something that the that did not attempt to do or will need to overrule penrod penrod doesn't deal with this statute right it doesn't know what's focus on this statute let's end and  see and i think it's as i suppose the record indicates because the bankruptcy it will bankruptcy judge came out one way and able bankruptcy panel came out the other it's not free from doubt tell me which of this three parts of the statute are implicated here all three well this is certainly not a foreclosure action is it well it is in the sense it is not a foreclosure action but the court needs to consider the history of what was going on but just don't know we're talking about bankruptcy judge said village park does not have a lien well that's not what the bankruptcy judge said actually with a bankruptcy judge said was for purposes of the bankruptcy they would be treated as an  well just five or sixty really void two meters of the simply say for purposes of bankruptcy we treat you as an unsecured well i'm not interested in what bankruptcy judge and i'm interested in what your client was doing and whether or not that qualifies under the statute and if the bankruptcy judge rules that ok you can't for cause that doesn't mean that there wasn't time for closing going on so what the bankruptcy judge rule really doesn't make any difference to me i'm trying to figure out is does the statute wan as all costs incurred for court for closing any liane does that cover taking steps that might lead to foreclosure as well as foreclosure itself is the best you can do is that this was steps leading for to get your butt up but i do believe that eighty three also resolves a two because if you don't have a lien to enforce number under a one you cannot collect from the property you are limited as now as an unsecured creditor to collect pennies on the dollar from the debtor and yes if you complete the case you do not have the lien would not be reinstate you do not have a lien to foreclose but if we focus solely on the penrod issue which is and force moved of the provision of the contract when village park filed the proof of claim the proof of claim was a fifty eight page document which attached to it the foreclosure declaration of miss hodges who's the managing agent for village park and attached to that was the  different fish the were in a chapter thirteen bankruptcy and somebody files a claim and the district court quite appropriately nobody now disputes with the dispute let's assume it's  appropriately says well the amount of your you have a valid meaning under state law i'm not saying you don't but for purposes of bankruptcy because the prior lien is bigger than the value of the property i'm going to put you in  unsecured class that's what happened here nobody said nobody said you don't know the money or julian was improperly recorded or you're asserting a claim that's not valid it just got put into the unsecured boxes supposed  if they had not objected to the motion to value collateral we would not be doing that's what that's what i'm focusing on your fees really didn't arise from their filing of from their claim your fees ar ose from a fight about valuing collateral absolutely correct and it's not within the statute yes because by filing the objection to the motion to value collateral to borrow the words of penrod they were insisting that their lien be inforced they were insisting that the either be paid in full in the bankruptcy and if not the plan would not have been confirmed unless the debtor surrendered the property proceeding to to determine the value of the property right that that that the narrowest well finish and what's going on right now just meant so  this as saying enforcing any provision of these documents or any other proceeding related to such a such a proceeding right well i mean this is not this is not a proceeding language in penrod the seven hundred seventeen statute is an action on a contract and that has been interpreted by california courts to mean an action to enforce or of void enforcement of a provision of the language of this statute different than the california statute for new statute gives fees to the prevailing party in an action that arises out of contract here gives fees for if we focus on three t says if you don't pay the assessments we are entitled to a lien on the product and if i understand this i understand that there's the source of their claim comes from and comes from a contract but i'm trying to ask you whether the california statute which awards fees as i recall to in actions arising out of contract is broader than this a three which talks about actions for enforcement of a contractual  fees under the california statute when you are the prevailing party in an action to enforce the lien or avoid enforcement of the lead provision no no what is the california state that's not a california statute is a contract stat what does the statute say it says an action on a contract and that language action on a contract has been interpreted by california courts to mean that the party who prevails who forces or avoids a foresman of a contractual provision that prevailing parties entitle to fee and so my question is and i don't know the answer to it so i'm not i mean i don't think you should treat it as hostile there's the language in eighty three which talks about fees that are arise out of an action well we talked about enforcement of a contract or i guess is in force when of contract broad enough to cover this proceeding i think  action on a contract might be he's in foresman of a contract on i believe it is and i believe if you look at the first port of ford twenty one j ten it says that all costs and expenses including res but tourney's fees incurred by or unbe half of the association for for doing any of these following things it doesn't even require an action indeed i have a client of my colleagues that you know penrod deals with the california statute there's certain overlap but it's really not the same case is going to different statute here and i prefer to talk about the way statute at the wire stench is an odd one because it doesn't require that you be the prevailing party in order for steps toward foreclosing is steps towards enforcing because if it's steps toward there clearly haven't revealed because what they wanted to do was they wanted to get a declaration that there was a validly and here because of the valuation on the other hand there's no show here at all that this is not a valid debt upon which they can can recover they can and force sounds as though there's no disputing at the moment that the debt is owed the only question is what form is going to be paid or paid partially or whatever so the underlying attempt to collect or enforce is still there and as far as i can tell they're going to win don't they just haven't won so far and the proceeding that they brought they were not the prevailing party so i come back to why do you tell me that they were doing something called enforcing within the meaning of the statute when it did it so looks to me down the road they will be able to enforce all your quiet maybe only get away you know pennies on the dollar because of the bankruptcy well  they were unable to enforce the leave i mean you must agree that the lien provision is in the contract you must agree that in in objecting to the motion to value collateral that they were not actually foreclosing they were taking steps toward foreclosing ok i understand that and if the debtor receives a discharge they will not be able to foreclose period but they were not able sticking with a three they were not able to enforce this provision and therefore they did not prevail in that effort for enforcing so you're saying because there's only one provision they can't enforce the only one provision therefore they are not prevailing even though in fact they will eventually be able to recover on the debt provided they can find some money in the pockets of your unfortunate client they will be entitled to some money as an unsecured creditor so i do not have a lien to the will it provided us that the debtor completes the plan they will no longer have a lien to enforce they will have to dismiss their foreclosure action they will settle for they will only receive six cents on the dollar they insisted that they be paid in full and if not that the debtor would have had to surrender the property the debtor still has the property the debtor is paying them as a secured creditor as a do direct result of them not being able to enforce doesn't apply to motions to value collateral but this harkens back to section three of the past right decision and the criticism in penrod of the bankruptcy court in penrod  when judge watt for wrote that it was an overly narrow reading of the statute and that the court erroneous lee held that section seven hundred seventeen applies only if the party defeats enforcement under not better but as my colleagues judge watt from is talking about an overly now reading of a california statute yes this is a statute very specific language and we're trying to figure out and i think maybe exhausted well what's what's in the boxes inside a specifically or older that the hawaii statute pertaining to go after a nice piece in the contract disputes analogous to the california statute seventy incident that doesn't apply nobody raised that issue but we're dealing with a case where at the end of the day you are seeking to enforce the association documents or here you know it killed me but it has to be your only the only source of your claim whether it's in or outside of bankruptcy because the association documents require the payment of fees and turn it into a lien if not paid right so your could if this if the question is in these cases does arise out of the association documents it's a pretty easy answers well i think it's not that simple i think what we have to do here is to focus about on one th so put aside here in force with question for a second see if we can agree on the easy part in the absence of the association documents your client would have no claim at all correct or there would not be we just have to focus on the language of the statue right and right so that now we're back to the question and i'm i'm trying to ask you is your filing of a claim in the backups the proceedings and asserting that by homeowners association i'm now assuming this is not what happened the homeowners association now files approval claim that has absolutely no basis whatsoever and you lose well it seems to me that i would clearly be covered under the statute so it's not i don't think it makes a difference that they are the ones who file bankruptcy the homeowners association does something and i think that is an action that would qualify under the statute provided it is one of the three kinds of actions that we have described here collecting foreclosing or enforcing and if the action taken by the homeowners association isn't forcing a debt based on part of a vision that clearly does not apply it seems to me that the statutes as an attorney is recover against you now that's not the case here that is to say there seems to be little dispute that in fact money is owed to the homeowners association and really the question is and what manner will be called acted and what proportion of eventually will be collected so the case i've hypothesized isn't the case in front of us but it cannot be and i answered that well because they filed for bankruptcy just as you can't apply well there's a part of the reports of you by the frivolous claim we're we're we're we're in the same wavelength on one is is this an action as the statute says right in force to enforce the documents and second who was the prevailing party right so  proof of claim but just to give notice and provided the additional information about the background just the difficulty and i understand where you're dancing around surely this was an action that had something to do with enforcing these  also attempting to enforce section six you know two of the contract where they say that they're entitled to their fees even as the losing party pursuant to section six  approved in effect were put into the unsecured box included their fees did it not the proof of claim was eighty percent fees oh i'm sorry the fees post petition that they're asserting as a set off where all of the fees that they incurred fighting us in their losing battle so they're invoking the contract attempting to enforce the provisions section six point zero two for the very same litigation which they lost and then in terms of the prevailing party now you've lost me so and make sure i understand they were seeking even after their last into bankruptcy proceedings they were seeking their fees for said yes and is that the order for and which the judge awarded fees seems to me that the bankruptcy judge awarded fees because they did not prevail in enforcing the lien if absolutely the bankruptcy judge awarded us fees right but they in this state relief motions and in the opposition to the fee motion said that they were entitled right there for your right ok now i understand you have me confused about the percent sure when their fees were thirty four thousand dollars for the very same litigation and that they were entitled to set off and that we owed them seven thousand or so dollars whatever the difference was and so that and the basis for that was the contract was section six point zero two of the contract they were tempting to enforce that provision of the contract and may i just go to the give tell me where in the record the district court rules on on that issue the bankruptcy well what hackers of course are yes what happened in the bankruptcy court was they made the set of argument and the judge said yes i agree that you're entitle to set off any assessments that came due post petition but they didn't lead dog and what they didn't tell us until the state relief motions that they weren't just asserting that they were due the end you will do is of one hundred thirty dollars they were saying no we have an independent right it's simply awarding you fees because they didn't prevail in proving a secured claim is in as opposed to an unsecured claim is there is that is there any place where i can find my daughter by the bankruptcy judge saying you get fees because they failed on yeah i'm sorry it's in one of the orders denying stay pending appeal terms that the prevailing party if i may in hawaii the prevailing party is the party who prevails on the main disputed issue i'll come back to this and i don't think this is just nit picking over words of the statute it's a weird statute does not require that you need a prevailing party but it requires all in the thing that they not be the prevailing murty because there may be certain circumstances in which you really didn't prevail all you did was find him off and for example the map seems to think then you can get your fees and we submit that they did not prevail in that they were able to enforce their contractual interest and they didn't prevail and then the question is is the action that they took or the things that they did and were laws actions contemplated  in litigation peculiar to bankruptcy provided that it is not expressly exclude no we all agree the statute well i agree just the statute is not excluded from application that doesn't mean it applies i mean