Zurn, Mary A. v. Botti, Aldo E. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2930
In the Matter of:
Mary Anne Zurn,
Debtor-Appellant
Aldo E. Botti, et al.,
Creditors-Appellees
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4356--John W. Darrah, Judge.
Argued February 11, 2002--Decided May 15, 2002
Before Easterbrook, Ripple, and Diane P.
Wood, Circuit Judges.
Easterbrook, Circuit Judge. "Only a
belief that bankruptcy is forever could
produce a case such as this." That
sentiment, which opens the opinion in
Pettibone Corp. v. Easley, 935 F.2d 120,
121 (7th Cir. 1991), is equally
applicable to this long-running dispute.
Aldo Botti and his former client, Mary
Anne Zurn, have spent the last decade
debating the quality of legal work Botti
provided to Zurn during divorce
litigation, and torts that Zurn believes
Botti to have committed during the course
of his representation. Zurn’s suit in
Illinois was met by a request for
sanctions; Botti also argued in
acountersuit that Zurn still owed money
for legal fees. When the dust settled in
the state’s trial court, Botti emerged
with a judgment of about $180,000. To
avoid paying, Zurn filed a federal
bankruptcy proceeding. It soon became
clear that the bankruptcy court would not
allow Zurn to retain the stakes without
accruing interest during an appeal in
state court, nor would the bankruptcy
court take over the appellate function
and decide the matter itself. After the
bankruptcy court formally decided to
abstain from any role in the ongoing
state litigation, Zurn filed a plan
promising full payment to all creditors,
including Botti. She paid the sums he
claimed as a creditor, her plan was
approved, and the federal proceedings
were dismissed in April 1996.
Meanwhile the litigation continued in
Illinois. In March 1998 the state’s
appellate court reversed the judgments to
the extent that they had required Zurn to
pay Botti. With respect to Zurn’s claims
against Botti, the appellate court
decided three in Botti’s favor but held
that Zurn’s claim for battery had been
dismissed improperly. At this point Botti
should have returned the money Zurn had
paid to satisfy the judgments. Buzz
Barton & Associates, Inc. v. Giannone,
108 Ill. 2d 373, 381-82, 483 N.E.2d 1271,
1275 (1985). See also Richardson v.
Penfold, 900 F.2d 116, 118 (7th Cir.
1990); Palmer v. Chicago, 806 F.2d 1316,
1319 (7th Cir. 1986). Yet he did not do
so, though it is hard to see how he could
be entitled to keep the money after the
reversal. The appellate decision left
each side with unresolved legal claims
against the other, but neither took
timely steps to resume the litigation in
the trial court. Illinois requires a
litigant that wants to continue the
proceedings after an appeal to act within
a reasonable period after the appellate
mandate (which issued in November 1998).
See Ill. S. Ct. R. 369(c); Illinois v.
Eidel, 319 Ill. App. 496, 745 N.E.2d 736
(2d Dist. 2001). Botti has never
attempted to reinstate his suit seeking
legal fees. Apparently Botti believes
that, because he holds the money paid
under the reversed judgment, it is no
longer necessary to establish a legal
entitlement to these funds.
For her part, Zurn allowed 13 months to
pass and then moved to reopen, not the
state litigation, but the bankruptcy
proceeding. She asked the bankruptcy
judge to order Botti to return the money
that had been paid under the plan. A few
weeks later (in January 2000) she tried
to reinstate the litigation in the
state’s trial court. Both the bankruptcy
judge and the state judge said no. The
state judge concluded that Zurn’s request
was untimely, and after initially
granting some of the relief Zurn had
requested the bankruptcy judge changed
his mind. The details of events in the
bankruptcy court do not matter.
Ultimately, Bankruptcy Judge Wedoff
concluded that Zurn had not supplied
adequate cause to reopen the proceedings
under 11 U.S.C. sec.350(b), that it was
not possible to "enforce the plan" (as
Zurn had requested in a separate motion)
because the plan had been carried out to
the letter, and that state rather than
federal tribunals offer the right forums
for final resolution of the disputes
between Zurn and Botti.
Zurn did not appeal within the state
system, but she did ask a district judge
to review the bankruptcy judge’s
decision. The district judge agreed with
the bankruptcy judge’s bottom line but
gave different reasons. He concluded,
first, that reopening is barred by the
Rooker-Feldman doctrine, see Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923);
District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983), and,
second, that Zurn has no remaining state
remedies and thus is not entitled to
restitution. Bankruptcy courts implement
entitlements under state law, see Butner
v. United States, 440 U.S. 48 (1979), and
if as a matter of Illinois law Zurn has
lost her right to restitution then there
is no claim to vindicate in bankruptcy.
Dismayed by this turn of events--the
bankruptcy judge sent her claim to state
court, while the district judge wiped it
out--Zurn has appealed to us.
The district court characterized its
decision as one affirming the bankruptcy
judge’s decision to abstain rather than
interfere with state litigation. If that
is the right understanding, then 28
U.S.C. sec.1334(d) blocks appellate
review. But the district judge’s use of
language was imprecise. The bankruptcy
judge discussed abstention (particularly
the consequences of the 1995 decision to
abstain), but his judgment in these
proceedings was not one of
abstention.Instead the bankruptcy judge
denied Zurn’s motion to enforce the plan,
a decision that is not abstention of any
flavor. Indeed, it would have been
possible to abstain in 2000 only after
first reopening the bankruptcy. Judge
Wedoff rescinded his initial act of
reopening; the district court affirmed.
That is incompatible with abstention.
Moreover, by the time this dispute
returned to the district judge, all
proceedings in state court were over.
There was nothing to abstain in favor of-
-nor was there any pending bankruptcy
case that would proceed while the state
courts handled the matters from which the
federal court had abstained. The
questions on the table in 2000 concerned
the consequences of decisions the state
courts already had rendered. Because the
federal court was not asked in 2000 to
interfere with or take over a pending
state suit in order to value a claim in
bankruptcy, it also could not "abstain"
within the meaning of sec.1334(c). What
the court actually did was decline to
reopen a bankruptcy proceeding under
sec.350(b) and hold that the plan did not
need "enforcement" because no one had
departed from its provisions. Because
that decision ended the litigation in the
district court, we have jurisdiction
under 28 U.S.C. sec.158(d).
Neither of the district judge’s
substantive reasons is correct. The
Rooker-Feldman doctrine instantiates the
principle that only the Supreme Court of
the United States may modify a judgment
entered by a state court in civil litiga
tion. Zurn did not ask the federal court
to review or alter the state courts’
decisions; she argued, instead, that the
appellate decision has a particular legal
consequence (that Botti must make
restitution). That may be right or wrong,
but deciding whether it is right does not
transgress Rooker-Feldman. Federal law
does not undercut efforts to enforce
state judgments. Nor was it right to say
that Zurn’s delay in attempting to
reinstate her suit obliterated her
opportunity to obtain restitution.
Illinois entertains independent actions
for restitution, when a judgment that has
been satisfied later is reversed. See
Liberty Mutual Insurance Co. v. Zambole,
141 Ill. App. 3d 803, 491 N.E.2d 132 (2d
Dist. 1986). Whether such an independent
suit would be appropriate in light of
other circumstances that are not in the
record (such as whether Zurn has made a
timely demand of Botti for restitution)
is something on which we offer no
comment. It is enough to say that Zurn
retains at least a potential for
restitution under state law.
Although neither of the district judge’s
reasons is convincing, its judgment
nonetheless is correct, for the reason
given by the bankruptcy judge. Zurn’s
bankruptcy ended in 1996. The plan of
reorganization has been fully
implemented; there is nothing to
"enforce" and no reason to reopen and
alter the plan. Zurn’s belief that anyone
who has been a debtor in bankruptcy has
eternal access to federal court for all
disputes related in some way to the debts
handled in the bankruptcy proceeding is
incompatible not only with Pettibone but
with many other cases, none of which Zurn
discusses. E.g., Maytag Corp. v. Navistar
International Transportation Corp., 219
F.3d 587, 590 (7th Cir. 2000); In re
Xonics, Inc., 813 F.2d 127, 130-32 (7th
Cir. 1987); In re Chicago, Rock Island &
Pacific R.R., 794 F.2d 1182, 1186-87 (7th
Cir. 1986). Suppose that a Chapter 13
plan called for a debtor to pay in full
for a car, and thus retain title, and
that after the confirmation of the plan a
warranty dispute occurred. Would the
bankruptcy judge be called on to
determine whether the car’s transmission
had been repaired to the debtor’s
satisfaction? Certainly not; the federal
role ended with the decision that the car
would be paid for and retained rather
than abandoned. Other disputes concerning
the car belong to state tribunals. So too
with leaseholds, we held in Chicago, Rock
Island & Pacific. Zurn conceded at oral
argument that disputes of this kind could
not be brought back to federal court but
argues that her dispute differs because
the state litigation was ongoing at the
time of the federal bankruptcy. But that
was equally true in Pettibone, where the
bankruptcy court abstained and left
resolution of the parties’ dispute to
state tribunals. After the bankruptcy
ended, the parties could not agree on the
effect in the state cases of the
automatic stay in bankruptcy; even though
this dispute (unlike the Zurn-Botti
imbroglio) was related to federal law, we
held in Pettibone that jurisdiction once
relinquished stays relinquished. When a
bankruptcy court abstains and permits
state courts to handle pending
litigation, the parties must thereafter
look to the state courts to handle their
complete dispute and may not drag
selected issues back to the bankruptcy
forum years later.
Section 350(b) allows a district judge
to reopen a bankruptcy proceeding, but
use of that power is reserved for matters
such as the correction of errors (see In
re Shondel, 950 F.2d 1301 (7th Cir.
1991)), amendments necessitated by
unanticipated events that frustrate a
plan’s implementation, and the need to
enforce the plan and discharge (see In re
Bianucci, 4 F.3d 526 (7th Cir. 1993)).
Reversal of a civil judgment that created
a claim against the estate does not
warrant reopening; reversal affects the
amount of a given claim, not the plan’s
provisions for satisfying claims. Zurn’s
plan promised payment in full; and if
events mean that "in full" is less than
the debtor anticipated, still this does
not call the plan itself into question.
It just provides an occasion for the use
of whatever remedies Zurn has under state
law.
It is unfortunate that Botti’s obduracy
has prolonged this dispute. Lawyers
should comply with their legal duties--
including the duty to make restitution
identified in Buzz Barton & Associates--
rather than compel former clients to
resort to still more litigation to
vindicate their rights. Behavior such as
Botti’s brings the legal profession into
disrepute. See also Dale M. v. Board of
Education, 282 F.3d 984 (7th Cir. 2002).
If litigation must continue, however, the
right forum is state court, just as the
bankruptcy judge concluded.
Affirmed
RIPPLE, Circuit Judge, dissenting. The
majority rests its decision on a ground
that never was raised by the parties in
this court or in the earlier stages of
the litigation. Indeed, Mr. Botti
conceded in his brief to this court that
the bankruptcy court had the authority to
reopen this case and properly had done
so. Moreover, the majority’s
characterization of the bankruptcy court
proceedings cannot be supported by the
record. In my view, the appropriate
course is to take the bankruptcy court at
its word; it said that it was abstaining
from exercising jurisdiction over the
state cases just as it had done in 1996,
leaving Ms. Zurn and Mr. Botti free to
pursue their state remedies. Thus, the
bankruptcy court abstained under 28
U.S.C. sec. 1334(c)(1), and we lack
appellate jurisdiction to review such a
decision under sec. 1334(d). I therefore
would dismiss this appeal for lack of
appellate jurisdiction.
1.
The majority writes that "[t]he details
of events in the bankruptcy court do not
matter." Maj. Op. at 3. I respectfully
disagree. Indeed, careful attention to
the course of those proceedings reveals
that the majority’s characterization of
them cannot be supported by the record.
On December 16, 1999, Ms. Zurn filed a
motion to reopen her bankruptcy case
under 11 U.S.C. sec. 350(b), which
provides that "[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." 11 U.S.C. sec. 350(b). On January
10, 2000, Mr. Botti filed a memorandum in
opposition to Ms. Zurn’s motion to
reopen. In that memorandum, Mr. Botti
argued that the common-law doctrine of
laches barred reopening because of Ms.
Zurn’s delay and the prejudice such a
delay would cause Mr. Botti. On January
18, 2000, the bankruptcy court
nevertheless granted Ms. Zurn’s motion
and reopened the bankruptcy. In doing so,
the bankruptcy court considered the terms
of sec. 350, as well as our decision in
In re Bianucci, 4 F.3d 526 (7th Cir.
1993). It held that "[i]n this case I
found nothing that indicates that there’s
prejudice to the Botti firm by any delay
in actions involved in this case."
January 11, 2000 Bankr. Tr. at 3. The
court further stated that "the merits are
a completely separate issue from the
question of whether the case ought to be
reopened. In the absence of the showing
of any prejudice to the Botti firm . . .
the case ought to be reopened pursuant to
the authorities that were cited in the
Bianucci case." Id. at 4-5. Thus ended
the litigation over the question of
reopening. Mr. Botti did not ask the
bankruptcy court to reconsider its
decision.
The parties then turned their attention
to the merits of Ms. Zurn’s request that
the bankruptcy court order Mr. Botti to
reimburse Ms. Zurn the funds she had paid
earlier in compliance with her bankruptcy
plan. Ms. Zurn characterized her motion
for repayment as a motion to enforce the
original Chapter 11 bankruptcy plan
confirmed in 1996. Under Ms. Zurn’s
reading of the plan, the bankruptcy court
had the authority to order Mr. Botti to
repay Ms. Zurn because the plan had
contemplated continued state proceedings
subsequent to the plan’s confirmation. In
reply, Mr. Botti filed a motion for
abstention and remand. He urged the
bankruptcy court to deny Ms. Zurn’s
motion for enforcement of the plan.
After the parties submitted further
briefing on the merits, the bankruptcy
court ordered Mr. Botti to repay Ms. Zurn
for the funds she had paid to satisfy the
state court judgment in the so-called
"Zurn" case, in which Ms. Zurn, as
plaintiff, alleged that Mr. Botti and his
law firm had mishandled her divorce
action. A default judgment dismissing the
claims for failure to state a cause of
action and imposing sanctions and
attorneys’ fees on Ms. Zurn had been
entered by the trial court. However, that
judgment subsequently was reversed by the
Illinois Appellate Court, and Ms. Zurn
therefore had been relieved of the
obligation to pay that judgment.
By contrast, the bankruptcy court denied
Ms. Zurn’s motion for reimbursement with
respect to the so-called "Botti" case. In
this action, Mr. Botti and his law firm,
as plaintiffs, had sought fees for
representing Ms. Zurn in the divorce
action. A default judgment had been
entered in favor of Mr. Botti, awarding
him the requested attorneys’ fees.
However, this judgment had been reversed
on appeal.
The bankruptcy court had reached
different results in the two requests for
reimbursement because it determined the
state appellate decision to be final in
the Zurn case but non-final in the Botti
case. As to the Zurn case, the bankruptcy
court explained that the Illinois
Appellate Court had determined that Ms.
Zurn had stated a cause of action;
therefore Botti’s claim for sanctions
could not stand. Because the Chapter 11
payment was only provisional as to this
claim, reasoned the bankruptcy court, Ms.
Zurn was entitled to a return of the
amount that she had paid to Botti on this
claim. Contrary to this characterization,
in the Botti case, Mr. Botti’s claim for
attorneys’ fees was still alive, and he
ultimately might prevail and be entitled
to the funds Ms. Zurn had paid through
the Chapter 11 plan. In sum, the
bankruptcy court granted in part and
denied in part Ms. Zurn’s motion to
enforce the plan and to order repayment
of those funds.
After the bankruptcy court’s oral ruling
on March 16 and while that court was
considering whether and at what rate to
impose interest on the funds at issue,
the DuPage County Court denied Ms. Zurn’s
motion to reinstate the Zurn case in that
court. Mr. Botti brought a motion to
amend the earlier order in light of this
new development and what he submitted
were manifest errors of law in the
bankruptcy court’s characterization of
the Illinois Appellate Court’s decision
reversing the Zurn case. Ms. Zurn also
brought a motion to reconsider with
respect to the Botti case. As the
bankruptcy court characterized the
situation, "the legal issues raised by
both parties are essentially of the same
nature[:] that the court has misperceived
the law that’s applicable here and that
to reconsider the order that’s previously
been entered." June 8, 2000 Bankr. Tr. at
2. Specifically, Mr. Botti maintained
that the bankruptcy court’s order
incorrectly perceived the nature of
Illinois Supreme Court Rule 137, which is
analogous to Federal Rule of Civil
Procedure 11, the provision under which
Ms. Zurn had been sanctioned in the Zurn
case. In its order, the bankruptcy court
had reasoned that, because Ms. Zurn could
no longer be sanctioned under Rule 137,
the Appellate Court’s ruling on that
issue was final and the bankruptcy court
could order Mr. Botti to repay Ms. Zurn.
Upon reconsideration, the bankruptcy
court agreed with Mr. Botti that its
earlier ruling was incorrect. "I have re
viewed again the plan of reorganization
of this case. . . . It does not say that
there is any right to a refund in the
event of a discharged judgment. It simply
leaves the debtor in the position of
pursuing her rights in state court." June
8, 2000 Bankr. Tr. at 4. The court
continued: "I made a decision to abstain,
and that determination is reflected in
the plan of reorganization that was
actually confirmed." Id. at 6. "And if we
are talking about enforcing that plan of
reorganization, I don’t think that I can
change my mind as to the appropriateness
of abstention. All I can do in enforcing
the plan is to put its terms into effect.
And I don’t think that those terms would
allow me to intrude into the state court
proceedings." Id. at 6. At no time did
the bankruptcy court suggest that its
initial decision to reopen the case
pursuant to sec. 350 was incorrect or
that it had reconsidered that decision.
Nor did either Ms. Zurn or Mr. Botti ask
the court to reconsider. At issue on June
8 was Mr. Botti’s motion asking the court
to amend its earlier ruling in favor of
Ms. Zurn on her motion to "enforce the
plan," by which she meant ordering Mr.
Botti to pay restitution. As the
bankruptcy court had made clear in its
decision to reopen the bankruptcy, the
issue on June 8 was the "merits"
question, distinct from the initial
decision to reopen. In its June 8, 2000,
ruling, the court decided to "grant Mr.
Botti’s motion [and] . . . deny
enforcement of the plan." See id. at 7.
In short, Ms. Zurn’s motion to enforce
the plan was the "merits" question,
distinct from the "reopening" question.
The bankruptcy court did not revisit its
decision to reopen this bankruptcy.
2.
Mr. Botti also expressly waived any
objection to the bankruptcy court’s
decision to reopen this case. In his
brief to this court, Mr. Botti
acknowledged that the bankruptcy court
had "accepted jurisdiction by reopening
the bankruptcy as it clearly had the
authority to do under 11 U.S.C. sec.
350." Appellee’s Br. at 12. Nowhere in
his brief to this court does Mr. Botti
suggest that he is challenging the
bankruptcy court’s decision to reopen Ms.
Zurn’s bankruptcy proceeding. When Mr.
Botti opposed Ms. Zurn’s motion to reopen
in the bankruptcy court, he did so on the
ground of the equitable doctrine of
laches. He did not appeal the bankruptcy
court’s adverse ruling./1
3.
The majority states that "because the
court had not been asked to interfere
with or take over a pending suit, it also
could not ’abstain.’" Maj. Op. at 4.
Under the permissive abstention rule of
sec. 1334(c)(1), however, a court may
abstain "in the interest of justice, or
in the interest of comity with State
courts or respect for State law." 11
U.S.C. sec. 1334(c)(1). Nowhere does the
statute require that a state proceeding
must be commenced before a bankruptcy
court may invoke this provision. In
contrast, sec. 1334(c)(2) requires a
district court to abstain from hearing
state law causes of action "related to a
case under title 11 but not arising under
title 11 or arising in a case under title
11 . . . if an action is commenced, and
can be timely adjudicated, in a State
forum of appropriate jurisdiction." 28
U.S.C. sec. 1334(c)(2). The presence of
such a requirement in (c)(2) and its
absence in (c)(1) indicates that a
bankruptcy court may abstain under sec.
1334(c)(1) without pending state
proceedings./2 The bankruptcy court here
abstained in favor of whatever state
remedies Ms. Zurn was entitled to seek.
The bankruptcy court’s decision was a
decision to abstain from exercising
jurisdiction over the Zurn and Botti
cases. The bankruptcy court had abstained
in 1995 because, inter alia, the two
cases were dominated by uncertain
questions of state law. It abstained this
time because the original plan did not
permit Ms. Zurn to return to bankruptcy
court to vindicate only a portion of her
state law rights; to enforce the plan was
to persist in abstaining./3
4.
The bankruptcy court’s record cannot be
read so as to conclude that the
bankruptcy court’s decision on June 8,
2000, reversed its original decision to
reopen the case. The parties litigated
the reopening issue and then proceeded to
the merits. We are asked to review the
bankruptcy court’s decision on the
merits. That decision was to abstain from
exercising jurisdiction over the state
cases and we are barred from reviewing
such decisions by 28 U.S.C. sec. 1334(d).
There is no reason to reach out and
decide unnecessarily an issue not
addressed by all of the parties and other
courts in this case. I would dismiss this
appeal for lack of appellate jurisdiction
and, therefore, I respectfully dissent.
FOOTNOTES
/1 The issue that the majority chooses to decide
without the assistance of briefs or the argument
of counsel is a difficult one whose resolution is
not clear-cut. Although the majority chides the
parties for not discussing Pettibone Corp. v.
Easley, 935 F.2d 120 (7th Cir. 1991), the majori-
ty fails to reckon sufficiently with the reason-
ing of In re Bianucci, 4 F.3d 526 (7th Cir. 1993)
and In re Shondel, 950 F.2d 1301 (7th Cir. 1991),
which both take a more permissive approach to
reopening under sec.350(b) than that taken by the
majority here. In re Shondel held that the bank-
ruptcy court acted properly in reopening the
bankruptcy case to modify a permanent injunction
issued as part of the original plan. See In re
Shondel, 950 F.2d at 1304. In re Bianucci held
that the bankruptcy court properly declined to
reopen a bankruptcy case two years after it was
closed to determine the status of a lien, but
made clear that the decision whether to reopen a
bankruptcy decree rests within the sound discre-
tion of the bankruptcy court. See In re Bianucci,
4 F.3d at 527-28. Denial of the motion to reopen
in In re Bianucci was proper because the nonmov-
ing party would be prejudiced by the act of
reopening itself. See id. at 528. Indeed, both
Bianucci and Shondel emphasized that the decision
whether to reopen a bankruptcy is left to the
broad discretion of the bankruptcy court. See In
re Bianucci, 4 F.3d at 528; In re Shondel, 950
F.2d at 1304; see also 3 Lawrence P. King, et
al., Collier on Bankruptcy, para. 350.03 (15th
ed. 2002). Given the importance of the question,
a case in which the issue has neither been raised
nor briefed is an inappropriate vehicle for a
sweeping assertion that "[r]eversal of a civil
judgment that created a claim against the estate
does not warrant reopening." Maj. Op. at 6. It
would be advisable to decide that issue in case
in which it is raised and we have the benefit of
briefing and oral argument from the parties.
/2 There are other abstention doctrines that do not
require pending state proceedings for their
application. For example, "[f]ederal court ab-
stention is required when state law is uncertain
and a state court’s clarification of state law
might make a federal court’s constitutional
ruling unnecessary." Erwin Chemerinsky, Federal
Jurisdiction, at 737 (3d ed. 1999); see also
Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
716-23 (1996) (describing the various formula-
tions of the abstention doctrine). Pullman ab-
stention thus applies even in the absence of a
pending state action; it applies in anticipation
of state court action. So too in this case. The
bankruptcy court abstained in anticipation of Ms.
Zurn’s bringing a future claim in state court
seeking restitution.
/3 The majority contends that "Judge Wedoff rescind-
ed his initial act of reopening . . . . That is
incompatible with abstention." Maj. Op. at 4. It
further states that the judgment of the bankrupt-
cy court was to deny "Zurn’s motion to enforce
the plan, a decision that is not abstention of
any flavor." Maj. Op. at 4. In the majority’s
view, then, the bankruptcy court’s judgment
simultaneously denied Ms. Zurn’s motion to en-
force the plan and revoked the court’s decision
to reopen. In my view, the best way to view the
bankruptcy court’s judgment is that it denied Ms.
Zurn’s motion to enforce the plan because it was
abstaining in conformity with the dictates of the
1996 plan. The bankruptcy court denied Ms. Zurn’s
motion not because it thought that she did not
deserve restitution but because it believed that
it was compelled to abstain because of the 1996
plan. That determination is a decision to abstain
within the meaning of 28 U.S.C. sec. 1334(c).
The bankruptcy court made what I believe to be
a sound distinction between the question whether
to reopen the bankruptcy "for cause" under sec.
350(b) and the merits question, whether Ms. Zurn
was entitled to the relief she sought. The court
was clear that what was at issue on June 8 was
the "merits" question, whether Mr. Botti was
violating the terms of the plan by refusing to
return the funds to Ms. Zurn. The majority’s view
seems to be that the merits question and the
reopening question are one in the same, that in
order for a bankruptcy court to reopen a bank-
ruptcy, the party seeking such action must demon-
strate that he is also entitled to relief. This
is an unwarranted narrowing of a bankruptcy
court’s broad discretion to reopen a bankruptcy
under sec. 350(b).