The Firm argues that Heller “intentionally and knowingly filed the withdrawal of its prior objection, thereby waiving its right to oppose the surcharge request.” However, as this Court pointed out to the Firm’s counsel at closing argument on December 13, 1995, withdrawal of a pleading is normally done without prejudice. Heller did not indicate to the Firm or the Court that the withdrawal was with prejudice or that Heller would no longer pursue the surcharge issue. The Court did not enter any order stating that the withdrawal was with prejudice. In fact, such an order would probably be improper in light of the Ninth Circuit decision of Resorts Int'l, Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394 (9th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 2497, 135 L.Ed.2d 189 (1996) (<HOLDING>). In this case, Heller presented credible
holding that a corporate chapter 7 debt ors malpractice claim against its bankruptcy attorney was related to its bankruptcy case holding that facts as they existed on the date of the original bankruptcy petition not on the date of conversion from chapter 13 to chapter 7 bankruptcy applied holding that judge abused discretion in ordering that claim be withdrawn with prejudice when creditor was not prepared to go to trial on the scheduled date and time and told bankruptcy judge that it wished to withdraw its claim pursue litigation in another forum and potentially reassert its claim in the bankruptcy proceedings at a later date depending on the outcome of related litigation holding that a claim was withdrawn and waived when the party stated it was dropping the claim in order to avoid sanctions for failing to answer interrogatories related to the claim holding that the bankruptcy court lacked subject matter jurisdiction over counterclaims asserted by the bankruptcy estate against a creditor where the claim is a state law action independent of the federal bankruptcy law and not necessarily resolvable by a ruling on the creditors proof of claim in the bankruptcy emphasis added