no activities that would prevent case closing.
6) 	No objections have ever been filed to the Report of No
Distribution or the Trustee’s Notice of Abandonment.
7) 	The Court properly closed the case pursuant to Rule 5009
when no objections were filed.
8) 	Closing of the case abandoned all scheduled assets.
9) 	The automatic stay terminated as to all assets that left the
estate upon closing.
10) 	Mr. Cook has not met his burden of proof to overcome the
presumption that the case was fully administered.
11) 	The Court cannot find that there are significant assets to
justify setting aside the Final Decree.
OTHER MATTERS
22 (...continued)
The Court will not base its decision on judicial estoppel,
however. 	These facts are cited only to establish that the values
ascribed by the Debtor are to be taken with a grain of salt.
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1. 	Because Mr. Cook is self-represented the Court should
construe his pleadings liberally to afford justice. 23 	His Motion
could be construed as a Motion to Reopen the case (for which no
filing fee was paid). 	Examined in that light, the Court also
denies the motion 1) for lack of ripeness, and 2) for lack of
standing (in part).
In order for a claim to be justiciable under
Article III, it must be shown to be a ripe controversy.
“[R]ipeness is peculiarly a question of timing,”
Regional Rail Reorganization Act Cases, 419 U.S. 102,
140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320 (1975), intended
“to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements,” Abbott Labs. v. Gardner, 387 U.S. 136,
148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). 	In
short, the doctrine of ripeness is intended to
forestall judicial determinations of disputes until the
controversy is presented in “ ‘clean-cut and concrete
form.’ ” Renne [v. Geary], 501 U.S. [312] at 322, 111
S.Ct. [2331] at 2339 [(1991)](quoting Rescue Army v.
Municipal Court of Los Angeles, 331 U.S. 549, 584, 67
S.Ct. 1409, 1427, 91 L.Ed. 1666 (1947)).
... In determining whether an issue is fit for
judicial review, the central focus is on “whether the
case involves uncertain or contingent future events
that may not occur as anticipated, or indeed may not
occur at all.” 	13A Wright, Miller & Cooper, Federal
Practice & Procedure, § 3532 at 112.
23 	A pro se litigant's pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers. 	We believe that this rule
means that if the court can reasonably read the pleadings to
state a valid claim on which the plaintiff could prevail, it
should do so despite the plaintiff's failure to cite proper
legal authority, his confusion of various legal theories,
his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)(Citations
and footnote omitted.)
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New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499
(10th Cir. 1995). 	See also Evers v. Astrue, 536 F.3d 651, 662
(7th Cir. 2008):
[S]ome of the remaining claims fail because they
are not ripe. 	See Nat'l Park Hospitality Ass'n v.
Dep't of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026,
155 L.Ed.2d 1017 (2003); see also Ind. Right to Life,
Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007).
For example, Dr. Evers requested that his prospective
employers be given good references “in the event Dr.
Evers secures employment with another branch of [SSA],
another governmental agency, or in the private sector
....” (emphasis added). 	Evers has not indicated that
he has or will pursue such employment, and SSA has not
stated that it will fail to provide adequate
references—this claim rests upon “‘contingent future
events that may not occur as anticipated, or indeed may
not occur at all.’” 	Texas v. United States, 523 U.S.
296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)
(quoting Thomas v. Union Carbide Agric. Prods. Co., 473
U.S. 568, 580–81, 105 S.Ct. 3325, 87 L.Ed.2d 409
(1985)). 	Evers also requested that his “name be
removed from the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs in the event
that [SSA] has already complied with [federal
regulations].” (emphasis added). 	Again, this claim
raises an unripe claim because SSA explained that it
has not placed Evers on any such list. 	See id. at 300,
118 S.Ct. 1257.
Ripeness is a jurisdictional prerequisite for federal
jurisdiction, and the Court must examine it sua sponte. 	Friends
of Marolt Park v. United States Department of Transportation, 382
F.3d 1088, 1093 (10th Cir. 2004).
Cook’s Motion distills down to two requests: 1) maintain a
forum for him to continue his pursuits against Wells Fargo Bank,
the Garretts, and the former trustees, and 2) to maintain a forum
in which he can avoid liens against exempt property.
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As to the attempt to maintain a forum to pursue claims, this
relief would be available if and only if the Tenth Circuit Court
of Appeals reverses this Court’s standing determination, which
may never occur at all. 	Therefore, it is not ripe. 	The Court
also cannot grant any relief now because Mr. Cook lacks
standing 24 .
24 This Court has already ruled several times that Mr. Cook
and his corporations lack standing to pursue stay violations.
The Court now finds that Mr. Cook, as a discharged debtor in a
Chapter 7 case, lacks standing to file a motion to reopen the
bankruptcy case in order to pursue assets for creditors. 	He has
no financial interest in the estate and cannot receive any
benefit. 	Mullendore, 741 F.2d at 308 (“Application to have the
estate reopened may be made by an ‘interested party’ who would be
benefited [sic] by the reopening.”)(Citation omitted); Pardo v.
Countrywide Home Loans, Inc. (In re Pardo), 401 B.R. 509, 511
(Bankr. S.D. Fla. 2009):
Pardo is seeking reentry into Chapter 7 for purposes of
pursuing litigation arising out of his former Chapter
13 case. Further muddying matters, any claims arising
out of Pardo's failed Chapter 13 would be litigation
assets of his estate. In such a case, “The trustee has
sole authority to dispose of property, including
managing litigation related to the estate.” Cable v.
Ivy Tech State College, 200 F.3d 467, 472 (7th Cir.
1999). The Trustee is not a plaintiff.
Thus, in short, Pardo would like to reenter
Chapter 7—something for which he is ineligible—so that
he may pursue a claim under Chapter 13—something for
which he has no standing.
See also In re Ayoub, 72 B.R. 808, 811-12 (Bankr. M.D. Fla.
1987):
The right to reopen a closed estate is
specifically recognized by the Bankruptcy Code. ...
Obviously, the initial inquiry must be addressed
to the question of standing, that is, standing to file
a motion to reopen, and standing to object to the
motion. Considering the first question it is quite
evident that if the purpose of reopening the estate is
to administer assets, only creditors have a standing to
(continued...)
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As to the avoidance of possible liens, the Motion must be
denied because it is not ripe. 	Cook mentions only “possible”
liens. 	Therefore, there is no current case or controversy and
the Court lacks jurisdiction. 	The Court cannot grant the relief
of avoiding “possible” liens.
2. 	In adversary proceeding No. 11-1144 Wells Fargo Bank, NA
sought an injunction against Mr. Cook to prevent his abuses of
serial filings of complaints against Wells Fargo in state court,
Bankruptcy Court, and the United States District Court. 	After
the initial pretrial conference, the Court entered an Order
Dismissing Adversary Proceeding which stated, in part:
The Court finds that it should dismiss the adversary
without prejudice based on Mr. Cook’s representation
that he currently has no intention of filing anything
more against Wells Fargo Bank, NA based on facts
existing as of the date of the hearing, except anything
that might result from a reversal of order(s) pending
appeal in the Bankruptcy Appellate Panel.
(Adv. No. 11-1144-S, Order, doc 12, October 31, 2011). 	The
Bankruptcy Appellate Panel, in fact, affirmed.
24 (...continued)
seek an additional administration and clearly not the
debtor. If the purpose of reopening is to accord relief
to the Debtor, it is obvious that nobody but the Debtor
has standing to seek to reopen the closed case.
Accord In re Quine, 38 F.Supp. 869, 870 (E.D. La. 1941)(“[A]
petition to reopen a bankrupt’s estate on the ground that it was
closed before it was fully administered can only be filed by one
who has an interest and will be benefited [sic]
thereby.”)(Citation omitted; decided under former law).
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The Court has taken judicial notice of the filings in Cook’s
Civil Rights Case, No. 10-CV-1173-JAP-KBM (D. N.M.). 	On August
24, 2011 the Hon. Theodore C. Baca filed a Motion to Enjoin
Further Pleadings by Daniel W. Cook (doc 100). 	That motion
recites, in part:
It is time for Mr. Cook’s abuse of the judicial
system to be checked. In his latest volley, Mr. Cook
has filed a motion for reconsideration, despite the
fact that no such animal exists in the Federal Rules of
Civil Procedure. Mr. Cook is aware of this fact. The
time for engaging Mr. Cook is long since past. Judge
Baca is not responding to Mr. Cook’s Motion, as Mr.
Cook does not explicitly ask the Court to revisit the
dismissal of Judge Baca from the case. But Mr. Cook
persists in reasserting his disturbing, unfounded,
conclusory, inflammatory allegations that Judge Baca
has violated Mr. Cook’s civil rights. Additionally, Mr.
Cook has filed a subsequent adversary bankruptcy
proceeding, naming Judge Baca’s successor in the state
case, the Honorable Alan Malott, as a defendant.
To stop Cook’s repetitive, vexatious pleading, and
in the interest of justice for others—particularly
litigants in other cases who must wait while this Court
and other courts deal with Mr. Cook’s frivolous
pleadings, Judge Baca hereby requests that the Court
enjoin Mr. Cook from further pleadings related to the
state case or the matters underlying the state case
without first obtaining either the signature of a
member of the New Mexico federal bar or leave of Court.
(Case 10-cv-1173-JAP-KBM, doc 100) (footnote omitted). 	After a
round of briefing, Senior United States District Judge James A.
Parker issued an Order to Show Cause that found: “Plaintiff
Daniel W. Cook (Plaintiff or Mr. Cook) has engaged in a pattern
of vexatious and abusive litigation activity in this and other
cases filed in this Court.” 	(Id., doc 124, January 13, 2012).
The Order summarizes the long, twisted litigation history of Mr.
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Cook with the various parties that has proceeded in the New
Mexico State District Court, the New Mexico Court of Appeals, the
New Mexico Supreme Court, the Bankruptcy Court, the District
Court, and the Tenth Circuit Court of Appeals and has included,
among other items, requests to enjoin the state court from
ruling, removals, remands, sanctions, an application for a writ
of mandamus, motions to reconsider virtually every order entered
by every judge, a motion in the Tenth Circuit for a rehearing en
banc 25 , suits against judges and the adverse parties’ attorneys,
and claims of conspiracy, RICO violations and civil rights
deprivations. 	Judge Parker refers to United States District
Court Chief Judge Black’s opinion in Case No. 10-CV-71:
Chief Judge Black described Plaintiff’s vexatious
and abusive litigation strategy in the state court
case:
This litigation has a long and tortured history.
Initiated almost seven years ago, this matter has
seen the addition and subtraction of claims,
parties, suits, and complaints. 	It has included
bankruptcy proceedings and federal-court
abstention, has been the subject of an appeal to
the New Mexico Court of Appeals, has spawned a
request for extraordinary writs to the New Mexico
Supreme Court, and, in its relatively brief stay
in this Court, has included eight motions. 	And
yet even this laundry list of procedural gambits
gives the impression that the suit has progressed,
though in a herky-jerky fashion, along a complex
but coherent path. 	It has not. 	This matter’s
unorthodox posture is almost wholly attributable
25 See Appeal 10-2207, Garrett v. Cook, Cook’s Petition for
Rehearing En Banc (December 3, 2010). 	The Petition and attached
documents total 332 pages. 	The Supplemental appendix contained
an additional 143 pages.
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to the efforts of pro se litigant Daniel Cook.
Mr. Cook’s filings have moved the suit hither and
yon–from court to court, judge to judge–forcing
the parties and the courts to untangle novel,
largely unsupported arguments and procedural
machinations.
Case No. 10 CV 71, Memorandum Opinion (Doc. No. 42) at
2.
Chief Judge Black aptly noted that Plaintiff’s
removal of the state court case exposed “an unfortunate
reality.” Id. at 6.
When a litigant–even, or perhaps especially, a pro
se litigant–‘engage[s] in a pattern of litigation
activity that is abusive and vexatious,’ he exacts
significant time and resources from opposing
parties, who feel compelled to respond to each
baseless allegation in protecting their rights.
In many cases, defendants find it less expensive
to settle such cases than to respond to a
determined litigant’s sustained abuse. 	Courts
bear a responsibility in protecting against such
vexatious tactics. 	To that end, they may, inter
alia, enjoin additional filing, impose sanctions,
or require the payment of opposing parties’
expenses. 	Were Mr. Cook to remain in federal
court and continue his current antics, he would
likely see all three.
(Id. 6-7.) 	This Court not only agrees with Chief Judge
Black, the Court also finds that Plaintiff continues to
employ the same litigation “strategy” in this case.
Plaintiff has filed voluminous pleadings complaining of
actions in the state court case by repackaging or
reasserting claims related to issues decided in other
courts. 	Under this strategy, Plaintiff continuously
asserts claims over which this Court lacks jurisdiction
or that have no legal basis upon which the Court can
grant relief. 	Thus, the Court finds that an injunction
against such tactics is warranted.
Judge Parker then proposed the following filing restrictions:
The proposed filing restrictions are as follows:
1. Mr. Cook, individually, as representative of Yolanda
Cook, deceased, as representative of any corporate
entity (including Hydroscope Group, Inc. Hydroscope
Inc., USA, or Hydroscope Canada, Inc.), or as successor
in interest to Philip J. Montoya, Plaintiff’s Chapter 7
Page -42-
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bankruptcy trustee, will be enjoined from filing any
pleadings, motions, or other documents in this Court
without the signature of an attorney licensed to
practice before this Court.
2. Mr. Cook will be enjoined from filing any pleadings,
motions, or other documents pro se in this Court
without leave of Court.
3. In seeking leave of Court to file documents pro se,
Mr. Cook will be required to submit to the Clerk of
Court an affidavit entitled “Application Seeking Leave
To File” with an attached copy of the order entered by
this Court imposing the filing restrictions. The
affidavit must contain the following:
A. a brief description of the legal basis for the
relief sought and a certification that the claims
or contentions have not been raised or disposed of
on the merits by any court.
B. a certification that to the best of Mr. Cook’s
knowledge, the legal arguments advanced are not
frivolous or made in bad faith, are warranted by
existing law or a good faith argument for the
extension, modification or reversal of existing
law, are not imposed for any improper purpose,
such as delay, or needless increase in the cost of
litigation;
C. a certification that Mr. Cook will comply with
all rules of procedure and local rules of the
Court; and
D. a certification that the proposed pleading,
motion or other document has not been ghost-
written by a lawyer.
Judge Parker fixed a deadline of January 25, 2012 to respond.
Mr. Cook timely filed a Response to the Order to Show Cause
(Id., doc 127). 	Despite the overwhelming evidence of his abuse,
he defiantly denied all of the allegations and again recited as
facts a summary of each pleading on which he has been ruled
against and flatly claimed that each was well grounded in law.
He also faulted the Court for not identifying, with specificity,
Page -43-
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each pleading he had filed over the seven year course of
litigation that would be evidence of his abuse and argued that
his civil rights were again being violated. 	However, on page 12
of his response, Cook stated:
Cook affirmatively states to this Court there is
absolutely no likelihood he would file any other
actions in any federal district court against the
parties named in his one and only complaint filed by
Cook in the federal courts, not unless the Tenth
Circuit found the dismissal of his complaint by this
Court was err. [sic]. 	There is absolutely no need for
any imposed filing restriction upon Cook by this Court
whether or not there could be a finding that one or
more filings by Cook was abusive and or filed for some
other unacceptable purpose.
(Id., doc 127, p.12). 	Judge Parker entered an Order on February
6, 2012 (doc 128) quoting the cited passage and finding that it
would not be necessary to impose, at that time, the proposed
filing restrictions. 	The Court ordered “[T]he proposed filing
restrictions set forth in the ORDER TO SHOW CAUSE (Doc. No. 124)
will not be imposed at this time based on the promise by
Plaintiff Daniel W. Cook set forth in his Response (Doc. No.
127).”
This Court now finds that Cook’s Motion to Alter or Amend
Final Decree, or Alternatively Vacate [Final Decree], Reinstate
Automatic Stay, and to Retain Jurisdiction for All Matters
Related to the Bankruptcy to Afford Constitutional Rights Granted
by Art 1, Section 8, Clause 4 of the U.S. Constitution was a
direct attack on Wells Fargo Bank, the Garretts, and the former
Page -44-
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Trustees, that justifies reopening adversary proceeding No. 11-
1144. 	This Motion was a direct breach of the promise Mr. Cook
made to the Court that caused the adversary to be dismissed. 	The
Court finds that this Motion was a transparent attempt to
preserve a venue in which Mr. Cook could continue to file
groundless and vexatious pleadings. 	The Motion continues Mr.
Cook’s long-standing strategy of pleading hundreds of irrelevant
facts, attaching grossly voluminous exhibits, and making spurious
and outrageous, defamatory claims about the other parties that
have already been ruled upon (against Mr. Cook). 	The Motion was
devoid of any merit and, despite Mr. Cook’s intimate familiarity
with motions to reconsider, it failed to allege or satisfy any
element required for a successful motion to alter or amend. 	The
Court also finds that the Motion is a clear violation of
Fed.R.Bankr.P. 9011. 26 	In consequence, the Court would
26 That Rule provides, in part:
Rule 9011. Signing of Papers; Representations to the
Court; Sanctions; Verification and Copies of Papers
(a) Signing of papers
Every petition, pleading, written motion, and other
paper, except a list, schedule, or statement, or
amendments thereto, shall be signed by at least one
attorney of record in the attorney's individual name. A
party who is not represented by an attorney shall sign
all papers. Each paper shall state the signer's address
and telephone number, if any. An unsigned paper shall
be stricken unless omission of the signature is
corrected promptly after being called to the attention
of the attorney or party.
(b) Representations to the court
(continued...)
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26 (...continued)
By presenting to the court (whether by signing, filing,
submitting, or later advocating) a petition, pleading,
written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of
the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances,--
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of
litigation;
(2) the claims, defenses, and other legal
contentions therein are warranted by existing law
or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions
have evidentiary support or, if specifically so
identified, are likely to have evidentiary support
after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically so
identified, are reasonably based on a lack of
information or belief.
(c) Sanctions
If, after notice and a reasonable opportunity to
respond, the court determines that subdivision (b) has
been violated, the court may, subject to the conditions
stated below, impose an appropriate sanction upon the
attorneys, law firms, or parties that have violated
subdivision (b) or are responsible for the violation.
(1) How initiated
...
(B) On court's initiative
On its own initiative, the court may enter an
order describing the specific conduct that appears
to violate subdivision (b) and directing an
attorney, law firm, or party to show cause why it
has not violated subdivision (b) with respect
thereto.
(2) Nature of sanction; limitations
A sanction imposed for violation of this rule
shall be limited to what is sufficient to deter
repetition of such conduct or comparable conduct
(continued...)
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ordinarily, by separate Order to Show Cause, give Mr. Cook the
opportunity to explain why sanctions should not be imposed for
the Motion’s misstatement of facts, misstatements of law,
arguments made without any legal support or without indicating
that they would be changing the existing law, for presenting
arguments on which he had already been overruled without
revealing that fact, and for its failure to investigate bald and
inaccurate allegations 27 .
26 (...continued)
by others similarly situated. Subject to the
limitations in subparagraphs (A) and (B), the
sanction may consist of, or include, directives of
a nonmonetary nature, an order to pay a penalty
into court, or, if imposed on motion and warranted
for effective deterrence, an order directing
payment to the movant of some or all of the
reasonable attorneys' fees and other expenses
incurred as a direct result of the violation.
(A) Monetary sanctions may not be awarded
against a represented party for a violation
of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on
the court's initiative unless the court
issues its order to show cause before a
voluntary dismissal or settlement of the
claims made by or against the party which is,
or whose attorneys are, to be sanctioned.
(3) Order
When imposing sanctions, the court shall describe the
conduct determined to constitute a violation of this
rule and explain the basis for the sanction imposed.
...
27 E.g., Mr. Cook’s claims that Judge Starzynski was signing
orders without any authority to do so because he had retired.
This was obviously stated with no prior investigation into the
facts. 	A simple phone call to the Court Clerk, the newly
(continued...)
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The difficulty with reopening the adversary proceeding and
proceeding with a sanctions inquiry is that such proceedings
require significant time to adjudicate, and in this instance,
more time than this judge has remaining in his recall
appointment. 	See note 1 above. 	Thus, the completion of either
or both the reopening of the adversary proceeding or Rule 9011
sanctions would necessitate another recall order from the Tenth
Circuit Court of Appeals so that this judge could complete that
process, or the transfer of these specific proceedings to another
judge. 	This judge can say with some confidence that neither he
nor the Tenth Circuit contemplated his recall duty extending
beyond this calendar year. 	And as to the transfer to another
judge, this specific problem would require so much of an
education for the succeeding judge as to considerably increase
the burden that Mr. Cook is already imposing on the judiciary,
thereby causing the very harm that reopening the adversary
proceeding and imposing Rule 9011 sanctions would be intended to
prevent. 	For this reason, the Court declines at this time to
27 (...continued)
appointed Judge Thuma’s Chambers, Chief Judge Jacobvitz’s
Chambers, or the Tenth Circuit Court of Appeals would have
revealed the ridiculousness of this claim. 	Furthermore, a Google
search performed later the day Mr. Cook filed his Errata that
made these claims contained a link, on the first page, to a
website that stated he was on recall status through the end of
the year. 	Furthermore, it is ridiculous to assume that the
Federal Judiciary does not have mechanisms in place to ensure
that orders are signed by authentic judges.
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take any further action, in effect giving Mr. Cook one last
chance to keep his word and honor his commitments. 	Should Mr.
Cook not keep his word and honor his commitments, the findings
and conclusions in this memorandum opinion may serve as the basis
for immediately taking the actions identified above, or other
action, to prevent his continued manifest abuse of the system.
For the foregoing reasons, then, the Court will enter an
order denying with prejudice Debtor Daniel W. Cook’s Motion to
Alter or Amend Final Decree, or Alternatively Vacate [Final
Decree], Reinstate Automatic Stay, and to Retain Jurisdiction for
All Matters Related to the Bankruptcy to Afford Constitutional
Rights Granted by Art 1, Section 8, Clause 4 of the U.S.
Constitution (doc 941) as amended and supplemented by doc 942.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date entered on docket: November 6, 2012
Copies to:
Daniel William Cook
920 Galeras Street NW
Albuquerque, NM 87120
Michelle Ostrye
Attorney for Wells Fargo
PO Box 1945
Albuquerque, NM 87103-1945
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Linda S. Bloom
Former Chapter 11 Trustee
PO Box 218
Albuquerque, NM 87103-0218
Philip J. Montoya
Former Chapter 7 Trustee
PO Box 159
Albuquerque, NM 87103
Leonard K Martinez-Metzgar
Attorney for UST
PO Box 608
Albuquerque, NM 87103-0608
Chris W Pierce
Hunt & Davis, P.C.
Attorney for Garretts
2632 Mesilla St. NE
Albuquerque, NM 87110
Catherine F Davis
Attorney for Garretts
2632 Mesilla Street NE
Albuquerque, NM 87110
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