adequate remedy warranting dismissal of the bankruptcy case in order to determine the adequacy of that state court remedy this court should consider that to sally in facts that are undisputed here one that worthless remedy because not only wouldn't anybody but we couldn't sell it because of the reasons your honor just pointed out so the remedy in state court is no remedy the remedy in the bankruptcy court and the reason we filed the involuntary petition because section three sixty three a to the bankruptcy code in this court's decision of if if if we were divided in your favor then there would be another creditors remedy available under new york law the floodgates argument here your honor for a couple reasons was the number as a judge gerber pointed out the bankruptcy court decision the number of involuntary bankruptcy filing he's less than one hundred one percent now correct if we rule your favor it could go up the second your honor the homestead exemption and under new york florida the opt out provision is one hundred sixty two thousand dollars this is a unique situation because the amount possession this is a very unique set of circumstances this was litigated to judgment over a five year period and because of the homestead exemption from soundso council why aren't you want a position like many other allow under three sixty three i and j the non debtor spouse to have her rights on the property so there's nothing done yet by the way your honor with respect to your point that everyone would be wrong there's still two things that need to happen we're simply seeking the right for an entry of an order for relief the bankruptcy trustee would that one have to decide it's in the best interest of the state to commence an auction to sell the property and to satisfy his burden under three sixty three  which i believe this according to chrysler is well of c s t c versus one truck makes clear it's not only would your gerber said the bankruptcy court central administration for many credits fighting over us that it is also your honor as a chance cases that we came up with and they're in our reply brief is that on the fifty to forty the court the state court could fashion a remedy simply saying we cannot we either cannot as the case of say until one of the better spouse passes but we cannot because as pointed out the no that a spouse still resides in the property again this is not the end all of the filing of the bankruptcy still requires the bankruptcy court to make up finding that  balancing the benefits and the burden is that it's in the best interest of the state that is what we're seeking we're seeking a threshold issue we satisfied the statute if you look simply at applying the facts to the law your honor is on the three o three it is under sputum that children and we are sensitive to that and so is the bankruptcy code which codified that there is a balancing test on the three sixty three age in particular age four which says the court needs to balance the benefits against the burdens of selling the property so bankruptcy court determines whether or not to dismiss a case it is within his discretion not only to determine whether or not to dismiss but also to determine what factors to consider in that analysis and here the bankruptcy court wrote a very comprehensive well reason adequate remedy both the bankruptcy court and the district whether is one thing the question is what what is an adequate remedy i mean that's that's a question of law is not it is and i think here the article that would be reviewed yes and i think here that the adequate remedy is the remedy that the new york legislature provided and the c p l are provided a whole host of judgment foresman provisions they it we don't have a situation here where they they've got a judgment and said now what do we do we're we're at the end of the road they recorded their judgment they asserted only they levied they stay engaged in post judgment discovery those are all remedies that are available under the sea they got to set a certain point the road then and they decided well we don't like the remedies that are left for us under the state law so we're going to try something else they've got they've got the right under the sea clock to sell that feel that they are a part of and wouldn't be worth much if they couldn't sell of the entire apartment that's one thing and you know and and and secondly the question is is you know that whether the courts were even permitted permissible well that issue actually came up in the there there were two debtors the debtors argued that the creditors could not use three sixty three h because new york law did not allow the sale because fifty to forty allow the courts to fashion relief to prevent the sale the court there determined that that does not prohibit the sell and said the three sixty three was available in that situation the difference there of course was that those were voluntary cases where the debtors were seeking a discharge they were seeking the fresh start and that goes to the legislative intent of three sixty three age which is to balance a situation where a debtor is seeking a fresh start and a discharge of all of its debts against a situation where a creditor is is left watching a debtor obtain a discharge while he holds a valuable asset that's not that those are not the facts here this debtor did not seek a discharge just entered and not seek the protection of the bankruptcy court the petition credited to that in an effort to increase its recovery on his judgment was very inadequate remedy and that's brings us back to the adequate remedy so again the bankruptcy court and the district court both determine that the c p l are provided them with inadequate remedy because it does allow for the south it does perhaps allow for less of a recovery than the mexico but that's what the new legislator provided for georgia gerber's saying what was done here was in fact an attempt to use the bankruptcy court process you know you know are making a hundred i'm well we're effort by the petition prayer to use the bankruptcy code to sell assets of a non debtor new york new york law allows them to sell the interest of the debtor they don't like to be likely result of that but what they're doing here is trying to sell better assets or trying to sell the apartment out from underneath mrs mary and non debtor and their children that's not something that the bankruptcy court was designed designed to allow for she's not there the back of the court found that there's only one creditor in the case at the balance argue and it's him in the ordinary course and equities are taken into account i think the equities should be taken account also under the state law you have a situation where they are unsure whether they can sell they claim that they cannot solander state there's no guarantee that they can sell under three sixty three age where you've got no other assets no other creditors what you're going to have here is a chapter seven trustee appointed you going to go through the process of determining whether or not a sale can be achieved under three sixty three percent increased price in the house why doesn't that work to the murray would produce yes mr murray and if that happens they knock it out of the park they take all of the answers all the interest become subject to the to the judgment lien and they can sell the entire interest at that point isn't it yes if  they would he would take the entire interest would then be subject to the lien and that's another thing the judge gruber recognizes that you don't have a traditional purposes of an involuntary case here which is to prevent this a patient of assets and to to try to equalize distribution of creditors t the new york state law provides protections against dissipation of assets and provides a new billet to a certain lien which they have done mr murray does not dispute that if he tried to sell his opinion if the if the partner were so they would have to satisfy the lien that's not dispute they have the right to sell no one has said that they cannot sell they have not tried to sell they just got to the who do you agree that we've never really adequately defined what an adequate vanity is in the car i agree that this is a this is  a think a case of first impression and i think that's actually important to remember because there is no as far as we can sound i don't believe accounts of phone no reported case where this this method of judgment foresman was tried prior to this or sense and i think is as the judge noted this will become the judgment foresman norm if this is overturned you're going to have situations where you've got single creditors who have a judgment against someone who is not working who has no other assets but has an interest in a in a home with a spouse that's going to be the norm they're going to be involuntary cases in every one of those situations i as a bankruptcy practitioner would would be feel duty bound to recommend any client that was a judge or a creditor to consider filing involuntary case and your view is that under new york law in the context of  tenancy in the entirety it's enough that the you know the creditor can go after the interest of the specific debtor yes in addition to if they can go back through the they have already exercised still the rights of  recording their judgment of taking and taking discovery they can continue to to take the judgment foresman discovery of mr murray at some point the future does come into some assets they have the right to to subpoena to send information subpoenas in and make a determination try to attach try to try to seize those assets they still have remedies under the under the law they also have you know one of the things one of the arguments in this is that it was making is that immediacy has a value to creditors they are making that argument but there is no case that suggests that they are entitled to the best result the cases that are cited in the cases that they cite in their brief all talk about an adequate remedy none of them talk about a best result and that's what they think they're entitled to that's what the argument they've made is that they're entitled to the best result  valuable under any law and that's not that's not the state of the law is and it is a positive factor that we have only one creditor here pardon me judge today dispositive factor that we have only one creditor here it's not this it's not dispositive typically in a voluntary case but i think it's dispositive in this case because you've only got one creditor in one asset and the creditor already holds a lien on that single asset so nice of you that asset they are secured creditor there are no assets to distribute they do have an unsecured claim because the value of the asset is not as high as the value of their judgment but there are no assets to distribute on account of their unsecured claim and it's similar to some of the cases that they cited in their brief particularly  case where the case was dismissed because there are no assets to administer it's not unlike that of there is a single asset here there are no other assets to administer on to be on account of unsecured claims and it is that the rule that we you want to sue  judgment debt or property they have that right in the c p a or there is there is no decision that says that they cannot sell the new york legislature created that right they don't like that the chances of their recovery under that remedy but that is the remedy that that the new york legislator created and they can let the lean remain in place and renew it as appropriate as required under law and they don't do that that's right and that was one of the things i think judge gruber recognizes that there is no change there is no dissipation of assets here they continue to have of the cases dismissed they continue to have a l that lien continues to to ride along with the property and in a new york's new york city real estate market i think anyone would attest to the fact that the longer you hold property thing the more value it's going to have so the longer they wait the more value they're going to have and if he represents or is this is the issue of for suppression what is the rule that you want us to announce in connection with defining an adequate remedy under new york law in this case i think that the rule is that the adequate remedy here should be to the remedy that is made available by the new york legislature which is the c p l our judgment foresman provisions not simply the provision to some property but just the fact of the provision itself is  would be all of that is not it's not simply your honor that the provision allows them to sell it's all it's the entire body of judgment foresman statutes that that the ledge their trade in the c p r the section fifty two hundred all of the things that are available are what we're created to allow  suggests they're entitled to the best result they're entitled to the remedy that is available under non bankruptcy law it's not a thank you proceeding filed statements saying i have no assets but my interest in the house bill pound sand so if someone comes into my office i suggest to them that they strip themselves of all their assets put their assets in a multimillion dollar house and then say to your creditor you have an adequate remedy go to state court may be able get something adequate remedy under the law is the best remedy not only in our laws in general but the bankruptcy code in particular the whole idea of a u trustee system and the distribution of assets is to allow creditors the best possible result it would be silly and pairing to say that we have a result we can go to new york law know that it can't be sold because the non debtor spouse cannot be removed from the premises we have an adequate room remedy of law objectively in state court it's worthless subjectively based on what we can receive in bankruptcy court it's worthless the only adequate remedy is the best remedy it's the remedy that allows the creditors to monetize their return consistent with the bankruptcy code adequacy of law i subject to denote a review it is a legally and the bankruptcy court was focusing on the dead non dangerous spouse and the children but more importantly after what the debtor did here to say that us following the statute acted