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Edwards v. Franchini5/26/1998
icate for us to consider taking such action.
{14} This court is a court of review which does not review questions which were not before the trial court. See . A party may file a motion to remand to the district court to permit the district court to entertain a post- judgment motion which the trial court "could not have considered . . . having lost jurisdiction by reason of the appeal." Terrel v. Duke City Lumber Co., 86 N.M. 405, 436, 524 P.2d 1021, 1052 (Ct. App. 1974), rev'd on other grounds, . We will grant such a request: (1) "only upon a showing of exceptional circumstances;" and (2) only "in those cases where it is reasonably apparent that the rial court would be disposed to grant such a motion." Id.
{15} We do not believe that exceptional circumstances justifying remand exist in this case because we do not agree with Plaintiffs' contention that the bankruptcy court's April 28, 1997 order restored to them all rights to pursue their claims against Defendants as if the bankruptcy proceedings had not occurred. Under their theory, Plaintiffs would have had all rights of action continuously from the date their causes of action originated. Plaintiffs argue: "There was no bankruptcy, there was no discharge, there was no trustee; therefore, there was no Standing issue." Although we agree with Plaintiffs that the bankruptcy court's order returns the rights of action to Plaintiffs, we believe that it does so effective as of the date of the order, not retroactively.
{16} The Bankruptcy Code provides that when the bankruptcy court dismisses a case, unless the court orders otherwise, the dismissal "revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case." 11 U.S.C. 349(b)(3). By virtue of the Bankruptcy Code, the April 28, 1997 order revested Plaintiffs' claims against Defendants in Plaintiffs. The language of the Bankruptcy Code does not, however, indicate that Plaintiffs held the claims as if they had not filed a bankruptcy petition. Instead, the express language of the Bankruptcy Code indicates to the contrary. The language of Section 349(b)(3) states that the property "revests" in any entity in which it "was vested." The import of the words which Congress chose is that there exists a period of time in which the property was not vested in the entity in which it "revests." Indeed, that period of time is the pendency of the bankruptcy proceeding. See (plain language is primary indicator of intent).
{17} In addition, the language of the April 28, 1997 order expressly demonstrates that it is not to have nunc pro tunc effect. The bankruptcy court provides in its order that:
"2. All previous, non-appealable orders of this Court shall remain in full force and effect despite the terms of this order. 4. All actions of the Trustee in this case which were approved by this Court prior to this order, including but not limited to administration of assets or disbursements to creditors or parties in interest, are hereby ratified and not affected by dismissal of this case."
By recognizing and giving effect to its prior actions in the case before it, the bankruptcy court did not intend to dismiss the case in such a manner that it became a nullity. Rather, the order reflects the opposite--that the bankruptcy court intended that its actions and the actions of the trustee during the pendency of the case had full effect despite the dismissal of the case.
{18} Plaintiffs rely on In re Sports & Science Indus., Inc., 95 B.R. 745 (Bankr. C.D. Cal. 1989), and the legislative history of the Bankruptcy Code for the proposition that "the purpose of 349(b) is to `undo the bankruptc
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