Cook v. Wells Fargo Bank, N.A. et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
DANIEL WILLIAM COOK and
YOLANDA T. COOK,
Debtor(s). Case No. 7-04-17704 SA
DANIEL WILLIAM COOK,
Plaintiff(s),
v. Adversary No. 11-1074 S
WELLS FARGO BANK, N.A.,
Successor to Wells Fargo Bank New Mexico, N.A.,
SCOTT GARRETT, Individually,
THE SCOTT GARRETT AND PAMELA JANE GARRETT TRUST
Dated June 14, 1999,and
State of New Mexico, Second Judicial District
Alan M Malott, Hon., or assigns,
in their official capacity in
State Court Case #CV-2003-08008,
Defendant(s).
MEMORANDUM OPINION IN SUPPORT OF
ORDER DENYING INJUNCTIVE RELIEF
Plaintiff Daniel Cook filed this adversary proceeding on
April 25, 2011 (doc 1). The adversary proceeding requests in
part that the Court issue injunctive relief of varying degrees,
starting with a temporary restraining order, to stay further
proceedings in that certain civil action pending in the Second
Judicial District Court, Bernalillo County, New Mexico, styled
and numbered Trenchless Infrastructure Technologies, Inc. a/k/a
Hydroscope Group, Inc., the Scott and Pamela Garrett Trust v.
Daniel W. And Yolanda T. Cook, Hydroscope Group, and Wells Fargo
Bank, Case No. CV-2003-0800 (“State Court Case”). For the
reasons set forth below, the Court denies the request for
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injunctive relief.1
This adversary proceeding, and particularly the request for
injunctive relief, names as defendants the State of New Mexico
and the Honorable Alan M. Malott, who is presiding over the State
Court Case, as well as Wells Fargo Bank and the Garretts and the
Garrett Trust. The complaint recites in part as follows:
State of New Mexico, Second Judicial District (the
“State”) and the Honorable Alan M. Malott in his
official capacity (“Judge Malott”), and or his assigns,
are named as defendants in this Adversary for the sole
purpose of prohibiting the State and Judge Malott or
his assigns from adjudicating any and all matters in
the State Court case, CV-2003-08008, on April 28, 2011
and thereafter that may affect Debtor’s and creditors’
interest in the Cooks Bankruptcy estate.
Id. at 2, ¶ 2 (emphasis in original). See also Count I request
for relief. Id. at 18-19. In other words, Plaintiff asserts
that the State Court Case cannot go forward because to do so
violates the automatic stay imposed by 11 U.S.C. §362 with
respect to property of the estate as well as property of the
Plaintiff.
The Complaint basically reiterates arguments and requests
for relief that have been presented to the Court in the context
of the underlying bankruptcy case as well as a number of related
adversary proceedings. The Court will not now repeat the unduly
Given the disposition of the requested relief, the Court	1
need not rule on the necessity or propriety of naming the
district court judge presiding over the State Court Case or the
State of New Mexico.
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lengthy and tangled procedural and substantive history of the
long-running disputes between Plaintiff and the parties with whom
he has been at war for the better part of a decade now.
However, the Court notes that it entered its Memorandum Opinion
(doc 884) in the chapter 7 case on April 6, 2011, disposing of
several motions that Plaintiff as debtor had filed in the
bankruptcy case , two of which addressed the same underlying	2
claim that Plaintiff asserts in this adversary proceeding: that
the other parties (and now District Judge Malott together with
the State of New Mexico) will be in violation of the automatic
stay if the parties and Judge Malott (continue to) adjudicate the
claims of the estate or of Plaintiff.
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 claim an interest,
such that any party is entitled to seek, or to continue
The Court very shortly will be entering a memorandum	2
opinion denying Plaintiff’s April 18, 2011 Motion to Reconsider
Dismissal of Sanctions Motions Against Well [sic] Fargo Bank and
Garrett et al (Doc’s 885 and 886). Doc 898.
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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).
Id. at 12-13.
The Memorandum Opinion also ruled that Plaintiff had no
standing to assert a violation of the stay on behalf of the
bankruptcy estate. Id. at 7-12.
Plaintiff also objects to the adjudication in the State
Court Case of his interests in the estate, which is to say, of
his property interests which would include any property that he
exempted from the estate. Plaintiff asserts that there can be no
adjudication with respect to his personal property until the
bankruptcy case is closed.
The Automatic Stay protects the debtors’ [sic] interest
in property until the Court enters a dismissal of the
Cooks [sic] bankruptcy case.
This Court has not entered a dismissal of the Cooks
[sic] Bankruptcy case.
Id. at 15, ¶¶79 and 80. See also id. At 16, ¶83.
Plaintiff is mistaken. Section 362(c) provides in relevant
part as follows:
(1) the stay of an act against property of the estate
under subsection (a) of this section continues
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until such property is no longer property of the
estate;
(2) the stay of any other act under subsection (a) of
this section continues until the earliest of –
(A) the time the case is closed;
(B) the time the case is dismissed; or
(C) if the case is a case under chapter 7 of this
title concerning an individual ..., the time
a discharge is granted or denied; ....
Plaintiff was granted a discharge on April 2, 2009 (doc
834). In consequence, it has been the case for at least a little
more than two years now, that parties were free from the
constraints of the automatic stay to contest with Debtor what
rights he had to the property that he claimed as exempt.
In consequence, based on the extensive record in the
underlying bankruptcy case and related adversary proceedings,
there is no basis for issuing any injunctive relief whatever. An
order will enter.
James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: April 26, 2011
COPY TO:
Daniel William Cook
920 Galeras Street NW
Albuquerque, NM 87120
Michelle Ostrye, Esq.
PO Box 1945
Albuquerque, NM 87103-1945
Chris W Pierce, Esq.
Hunt & Davis, P.C.
P.O. Box 30088
Albuquerque, NM 87190-0088
Philip J. Montoya, Esq.
Trustee
PO Box 159
Albuquerque, NM 87103
The Honorable Alan M. Malott
2nd Judicial District Court,
Division XV
PO Box 488
Albuquerque, NM 87103-0488
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