time with mr sullivan i will be arguing for eight minutes five minutes for the main argument and three minutes for rebuttal the trial court got it right at the sentencing hearing judge borroughs had made a decision and dependent research that the automatic stated not apply there was absolutely nothing that jennifer skurka could do to prevent judge burrows from proceeding short of getting into an argument with the court which would have put jennifer skoal in directly her attorney and possibly be in contempt of court for arguing with the court but there but there's no evidence the court the court asked the parties do you have any  already made my decision she's like i think that there's no reason to stay here but i'm asking for the parties and put it as far as i can tell from the record i think judge brown stated on the record that in chambers she had indicated she had done independent then schedule the sentencing hearing also scheduled a purge date which had passed by the time of the sentencing hearing and the sensing hearing was an issue between a court and a contempt or not between a creditor and a debtor us attorney said was that the that the content to not been purged well how did but your client eventually reach some type of settlement after ten days in jail  that was it was that with court involvement or did what was it was unclear to me as well what was the scope of that settlement that you stayed contempt proceedings well that well the court was obviously a participant because the court signed the entry  and the parties apparently came to some type of an agreement there but the court had to approve doesn't that suggest that there was some participation of the party is i mean that's a continuation of the case of the cases being continued whatever you call it contemp eating well it wasn't contempt for sitting it was a sentencing proceeding i mean it's it's odd to think of a sentencing proceeding where one of the parties can say oh never mind i'm going to settle now so that you can get out of jail well that did occur obviously but again at the time of the sentencing hearing which was not a collection action in fact excuse me judge that the trial court made a factual determination that there was no attempt to collect the debt at the sentencing hearing and i think that's a critical thing and the bankruptcy appellate panel apparently ignored that factual finding it was your doing that this was a criminal  it it was a crimp it was a criminal contempt in the sense that there was a purge date that had passed and some of the rooke case where there was a purge date that had passed the court to uphold the dignity of the court sentenced wallenberg but i think that as i read as i read the order if he came up with the funds are day ten he would have been let out of jail that is true however this analysis of civil versus criminal contempt is irrelevant in the context of judge burrows determining that the state didn't apply so whether it was criminal or civil it really has nothing to do with judge b they continued to stanch of the question propose various scenarios none of which were practical thank you a may please the court good morning my name is brian sullivan and i have the pleasure of representing the defendant pellant liz the gentilly in this appeal i would urge this court to reverse the bankruptcy appellate panels determination in affirm the bankruptcy court dismissal of mr will burst claims for two reasons st the worker feldman talk true blue crew per precludes the bankruptcy court from reviewing the domestic relations court determination that the automatic stay did not precluded from incarcerating mr will appear for his contemptuous conduct into the bankruptcy appellate panel ignored at least three factual findings by the banks to court that were critical to its determination without determining that those factual findings were clearly erroneous as it relates to the worker feldman doctrine this court has repeatedly concluded that the court in which the litigation claim to be state is pending has jurisdiction not only to determine its own jurisdiction but more particularly whether the proceeding pending before is subject to the automatic stay that is exactly what judge borroughs did in doing our own independent research in coming to the conclusion that she had the ability to proceed with the  case that that non bankruptcy court or agency proceeds at its own risk when it determines things that could be subject to bankruptcy courts thore it does your honor but i believe that the broker philip and doctrine then precludes a district court from reviewing the the state court entities determination as to whether it has jurisdiction you know this court after the exxon case is determined that the rubber feldman darkens of the central issue to determine whether or not the plaintiffs claim in this matter is predicated upon in injury or arising out of a state court judgment and that is fundamentally the issue that's before this court and it was before the bankruptcy court the plaintiffs determination of the plaintiff claim that he was injured as a result of the domestic relations courts determination that he should be incarcerated for failing to purge and it's our position that under the rocker feldman under the numerous decisions from this court that the bankruptcy court made three critical findings which the bankruptcy appellate panel ignored and which were not clearly erroneous st and foremost the bankruptcy appellate i'm sorry the bankruptcy court judge in pa bankruptcy the only matter before the metric relations court on the october th hearing was the sentencing not mr will of burrs contempt the court went on to hold on page forty five of the transcript that the only issue before the domestic relations court was the enforcement of the court's order of contempt and that the defendants in this case could not have filed a motion to withdraw their motion for contempt because that issue had already been ruled upon  by the domestic relations court it was clear both from the transcript of the domestic relations court proceeding as well as from the testimony that was presented before the bankruptcy court that the only issue before the domestic relations court was the sentencing of mr hearing not qualify as a continuation of the percy it's not a continuation of a proceeding to collect a debt from a debt or it was a proceeding within which the court was exercising its inherent authority to enforce its prior orders that this that mr wall between the plaintiff mr will of her and the defendants and so we would submit that for those reasons the bankruptcy court properly disposed of the claims against the clintons in the bankruptcy appellate panel the provision that permits debtors to get a breather take a break and then commence with a orderly attempt to either repay debts in a chapter thirteen or liquidate in a chapter s term and everything happens saying it seems quite strange to me to think that they should be on the hook for violating an automatic stay in which they expressly indicated to the court that the state should apply so how would how would how would your legal rule that you're going to have us right deal with that scenario and then that is next the question would be there have been other courts that have addressed that not in our circuit but the  goodson case had a similar scenario with parties that had been at war for quite some time and trial the court decided on its own volition to declare this is suddenly a criminal contempt were not civil contempt anymore now the the other party went along with it and they still went through the trial and the the court found that there was a violation of the stay because even though the court did it on its own volition the other parties  order to avoid liability under violating i think i mean i think i think that that would end up in the very fact intensive analysis in that situation clearly a part the other party is still subject to conte when they're relying on state court judges it seems seems to me to be generally speaking with one parties to rely on judges to him and questions for them i mean how would you say if they've been willfully violat where the state court judge said that the state doesn't even apply well and in this situation your honor the the court did indicate that the judge indicated that she would accept any agreement that the parties would take so she was open to suggestions also the motion for contempt although the judge already found mr weller in contempt it isn't actually collected at the only purpose for the contempt action was to get the was to get mr ball over to pay the property settlement the entire action was attempt to collect the debt so the party who that the judge would let's say the judge said you know what this is this is not a stay this is not stayed we're going to go forward and they proceed to make the payment they're collecting the fines they're witnessing everything going on and they put the court into action the court only asks upon filings of parties complaints being filed most little of what was before the foreclosure is entered and the sale i requested the party has to do nothing else until the court sets it several months down the road it's already well established that even though there is no other action taken if that foreclosure sale happens it should've been stayed and it's a violation whether it's willful or not if it's months down the road that's that's another situation there and there are several kill them so the bankruptcy judge that there was nothing to be stayed because the court made an and a decision that the matter couldn't be stayed because it was just a follow through of the contempt and that was what the the bigger of the court made a ruling that because the contempt was found prior to the sentencing and prior to the bankruptcy filing that there was nothing to be stayed and then the court also found that even if there had been something to be stained that the that the defendants had no duty no affirmative duty to take any action that they could stand there in the fact that they stood there was ok so if we conclude that the was that ruling was erroneous it would go back for trial  put on some testimony that they took some affirmative action to to try to stop the case practical matter what affirmative action they have taken short of saying we're just from stay that's what the indicated they could have done that they could have filed something after even assuming the judge that they opposed it and the judge went forward with the sentencing they still could have stopped things the entire the motion you just requested but there was no need to file a motion because of the judge's own representation as to the parties it seems that they're really putting them between a rock and a hard place here where you have a century you're telling them that they should have violated what the judge told them and generally we think we like it when the parties fall which is just what and that is that is more complicated question i do think that we don't even we don't even get to that point because there was absolutely no attempt to do anything and the matter was so what if they didn't i mean you've got a church who says look i'm willing to hear anything you say but i don't think this applies to me and and she has jurisdiction to make that determination so what are they supposed to do i mean his own lawyer didn't even come up with anything that is part of the attorney that he had representing him there was not a bankruptcy attorney and he was relying on the notice of state that had been filed by the by the bankruptcy it was the bat correct when it said the debtors lawyer doesn't have any obligation to do anything about this even w whether there is any law that has a bearing on this when i think at that time at the time of the trial at the sense of hearing i think that he i don't know that he would have been able to pull up case law on the spot to do that and he did inform the mean her lawyer knew and she knew that the court understood that there was a bankruptcy stay that is cracked but the entire principle of the bankruptcy code is to allow debtors a fresh start if we if we require the debtors if we shift the burden to the debtors in every situation to take action then we are just completely isn't that they consider isn't remitted by the because we can't i don't know how we undo ten days of yeah you know about incarceration but yes i mean certainly whenever there is a violation you get your you can get your damages back whether it is an actual monetary for example if someone was garnish past wages were garnished after a filing they would be entitled get those garnished funds back and that's a that's well established we do that that happens constantly this is just an more of an unusual situation but if it's always incumbent upon the debtor to take action the court asked mr wilbur's attorney at the hearing and the defendants say well it was it would been a futile act to try to say anything but the judge asked the parties the judge asked the parties how they want to proceed the judge gave opportunity for someone to say hey let's take a step back and let's make sure that we're doing this correctly the whole action was to collect a debt in terms of the  when do you do you have in the cases where the injury comes out of the address the issue say that the proceedings are parallel of the the state violation is a is a parallel action and although it did come from everything is going to come from a prior order if there isn't if there is an injury that comes from a prior action from a prior decision it's going to be coming from that but the state violation itself is not the the court is not opposing the sentencing saying that that is what caused the injury other the the bankruptcy court still has the ability to determine they have they have a parallel claim that runs along side the other claim and they can make a determination of the stay and then the court is any state court that makes a determination of a bankruptcy stay if they're going to do that they need to do it correctly they need to they need to actually get it right otherwise there is a claim in the bankruptcy court for a review of that determination ok so i'm asking you do you have a case where the injury being claimed in the bankruptcy court arises from stay i don't have another i don't have a specific case your honor i guess i think that the the complicated issue is that the injuries always going to result from whatever occurred in the lower court by the injury is the steve violation is a separate claim in the bankruptcy court for what happened in the lower court the biggest of course not saying that he should have been sentenced because but then that was that limits that district court's rulings to new claims or not appeals of a state court claims but the th circuit suggested that that doesn't even apply to the back bankruptcy statute i think you cited in your brief and i  i i do believe so the it is that your position that it doesn't it doesn't apply in again the court's not reviewing the the the judge's ruling in the domestic places court was just that he was sentenced a sentencing is not a attempt to collect a debt the sentencing hearing is between a court and a contempt for the analogy of foreclosures and  situations involving a creditor and a debtor not a court and a contender is what we have here but the court's order was clear that the way to get out was to pay what do you know that that's true except for one thing jennifer could not anticipate that that was going to be the court's order on the sentencing that did occur but again if if if if there was a stay when there's a trial whether even if the attorney had said you know we we have some real doubts whether arguments in equity as to what the you know the pend least should be if any at the center of but i don't know that that that you carry the day on the question whether there's any d duty of the creditors lawyer to to say i don't think you can go forward there's a duty certainly to notify the judge burris that there's a bankruptcy filed  and again to say to judge burroughs judge you're wrong the judge burris would say that's nice but this is my ruling i don't think the stay applies well but that but but she didn't say judge you're wrong no that's that's true except that they would it was clear that at the hearing the sentencing hearing the judge burroughs had made her decision to start arguing with the judge quite frankly when a judge makes a decision  it's time to accept the decision and if you believe the court is wrong to appeal the court not to get into an argument with the court or to sue the court as the path that mr wu aber decided to go down judge b just briefly appleby's counsel continues to represent that with that what occurred at the sentencing hearing was an attempt to collect a debt that flies in the face of the factual finding made by the bankruptcy court judge on page forty four of the transcript where she specifically concluded the defendant's actions at the hearings were not an attempt to collect payment or to negotiate a debt the next question i want to address is whether judge boras was wrong including that she had the ability to sentence mr will over this court in dominick restaurant of dayton versus manta judge batchelder one of your decisions concluded that it is it is within a court's inherent power to take whatever steps are necessary to ensure that those persons within its power comply with its order we cannot conceive that congress intended to strip a county start to strip a court of this power and instead permit a party to blatantly violate direct orders of the court and then seek shelter from a bankruptcy judge if it were so the court's orders could be rendered meaningless so we would submit that it would be futile for the defendants have to have attempted to convince judge boras that she was incorrect in her determination that she had the ability to proceed with