you to get us off on the wrong foot here and i hope you know i'm not on the wrong foot i read this review code because i represented friends and debtors and creditors in bankruptcy so i don't know that you can say it's a byelection but go nine see but that clearly does not apply because those are post petition transfers and the recording of the deed of the trustees deed of sale was not the gate of the transfer so so the bankruptcy court says it's three sixty two b but doesn't go to twenty four goes to three right correct and if you're not claiming that it's somehow an error not to do the same thing with the bankruptcy court  used are you by the district court i don't understand your question well the district court didn't go along with the bankruptcy court the district court went for three sixty two b twenty four correct now you're not claiming that it was there for the district court to use a different section or you know i understand that they have the right to make an independent and in fact we could make a different section ourselves correct all right extending so i'm just trying to make sure i understand your theory so if we're to look at b twenty four  status not apply if the transfer is avoidable under either section five forty four or avoidable under five forty nine right correct that's the district court's decision for us so if we go to five bankruptcy on august the tenth of two thousand and ten you should have done something by august the tenth of two thousand and twelve two years not exactly your honor i think that's the w it's abuse of discretion so i have to give the dis so after now give the bankruptcy court discretionary review here right ok so has she been pursuing her rights diligently that's the question i'm going to ask because that will tell me whether she has any right there will tolling right correct so in september two thousand and nine silver was given notice that she says she doesn't know about it correct but she doesn't pay it back she never does anything about it that is true so she's got a second mortgage she never pays she's got a man who comes and says people other people owe your own your property and then in june two thousand and nine there's a notice of default in the notice of file notice of sale which were fi diligently well if you look at the whiteman case and what did ok and what they're talking about i was thinking is stale information this isn't stale if somebody tells you somebody is perfect your property if you've got a second mortgage and you never pay it and you don't know what's going on with it but you know you had it and it isn't being collected and if he you and i know she doesn't have to go down the courthouse but really she does was going to be a foreclosure sale and that sale was continued i mean doesn't matter there was a notice filed that is correct and if she knows that and she knows somebody told her that somebody had purchased her property and she doesn't do it she never pays or second mortgage or even worries about it i don't know how that can say i persist i pursued my rights diligently well unfortunately relied on the advice of someone who was trying to get her a loan modification but the problem is that now you're saying and you agreed with me it's abuse of discretion correct so how can i say that the bankruptcy court would have thought this is without doubt something she should have got equitable tolly about because it's an abuse of discretion standard but the information that she got was completely incomplete well but just a minute we're not talking now about whether i would give her the creditor not we're talking about if you have those facts in front of you and you say you're not entitled acquittal tolling that i can say as the did as now the heloc order you've abused your discretion i don't understand how you can get me there i believe that you can get there because the information that she was getting was information we were in which well fella comes out and says you don't own the property  he doesn't least put her on notice to go in and i mean she knows she knows she's not making the payments but if she went and look she would have found nothing but did she go and look that is good not to let is not all through then she would have found nothing of that on her bankruptcy application caymans has i'm surprised you're here because we've just we just bought this property she knows she know she's not making the payments she can't be too surprised at this but she doesn't make any inquiry but doesn't she would she have an obligation to a list of that on her on her bankruptcy application i believe that a year later she probably should have ok so if we can get there under if if i'm just going under the statute five three to sixty two b twenty four of voidable under section five hundred four no because probably the statute of limitations was gone then we moved to five forty nine if i look at five forty nine and i read what you said to me i'm just trying to make sure i understand you do not argue as i understand your brief that rule august fifth the criteria for five forty nine if five forty why yes correct ok so what's the purpose of the three sixty two purpose of three sixty two is to protect against a creditor an issue a to transfers it's not in fact we've got a case dead on fourth forty two thirty five washington state court three twenty nine said third at one o eight one says the purpose of three sixty two is to protect against a creditor an issue a to transfers frankly that's what i thought the exceptions of three sixty two were about to protect against creditor initiated transfers so if the whole purpose of three sixty two is to protect against creditor initiated transfers then how can i suggest that because five forty nine in some in the history of the statute if you will is applied to de initiated transfers if five forty nine can only apply to debtor initiated transfers it seems to me what you're arguing under statutory construction is that there is no reason for three sixty two twenty four because five forty nine is sitting right there under three sixty to twenty four if you can only do that on debtor initiated transfers it's v twenty four as being a double negative and that you have to look at it while i like judge pappas and i think he's a wonderful guy any relives right down the street from me and he's got an office right in the same court room with me i don't agree with him there is no way i can read three sixty two twenty four even with the double negative and make it apply in this situation so i answer my question if i don't agree with them how can why do you even have three sixty two twenty four on the books if it is only to do with that or an issue a to transfers because i think in that particular subsection of three sixty two they brought in that code section five forty nine which is in title post the titian transfers and in this case there was not a post petition transfer all right so we have to back up a year there's going to another you're going to another fire control making under five forty nine but i'm listing i'm only talking about statutory construction a five forty nine and your statutory construction argument on five forty nine is that it's only a debtor initiated ones and therefore it is cannot be used all i'm trying to do is say to you i do not know under to under the terms of statutory construction how this could only be debtor initiated because if it's only debtor initiated then you can never have three sixty two twenty four is an exception i'm just having you explain that to me you can it with you i don't have an explanation i just want to make sure because i'm reading through this stuff i'm representing debtors and creditors in my old life and i'm trying to understand your argument so thank you very much for please the court your honor i too i've been doing bankruptcy law for close to thirty years and i spent a lot of time scratching my head over section three sixty two  how possibly given the cases from the ninth circuit could we have three sets to be twenty four how could it apply and the only thing that i could come up with which is what we argued in our brief is that although there are cases from the ninth circuit that says that section five forty nine only applies when the debtor transfer something the only thing that makes sense to me and that's why it's in our brief is that well by putting when congress changed the bankruptcy laws in two thousand and five and added subsection twenty four the only thing that they could've been thinking of were the only thing that makes sense to make the bankruptcy code work is take me through why the bankruptcy court is correct because i'll be fair i tried to give some explanation of why the bankruptcy court would be correct and i'd have to side with your opposition ok i think the only way you win is if the district court is correct well again certainly has a matter of law whether the district court picked the right section of the bankruptcy court pick the right section at doesn't matter i understand but if i agree with or if i come down the bottom line i say a lot of presence at near it doesn't seem to work if you're going to do statutory construction so i got to go the alternative convinced me the bankruptcy court was right ok so we have so the first thing that we need to do is we start with section three sixty two b three right and section three sixty two b three then sends this down to section five forty six a c section five forty six b one friday and section five forty six b one a refers to three sets one of them just doesn't apply but the first section five forty four refers to section and then of course it refers to section five forty five that doesn't apply it refers to and then the last section that we  more from me on that i have to do so but i mean it's quite clear to me that when somebody comes and knocks on your door and says you don't own this property anymore we do and when you have a notice of sale thing your property is going to be sold at a foreclosure sale and when we have the debtors conduct which is the debtor does nothing about this it would be very peculiar to me if you take everything else and put it to one side that you're not making mortgage payments anymore it's like deed holder just went off into the ether so how they get past that i just don't know but let's just assume for a moment that they do well be fair i'm going to shortcut seems to me the relevant question here is whether california's state law will permit the perfection of the blue logs interest in the party there were recording of the trustees deed to take the trustees legal property to the legal title to the property and will and m b be or you it seems concedes that california civil code section twenty nine twenty interest in the property well we have civil see i think i mean i'm thinking you're right in the boy's right and i guess so if we take if we take property is on notice of everything that the buyer would know if the buyer looked at the if the buyer looked at the title the chain of title so and that law applies to every realistic transaction state so under that law let's just say hypothetically for a moment i was going to buy the property that we have here in question the bulldogs have not recorded their i come in i want to buy this property i the offer is accepted i go that she would title company that's the way it works title company prints out a list of all of the items that would deal with this property and what would i see when i looked at the record for this problem i would see that there was a notice of sale that somebody was going to foreclose now under california law i would not be in a position i don't think to simply say oh well i could ignore that because under california law section nineteen i would call the holder of the second trust deed and i would say did you have a foreclosure sale on whatever they was august nineteenth of two thousand and nine and they would say yes and i would say who bought the property and they would tell me the names of the buyers of the bowlegs at that point acting like a reasonable person which is what section one thousand requires me to do if i went through with the transaction if i went through with the transaction having full knowledge that the bowlegs that bought this property even though they didn't record their deed if the ball act subsequently came along and said we win and you lose joe shoulder you should've bought this property you were unnoticed and we owned it i'd lose that is consistent with the prior pieces of this court which don't deal with a title record but similarly they deal with deeds in one of the cases of this court somebody had  was you were on notice you were i noticed somebody else on his party the wisemen case which was your second case on this point that was the one where the guy got the civil code would be required to go out of that house and find out why people are living here now those cases admittedly don't deal with a title record but i'm going to say i don't know whether i  apply those cases to this particular man because he should and here's why because under section nineteen of the civil code there's a couple of kinds of notice one of them is what knowledge would you have if you went out to the property and you saw what was going on those are the cases this court has decided this court has addressed this second group of cases where you haven't gone out to the property yet but you but you still are required to look at the title record and we certainly can have real estate transactions in this city and i'm sure throughout the country where people are not required to look at a title record and if you saw the title record here there's no ambiguity about this it's acknowledged there is no issue of fact you look at the title record as i explained you were going to see that somebody was going to sell this property now had you done that under section nineteen you could have bought the property and and had a right to that property that was senior to my clients you couldn't do it and that is why that is why when we were going down our chain of statutes that's why section five forty six b on is the next link in the chain and that is how it applies so now we go to section five forty four you talked about the statue of limitations already you don't need to hear any more from me on that i presume with respect to section five hundred forty three in any event if i lose the statute of limitations you're still in the same spot i was going to say you're in the same spot as would be three aren't you rak correct and  section forty nine just doesn't apply in which case the only thing this court would have to look at is section five forty four well i don't know whether i can write five forty nine out and i don't with all due respect to mr shoulder who is a friend of mine i believe made an error in discussing section one thousand of the california civil code this is a race notice jurisdiction the one who records first is the winner so it doesn't matter that the title record would show that there was a notice of default and when you go back to weisman they talk about how long it was in this case it was eighteen months from the notice from the time of the from the time of the notice of sale to the bankruptcy and it talks about the staleness of that notice so  deed the trustee to trustee trying to avoid regard it's a pretty common scenario so i don't think that they can prevail on that point and the other thing about progress go is silver was the one in the property unmolested no one was bothering her no one was asking her for pain so you know there's good facts and bad facts on both sides but i think when you get to the bottom of it the equities lie with silver because to be real candid with the blogs did was need they intended to leave her in that property it with a plan to leave her in that property they wanted her but would it have been a favor to her to have to foreclosed on her and got her off the property she had places to go but yes but if you have places to go why didn't she go there i mean as opposed to having to as opposed to being forced to go there by the logs and forcing their rights it seems to me the backing off or the collecting and he read from her though that specific in the record they agreed not to bright asked for and so i guess i'm having a hard time figuring out what the what what the what was mean about letting her stay there well there's no evidence in the record but the question would become what's the rental value versus the payment and that's not in the record the problem i have with your argument is this seems to me that one could say they were mean but it also seems to me that one could easily say they were nice they were paying your second mortgage and she never cared say that but if you look at the top line the bottom line is the second mortgage was foreclosed they put it out they paid it off she did never have to pay it they never took her out correct and the reason they didn't take her out is because there was no value in the property they saw no reason to expend funds to take her out and there was nothing they could get from over the first so they didn't worry so what they did is they paid her second mortgage and continued to pay it and continue to bad and she got the benefit that's one way to look at it which is not mean as you're suggesting ok i'll withdraw the word mean i mean time she also cleared her rear of his on the first mortgage through the chapter thirteen plan and so she was paying more than the mortgage she was making that make up and that and you know so over the course of the time i think at the time w