*1 851 however, right litigate serving appellants’ to their while In the federal forum should the Penn- Burford, it claims court abstained the district courts, jurisdictional sylvania or other dismiss the rather than stayed the action reasons, adjudicate entry fail to them. The Quackenbush, Supreme complaint. prevents than a dismissal of a rather that such a course in dictum indicated Court becoming time-barred those claims proper: is lacking in jurisdiction be somehow should outright dismissal or remand Unlike preclusion Commonwealth suit, merely staying ... an order a federal estop- and collateral doctrines of res abnegation not constitute the action “does prevent re-litigation in the more pel will contrary, it is a judicial duty. theOn likely proceeds judgment. event court it. discharge of There productive wise of decision for its only postponement fruition.” best III. at -, (quoting Loui at

Id. S.Ct. accordingly affirm the order of the We will Thibodaux, v. Light Co. siana Power & district court. 1073, 29, 1070, 25, 3 L.Ed.2d U.S. S.Ct. (1959)). Thus, continued: the Court applied in which we have In those eases dam- principles to

traditional abstention actions, only permitted a

ages we withhold action until the

federal court to is, concluded; that proceedings have state COFFIN, Appellant, In re Tristram applying courts permitted federal we have damages principles in actions abstention permitted stay, we have not enter a but BANK. FEDERAL SAVINGS MALVERN altogether[.] the action

them to dismiss by the Ninth per se rule described however, is, rigid than our more Court of strictly precedents require. We have eases, equitable limited abstention the doctrine to all have extended rather court is asked to eases in which a federal discretionary relief. provide some form of Rehearing Panel Sur Petition for Moreover, by our decision as demonstrated Rehearing In Suggestion for Thibodaux, have not held that ab- we Banc Oct. completely inappli- principles are stention might damages actions. cable Burford post- court’s decision to support federal damages action adjudication of a

pone by the state courts

pending the resolution question of law. disputed

of a state (cita at -, at 1727-28 116 S.Ct.

Id. omitted). quotation marks and internal

tions think the district than abdi- entirely appropriate. Rather jurisdic- judicial duty to exercise its

cate its

tion, simply postponed the the district proceed- until the

exercise of Court reach their

ings in the Commonwealth the sensi- approach This retains

conclusion. comity

tivity for concerns of federalism abstention, pre- while

implicated Burford *2 Chester, Phillips (argued),

Mark D. West Bank, PA, Ap- Savings for Malvern Federal pellee. MANSMANN,

Before: BECKER and *, and SCHWARZER Judge. District OF THE COURT OPINION Judge. Coffin, an Tristram This is debtor, from an order of the district court affirming bankruptcy an court’s order denied styled debtor’s motion hen avoidance.” Because we appeal, we re- court lack mand directions. parcels of

Coffin was the owner of three property real on which Malvern Federal Sav- ings mortgages Bank loans it held to secure had made to Coffin. When Coffin fell arrears, the Bank foreclosed on one of the voluntary mortgages. Coffin Chap- in the court under Bankruptcy ter 13 of the Code. The Bank proof filed a of claim which set forth the mortgages. arrearages on the three Coffin then filed an Amended 13 Plan provided arrearages. which for some of the Bank, objection from the the bank- Without 19, 1993, ruptcy court on October confirmed the Plan. later, 23, 1994, months on

Nine June granting Bank moved “for an Order stay by 11 provided from the automatic Section 362 in order that said creditor may pursue its state foreclosure remedies to against property its lien real enforce debtor_” 1, 1994, September On follow- (1) hearing, ing a the court directed Coffin to payments make Bank in addition to (2) Plan; directed those provide Coffin to file an amended Plan to claim; adequately for the Bank’s secured (3) ordered the automatic to remain in place pending hearing further on the motion. motion, opposition to the Bank’s Zion, Jeffrey (argued), S. Wilson Benson judica- then filed his motion to dismiss as res PA, Associates, Rosemont, Benson Zion and ta the Bank’s motion for relief from the Coffin, Appellant. Following hearing automatic held on for Tristam Schwarzer, California, sitting by designation. William W. Senior United Honorable Judge for the Northern District of States District firmly grounded on 1, 1994, is- is nonetheless December bankrupt- justiciability ripeness. order, denying the opinion and sued cy the Bank’s lien was from automatic for relief Bank’s motion —that discharged that at the end of the motion to dismiss granting it would be free to exercise its state law case The court found that extent. *3 mortgage an advi- remedies under its —was by the Debtor’s Con- is bound [the Bank] denying opinion. Its order to the distribu- Plan with firmed “cryptic” motion for reconsideration decided provided thereunder and there- tion to it controversy parties: no actual between the appropriate, from is not fore relief had not moved for an order of lien Plan. being there no default (it could have avoidance is doubtful he (Op.7.) 522(f)); event, any § done so see U.S.C. The court then added: of lien survived was the issue whether the However, that [the Bank’s] we further find adjudication; not before the court for Gay Property is not lien on the Street “finding” it made did not determine the proceeding discharged by in a whether the Bank would succeed subse- lifting the at the upon of quent action in state court. If sooner, [the or conclusion of this case survived, the the lien it survived reason of law to exercise its state will be free Bank] prior proceedings, including the confirmed mortgage applica- under its remedies Plan, “finding.” of not because the (Ibid.) ble law. go Were the Bank to to state court to fore- mortgage, right to do so would close on its its appeal from the order Bank did not light that court in have to be determined denying relief from the automatic Cof- interpretation of of the terms of the Con- its fin, however, although prevailing party the Plan, of the firmed as well as the terms (the having granted his on the motion and, course, mortgage, applicable state law of having entered no or- dismissal motion and findings put of fact. To it differ- that court’s him), styled as filed a motion der adverse ently, a had the lien avoidance.” The survive, “finding” that the Bank’s lien did not court, “framed in a describing this motion as proceeding in the foreclosure the state court suggests cryptic manner since it somewhat ordering clearly precluded not was the that a motion for lien avoidance foreclosure, if law the lien applicable a subject that are at the heart of the motions enforceable; finding, not remained such interpret- request for reconsideration” decision, necessary would be being to the “challeng[mg] as this Court’s ed the motion give to res mere dictum and not rise ... the Bank’s liens conclusion estoppel. or collateral discharge_” survive the consistent oldest and most n.l) “The motion was denied. Coffin (Op.l. justiciability is law of thread the federal which, appealed district court advisory give that federal courts will ... stating [to] “the issue in this Miller, Cooper, Feder Wright, opinions.” 13 certain liens survive whether concern[] 3529.1, Procedure, p. § al Practice bankruptcy proceeding,” (Op.l.) affirmed. ed.1984). (2d ques the have addressed necessary present pur It is not controversy justiciable exists— tion when a bankruptcy court’s rea poses to examine the the ripeness the rubric of although under —in “finding” that soning that led to its declaratory Al relief. context of suits dis mortgage had not been Bank’s lien invoke the declar though did not Chapter 13 Plan. charged the confirmed statute, § atory 28 U.S.C. question that “find The threshold is whether posture is some in its case before us and, turn, denying recon ing,” the order seeking analogous one a declaration what court’s order af sideration Inc. Step-Saver Systems, Data rights. it, firming appealable orders. constitute (3rd Cir. Technology, 912 F.2d 643 Wyse 158(a)(1),1291, 1292(a). 1990), that its plaintiff sought a declaration any liability that responsible for analysis suppliers us outside of con- takes While as a result to its customers it jurisprudence, appealable ventional Accordingly, customers’ suits. The district we remand the matter pending of the and this court court dismissed direct it to it to the district court and remand It defined certain basic affirmed. That court should enter guiding determination whether actual vacating opinions an order so much of its exists, controversy important most “[t]he purports to find that the Bank’s lien sur- adversity of the interest ... are the [which] vived. judi- parties, of the of the the conclusiveness SLOVITER, Judge, Present: Chief help, practical or utili- cial BECKER, STAPLETON, MANSMANN, Here, Id. at 647. ty judgment.” of that GREENBERG, SCIRICA, COWEN, adversity while there is no NYGAARD, ALITO, ROTH, LEWIS, parties, conclusiveness of the interest of the McKEE, any utility judicial judgment and of that *4 Judge.* lacking. totally The determi- nation of whether the Bank’s lien is enforce- eventually able will have to be made REHEAR- SUR PETITION FOR PANEL proceedings in and another court foreclosure RE- ING WITH SUGGESTION FOR bankruptcy court’s advice will have no IN HEARING BANC Id. at 649 n. 9. effect. See 7,Oct. may bank- That the Bank have asked the petition rehearing by appel-

ruptcy interpret the Plan with re- court to having judges lant been submitted to the who spect of the survival of its hen, opposing participated that advanced in the decision of this positions, does not alter the conclusion judges to all the other circuit in available in what the court said was an service, judge and no active who concurred advisory opinion. That seems clear under having rehearing, the decision asked for Step-Saver, for a where asked decla- majority judges circuit of the circuit non-liability ration of but the regular having active service not voted for ripe controversy. dismissed for lack of a banc, rehearing the court in Nor does it matter rehearing is DENIED. imminent since the fact remains that advi- judicial opinion that will not have a effect on the outcome of the future fore- proceedings.

closure jurisdic parties urge Both us to take REICH, Secretary Labor, Robert B. help tion to resolve matters them Department on, move cannot be conferred Labor, Petitioner, sympathetic consent. While we are plight, making, it is of their own result ing parties’ Occupa- from the lack of care and atten D.M. SABIA COMPANY given proceedings, tion in Safety tional and Health Review cluding the formulation of the Plan. The Commission, Respondents. present problem could and should have been anticipated by appropriate provision in the jurisdic Plan. The court retains United States Court of case, however, proper tion of the and it is the post-confirmation problems forum to resolve appropriate proceedings. See Presumably the court will grant discharge, now close

thereby continuing free the Bank to test the

validity by bringing of its lien a foreclosure

action. panel rehearing only. As to